Application of Marais - [2009] NSWSC 206

CITATION: Application of Marais [2009] NSWSC 206

JUDGMENT OF: McLaughlin AsJ

EX TEMPORE JUDGMENT DATE: 16 February 2009

DECISION: 1. The Court gives its opinion, advice and direction upon the question posed in paragraph 14 in the amended statement of facts filed on 13 February 2009 as follows:
(a) No;
(b) Yes;
(c) Yes;
(d) No;
(e) No other steps should be taken by the Plaintiff executor in relation to the gift;
(f) No other person need presently be joined as a Defendant to the proceedings.
2. I reserve liberty to apply.
3. I order that the costs of the Plaintiff be paid out of the estate of the late Charles Francis Peterman (“the deceased”), such costs to be on the indemnity basis.

CATCHWORDS: SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - judicial advice - meaning of phrase "my remaining relatives" - whether void for uncertainty - distribution to persons entitled upon intestacy - distribution per capita, not per stirpes - Benjamin order.

LEGISLATION CITED: Probate and Administration Act 1898

CATEGORY: Principal judgment

CASES CITED: Whithorne v Harris (1754) 2 Ves.Sen. 527; 28 ER 337
Smith v Campbell (1815) 19 Ves.400; 34 ER 566
Re Benjamin [1902] 1 Ch 723
Re Knox (Deceased) (1910) 29 NZLR 1179
Re Griffiths [1926] VLR 212
In the Will of Walker [1943] 43 SR (NSW) 305
Re Eleanor Taylor’s Estate and Will Trusts [1969] 2 Ch 245
Re Plato [1989] 2 NZLR 360
Re Boyd (No 2) (Supreme Court of New South Wales, 19 July 1995, unreported)
Re Fox [1997] 1 Qd R 43
Public Trustee v Solah [1999] NSWSC 660
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188

TEXTS CITED: Theobald on Wills, 15th ed (1993)
Tristram & Coote’s Probate Practice 29th ed (2002

PARTIES: Allan Gordon Marais (Plaintiff)

FILE NUMBER(S): SC 2772 of 2007

COUNSEL: Mr C. Hodgson (Plaintiff)

SOLICITORS: Geoff Williams & Associates (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 16 February 2009

2772 of 2007 Application of ALLAN GORDON MARAIS

JUDGMENT

1 HIS HONOUR: By summons filed on 17 May 2007 Allan Gordon Marais seeks the opinion, advice or direction of the Court upon the facts and questions contained in a statement of facts, pursuant to section 63 of the Trustee Act 1925. Subsequently, an amended statement of facts was filed on 13 February 2009.

2 The plaintiff is the executor of the estate of the late Charles Francis Peterman (to whom I shall refer as “the deceased”). The deceased died on 20 February 2004, leaving a will dated 9 July 2003. Probate of that will was on 15 August 2005 granted to the plaintiff, who was the executor named therein. The will, which is handwritten on a printed will form, provides in clause 3 as follows, “I give one half of my estate to my remaining relatives and one half to Allan Gordon Marais.”

3 The inventory of property discloses assets…

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 of Marais

Details

AGLC: Application of Marais [2009] NSWSC 206
Case: [2009] NSWSC 206
Decision Date: 16 February 2009

CaseChat Overview and Summary

The Application of Marais involved a dispute over the interpretation of a will's phrase "my remaining relatives." The testator had left his estate to his "remaining relatives" in equal shares. The issue was whether the phrase was uncertain and thus void, leading to a distribution according to the rules of intestacy, or if it was capable of ascertainment and could be enforced. The court had to determine the meaning of "my remaining relatives" and whether the bequest was valid.

The primary legal issue before the court was whether the phrase "my remaining relatives" was sufficiently certain to be given effect or if it was void for uncertainty. If the phrase was deemed uncertain, the estate would be distributed according to the rules of intestacy, potentially altering the intended distribution. The court had to consider the testator's intent and the broader context of the will to ascertain the meaning of the phrase. The court also had to decide if the distribution should be per capita or per stirpes, which could significantly affect the beneficiaries' shares.

The court found that the phrase "my remaining relatives" was not void for uncertainty. It held that the term was ascertainable and capable of being given effect. The court reasoned that the phrase referred to the testator's relatives who survived him, and it was possible to identify those relatives from the context of the will. The distribution was ordered per capita, meaning each surviving relative would receive an equal share, rather than per stirpes, which would have allocated shares by family branches. This decision ensured that the testator's intent was respected and the estate was distributed accordingly.

The court made an order that the phrase "my remaining relatives" was valid and enforceable, and the estate should be distributed equally per capita among the surviving relatives of the testator. The court also directed that the estate be distributed according to the rules of intestacy in the absence of ascertainable relatives, thereby ensuring that the estate was not left without a distribution in unforeseen circumstances.

Orders