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Application by Elizabeth Marie Robinson

Application by Elizabeth Marie Robinson

Case [2015] NSWSC 1387 17 September 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application by Elizabeth Marie Robinson [2015] NSWSC 1387
Hearing dates: 1 and 2 September 2015
Date of orders: 17 September 2015
Decision date: 17 September 2015
Jurisdiction: Equity
Before: Rein J
Decision:
See [34]

Catchwords: EQUITY - Succession - Will construction - Clauses which state that a legacy and residue are to go to the deceased’s son unless he “dies before attaining a vested interest” - Whether interest in property is vested - Meaning of “vest”
Legislation Cited: Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Succession and Probate Duties Act 1892 (QLD)
Cases Cited: Arnott v Kiss [2014] NSWSC 1385
Austin v Wells [2008] NSWSC 1266
Barnardo's Homes National Incorporated Association v Special Income Tax Commissioners [1921] 2 AC 1
Beattie v Sainsbury [2003] NSWSC 499
Browne v Moody [1936] AC 635
Commissioner of Pay-Roll Tax v R G Elsegood & Co Pty Ltd [1983] 1 NSWLR 223
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; (1964) 112 CLR 12
Fell v Fell (1922) 31 CLR 268
Gibb-Maitland v Perpetual Executors Trustees and Agency Co (WA) Ltd (1947) 74 CLR 579
Girardot & Anor v Perpetual Trustees Australia Ltd & Ors (BC 9802611) 12 June 1998
Greenhalgh v Bates [1870] 2 LR 47
Hume v Perpetual Trustee (1939) 62 CLR 242 at 256
In Re Edmondson's Estate (1868) LR 5 Eq 389
King v Cullen (1848) 2 De G. & S. 252
Leader v Duffey & Ray (1888) 13 App Cas 294
Marks v Trustees Executors and Agency Co Ltd (1948) 77 CLR 497
Official Receiver in Bankruptcy v Schultz [1990] HCA 45
Perpetual Trustee Co Ltd v Wright Re Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR
Perrin v Morgan [1943] AC 399
Re Boden [1907] 1 Ch 132
Re Faulwasser (decd) [1967] VR 182
Reid v Wishart (1898) 16 NZLR 218
Reilly v Gengos [2006] NSWSC 139
Re Morris (1857) 5 W.R 423
Re Richard Arnold's Estate (1863) 55 ER 329
Re Wrightson Battie – Wrightson v Thomas (1904) 2 Ch 95
Sillick v Booth (1842) 1 Y. & C.C. 121
Towns v Wentworth [1858] 11 Moo PC 526; 14 ER 794
Watson v Ralph [1982] HCA 35; (1982) 148 CLR 646
Young v Robertson (1862) 4 Macq. 314
Texts Cited: ‘Construction of Wills in Australia’ (2007, LexisNexis Butterworths)
‘Theobald on Wills’ (2010, 17th ed, Thomson Reuters)
‘Williams on Wills’ (2008, 9th ed, LexisNexis Butterworths)
Category: Principal judgment
Parties: Elizabeth Marie Robinson (First Plaintiff)
Jeanette Thomas (Second Plaintiff)
Ludwig Haskins (First Defendant)
Sandra Vandahl (Second Defendant)
Amelia Haskins (Third Defendant)
Representation:
Counsel:
J. Mitchell (Plaintiffs)
D.L Warren (First Defendant)
A. Hill (Second Defendant)
L. Ellison SC (Third Defendant)
Solicitors:
Bertollo Advisory (Plaintiffs)
Herd & Associates (First Defendant)
Armstrong Legal (Second Defendant)
Marsdens Law Group (Third Defendant)

File Number(s): 2014/263701
Publication restriction: nil

JUDGMENT

The late Alida Elzabe Haskins (“the testatrix”) died on 5 December 2012.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Elizabeth Marie Robinson

Details

AGLC: Application by Elizabeth Marie Robinson [2015] NSWSC 1387
Case: [2015] NSWSC 1387
Decision Date: 17 September 2015

CaseChat Overview and Summary

In the matter of the application by Elizabeth Marie Robinson, the court was asked to interpret the terms of a will in relation to the disposition of the deceased’s estate. The deceased had left a legacy and the residue of their estate to their son, with a clause stipulating that the bequest would not take effect if the son died before "attaining a vested interest." The applicant, Elizabeth Marie Robinson, sought clarification on whether the son’s interest in the estate had vested and, if so, whether this meant the son had indeed attained a vested interest in the property.

The court was required to determine the precise meaning of the term "vest" in the context of the will. It was necessary to understand whether the son’s interest in the estate had vested prior to his death and, if not, whether this meant that the bequest to the son would not be effective. The court had to delve into the legal principles surrounding vested interests and apply them to the specific circumstances of the case. It was also tasked with interpreting the will in a manner that gave effect to the deceased’s intentions, while adhering to established legal principles.

The court found that the term "vested interest" in this context referred to the son’s absolute right to receive the legacy and residue of the estate. The court held that the son’s interest was not vested at the time of the deceased’s death, as he had not yet attained the requisite entitlement to the estate. Consequently, the clause stating that the bequest would not take effect if the son died before attaining a vested interest did not apply, and the applicant was entitled to the legacy and residue of the estate. The court’s interpretation was based on a careful analysis of the will’s language and the applicable legal principles, ensuring that the deceased’s intentions were faithfully executed.

The court ordered that the legacy and residue of the estate be transferred to the applicant, Elizabeth Marie Robinson, as she was the rightful beneficiary under the terms of the will. The decision was grounded in the interpretation of the will and the application of legal principles regarding vested interests, reflecting the court’s commitment to upholding the deceased’s intentions while adhering to established legal standards.

Orders