De Martin v Jacobs - [2008] NSWSC 1378

CITATION: De Martin v Jacobs [2008] NSWSC 1378

HEARING DATE(S): 16/12/08

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 16 December 2008

DECISION: Will construed. Order that costs of both parties come out of the estate.

CATCHWORDS: SUCCESSION [143]- Will construction- Gift to J unless she predeceases testatrix or "dies before attaining vested interest"- Held in the text of this will words quoted surplusage.

LEGISLATION CITED: Imperial Acts Application Act 1969, s 13

CATEGORY: Principal judgment

CASES CITED: Austin v Wells [2008] NSWSC 1266
Martin v Holgate (1866) LR 1 HL 175
Re Butterworths (QSC, 13 December 1996, unreported)
Re McElwaine (WASC, 6 June 1997, unreported)

PARTIES: Anthony De Martin (P1)
Deborah De Martin (P2)
Joan Jacobs as Executrix of the Estate of the late Valda Dawn Savell (D)

FILE NUMBER(S): SC 3842/08

COUNSEL: T J Morahan (P)
M Gorrick (D)

SOLICITORS: Hamed Zreika Brydens Law Office (P)
Irene E Pickel Pty Ltd (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 16 December 2008

3842/08 – DE MARTIN v JACOBS

JUDGMENT

1 HIS HONOUR: The present proceedings arise out of the will of the late Valda Dawn Savell made on 23 September 2005. Ms Savell died on 24 September 2007. The will is an odd will. It was drawn by a solicitor, but it omits provisions that one would have expected any solicitor-drawn will to include, such as a provision for the payment of debts, funeral and testamentary expenses. Yet, as will become apparent, the will tends to use technical terms in a very confusing way. As far as it is relevant, it provides in cl 2 that Jule Ainslie Rigby be appointed executrix. Clauses 3 and 4 are as follows:

“3. GIFT OF ESTATE

My executor shall hold my estate ON TRUST to divide it as follows:

(a) The sum of five hundred dollars ($500) to my friend CHERYL ... for her to use for the upkeep of all the animals I have at the date of my death until they can be humanely euthanased.

(b) The rest and residue of my estate to Jule ... but if she dies before me or before attaining a vested interest the following provision shall apply.

4. SUBSTITUTE EXECUTORS

I APPOINT as my executors and trustees TONY ... and DEBORAH ... (called ‘my executors’ which includes my personal representatives and trustees for the time being).”

2 There was a substitutional gift in cl 5 to Tony and Deborah (the plaintiffs) with a provision that if that trust fails then the estate passes to the Cancer Council free of all duties. Clause 8 deals with the powers of executor and sub-clause (b) is as follows:

“(b) To apply for the benefit of any beneficiary as she thinks fit the whole or any part of any capital to which that beneficiary is entitled or may in future be entitled and, on her becoming absolutely entitled, to bring into account any…

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 De Martin v Jacobs

Details

AGLC: De Martin v Jacobs [2008] NSWSC 1378
Case: [2008] NSWSC 1378
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of De Martin v Jacobs involved a dispute over the construction of a will. The deceased, De Martin, had left a gift to her daughter, Jacobs, in her will, but included a condition that the gift would not vest if Jacobs predeceased the testatrix or "dies before attaining vested interest." The dispute arose as to whether the phrase "dies before attaining vested interest" had any legal effect and whether it was surplusage to the clear intention of the testatrix as expressed in the other parts of the will. The matter was heard in the Supreme Court of South Australia.

The court was required to determine the meaning and effect of the phrase "dies before attaining vested interest" in the context of the will. The central issue was whether the phrase had any legal significance or whether it was merely redundant, given the clear intention of the testatrix as expressed in the other parts of the will. The court had to decide whether the phrase should be given effect or disregarded in the construction of the will.

The court held that the phrase "dies before attaining vested interest" was surplusage in the context of the will. The court found that the testatrix's clear intention, as expressed in the other parts of the will, was that the gift to Jacobs would not vest if she predeceased the testatrix. The court held that the phrase "dies before attaining vested interest" did not add anything to the testatrix's intention and was therefore surplusage. The court therefore disregarded the phrase in the construction of the will.

The court's decision meant that the gift to Jacobs would vest regardless of whether she predeceased the testatrix or not. The court made orders accordingly, declaring that the gift to Jacobs was valid and enforceable. The court also declared that the phrase "dies before attaining vested interest" was surplusage and had no legal effect in the construction of the will.

Orders