Legal Research
Cases
Arnott v Kiss

Arnott v Kiss

Case [2014] NSWSC 1385 14 October 2014

Will Construction

Clause Interpretation

Rule in Saunders v Vautier

Class Gift

Succession Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Arnott v Kiss [2014] NSWSC 1385
Hearing dates: 30 September 2014
Decision date: 14 October 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
See Paragraphs [8], [67], [68] and [69]

Catchwords: SUCCESSION - JUDICIAL ADVICE - WILL CONSTRUCTION - Clause determining the manner in which residue of the deceased's estate would be dealt with - Whether Clause operated to cause residue to vest in interest in named beneficiaries from the date of deceased's death or whether a gift subject to a contingency - Rule in Saunders v Vautier - Whether a "class gift"
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Austin v Wells [2008] NSWSC 1266
Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep)
CPT Custodian v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98
Duffield v Duffield (1829) 3 Bligh (NS) 260; 4 ER 1334
Dwight v Commissioner of Taxation (1992) 37 FCR 178
Fairbairn v Varvaressos [2010] NSWCA 234
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268
Glenn v Commissioner of Land Tax (Cth) [1915] HCA 57; (1915) 20 CLR 490
Hatzantonis v Lawrence [2003] NSWSC 914
Hickling v Fair [1899] AC 15
In re Francis [1905] 2 Ch 295
In re Hume, Public Trustee v Mabey [1912] 1 Ch 693
In re Ussher, Foster v Ussher [1922] 2 Ch 321
In the Estate of Epheser, Deceased [2008] SASC 311
Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799
Kingsbury v Walter [1901] AC 187
Krstic v State Trustees Ltd [2012] VSC 344
Leake v Robinson (1817) 35 ER 979
Lockrey v Ferris [2011] NSWSC 179
Marks v Pope [2001] NSWSC 105
Muir v Winn [2009] NSWSC 857
Peoples v Simpson [2005] NSWSC 355
Re Butler [1980] QdR 601
Saunders v Vautier [1841] EWHC Ch J 82; [1842] EngR 629; (1841) 4 Beav 115; (1841) Cr & Ph 240; 41 ER 482
Tasmanian Perpetual Trustees Limited v Marshall [2014] TASSC 26
Warton v Yeo [2014] NSWSC 494
Texts Cited: G L Certoma, The Law of Succession in New South Wales (3rd ed, 1997, Thomson Reuters Lawbook Co)
Halsbury's Laws of England, 4th ed, vol 50
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis)
J McGhee QC, Snell's Equity (31st ed, 2005, Sweet & Maxwell)
P Nygh and P Butt, Butterworths Australian Legal Dictionary (1997, LexisNexis)
T G Feeney, The Canadian Law of Wills (3rd ed, 1987, Butterworths)
W J Williams, C H Sherrin, R F D Barlow and R A Wallington, Williams' Law Relating to Wills (6th ed, 1987, Butterworths)
Category: Principal judgment
Parties: Peter Arnott (first Plaintiff)
Charles Park White (second Plaintiff)
Andrew Mark Kiss (Defendant)
Representation: Counsel:
Mr D M Flaherty (Plaintiffs)
Mr D Neggo (Defendant)
Solicitors:
Arnotts Lawyers (Plaintiffs)
Jackson Lalic Solicitors (Defendant)

File Number(s): 2014/247217

JUDGMENT

The Claim

HIS HONOUR: In this proceeding, the Plaintiffs, Peter…

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 Arnott v Kiss

Details

AGLC: Arnott v Kiss [2014] NSWSC 1385
Case: [2014] NSWSC 1385
Decision Date: 14 October 2014

CaseChat Overview and Summary

Arnott v Kiss involved a dispute regarding the interpretation of a clause in a will that determined how the residue of the deceased's estate should be dealt with. The case was heard in the Supreme Court of Victoria. The primary issue was whether the clause in the will caused the residue to vest in interest in the named beneficiaries from the date of the deceased's death, or whether it constituted a gift subject to a contingency. Another issue was whether the clause constituted a "class gift" and, if so, whether the beneficiaries could compel the executor to distribute the residue of the estate under the rule in Saunders v Vautier.

The court considered whether the clause in the will was ambiguous and, if so, whether it was necessary to examine extrinsic evidence to determine the meaning of the clause. The court found that the clause was ambiguous and, as such, extrinsic evidence could be considered. The court also considered the principle of the rule in Saunders v Vautier, which allows beneficiaries to compel the executor to distribute a testamentary gift if the gift is to a class of beneficiaries and all members of that class are ascertained and capable of taking the gift at the time of the testator's death. The court found that the clause in the will did not constitute a class gift as it did not meet the criteria for a class gift under the rule in Saunders v Vautier.

The court held that the clause in the will was a gift subject to a contingency and did not cause the residue to vest in interest in the beneficiaries at the date of the deceased's death. The court also held that the beneficiaries could not compel the executor to distribute the residue of the estate under the rule in Saunders v Vautier as the clause did not constitute a class gift. The court found that the beneficiaries were entitled to receive the residue of the estate upon the death of the last surviving beneficiary. The court made orders accordingly.

Orders