Judge Fails To Win Share Of Estate

The Age

Wednesday March 19, 2008

Peter Gregory, Chief Court Reporter

A LEGAL challenge by County Court judge John Smallwood over his mother's $1 million estate has failed, with the judge hearing the case suggesting it "didn't get off the ground".

Justice David Byrne yesterday upheld the will made in 2005 by the then 85-year-old Ethel Mary Smallwood, who left the bulk of her estate to her two daughters, Mary-Lyn Smallwood and Kealy Smith.

Sitting in the Supreme Court, Justice Byrne said the will reflected Mrs Smallwood's desires, and was not made as a result of pressure or influence from her daughters. Mrs Smallwood died in 2006, aged 86.

Yesterday, before awarding legal costs against him, Justice Byrne asked Judge Smallwood's legal counsel, Shane Newton, if there was any real prospect that the case was going to "get up".

"It was a very serious allegation to make, and it not only failed, it really didn't get off the ground, did it?" he said.

Earlier, Norman O'Bryan, SC, for the sisters, said Judge Smallwood had a long history of sad relations with his mother and did not visit her in the last part of her life. He said it would not be surprising if Mrs Smallwood had had enough and had cut him out of her will.

Responding to the outcome last night, Judge Smallwood said: "I am old enough and ugly enough to accept a loss in court."

He said the court was told through legal submissions and his affidavit that he had no concern to receive a financial benefit from his mother's estate.

"My concern was to get my nephews and nieces their dead fathers' shares," he said.

Earlier in court, Mr O'Bryan said Judge Smallwood rejected an offer last August that would have tripled money given to the four children of his deceased brothers Paul and David Smallwood.

© 2008 The Age

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