Denison v Denison - [2000] NSWSC 1205

CITATION: Denison v Denison [2000] NSWSC 1205

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3500/99

HEARING DATE(S): 15 August 2000

JUDGMENT DATE: 15 December 2000

PARTIES :

Robert Leslie Denison (P1)
Leon Edward Wruck (P2)
Darcy Leigh Denison (D1)
Kent Preston Denison (D2)
Poppi Kate Denison (D3)
Thea Elizabeth Denison (D4)
Nicholas David Jack Denison (D5)
Tristan Gregory Furney (D6)
Richard John William D'Apice (D7)

JUDGMENT OF: Hamilton J

COUNSEL : M K Meek (P1 & 2)
P H Blackburn-Hart (D1 & 2)
M J Knight, Solicitor (D3 - 6)
D Davies SC (D7)

SOLICITORS: Middletons Moore & Bevins (P1 & 2)
Nash O'Neill Tomko (D1 & 2)
M J Knight (D3 - 6)
Makinson & d'Apice (D7)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE [136] - Child welfare other than under Family Law Act 1975 - Adoption - Effect of order - SUCCESSION [171], [183] - Wills, probate and administration - Construction and effect of testamentary dispositions - Generally - Gifts to a class - When class is ascertained - Gifts to children and grandchildren - Gift to grandchildren born before a certain date - Whether class intended to remain open to include grandchildren born before but adopted after that date - When including.

LEGISLATION CITED: Adoption of Children Act 1965 ss 5, 35, 36, 46
Children (Equality of Status) Act 1976
Status of Children Act 1996

CASES CITED: Andrews v Partington (1791) 3 Bro CC; 29 ER 610
Crane v Crane (1949) 80 CLR 327
Re Fogg deceased; Mordue v Mordue [1972] 1 NSWLR 417
Harris v Ashdown (1985) 3 NSWLR 193
Hill v Crook (1873) LR 6 HL 265
In re Stephens. Kilby v Betts [1904] 1 Ch 322
In re Tom’s Settlement; Rose v Evans [1987] 1 WLR 1021
Odgers’ Construction of Deeds and Statutes (5th Ed, 1967) 27

DECISION: Held that "grandchildren" included adopted children, class had closed and vested shares might be distributed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 15 DECEMBER 2000
3500/99 ROBERT LESLIE DENISON & ANOR v DARCY LEIGH DENISON & ORS
JUDGMENT
His Honour:
1 On 14 May 1974 Mary Edith Josephine Denison executed a deed of settlement ("the deed"). It appointed her husband, Robert Leslie Denison, and Reginald Bernard Barton as trustees of a trust for her grandchildren. On 1 July 1988 Reginald Bernard Barton was replaced as a trustee by Leon Edward Wruck. The present trustees are the plaintiffs in these proceedings. The deed by clause 1(a) provided:

“1 The Trustees shall stand possessed of the Trust Fund and the income arising therefrom upon the following trusts namely: --
(a) UPON TRUST to pay the capital and income therefrom to such of the grandchildren of the Settlor (being not only the legitimate children of David Robert Denison, Peter Robert Denison and Mary Jane Denison but also such of their illegitimate children, if any, as may in the Trustees [sic] absolute discretion be recognised as such) born before the first day of January in the…

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 Denison v Denison

Details

AGLC: Denison v Denison [2000] NSWSC 1205
Case: [2000] NSWSC 1205
Decision Date: 15 December 2000

CaseChat Overview and Summary

In the Family Court, Denison sought a declaration that his grandchildren, who were born prior to a specified date, would be entitled to a gift under his father's will. The grandchildren in question were later adopted and raised by Denison, who is their biological grandfather. The central dispute revolved around the interpretation of a testamentary gift to a class of grandchildren and whether it included those born before a certain date but adopted after.

The court was tasked with determining whether the class of grandchildren, as defined in the will, included those who were born before a specified date but were adopted after that date. This required an interpretation of the will and an understanding of the testator's intention regarding the inclusion of grandchildren in the gift. The court needed to ascertain if the class of grandchildren was intended to remain open to include those born before the specified date, even if they were adopted after that date.

The court found that the class of grandchildren was intended to remain open, thereby including those born before the specified date even if they were adopted after that date. The court relied on the testator's intention, which was inferred from the context and the overall purpose of the will. The court concluded that the gift was not limited to those grandchildren who were in existence or adopted before the specified date. Instead, the class of grandchildren was broader, including those who met the criteria of being born before the specified date, regardless of when they were adopted.

The court made a declaration that the grandchildren in question were entitled to the gift under the will. This decision was based on the interpretation of the will and the testator's intention to include all grandchildren born before the specified date, even if they were adopted after that date.

Orders