Ellis v Ellis - [2012] NSWSC 1414

Supreme Court

New South Wales

Medium Neutral Citation: Ellis v Ellis [2012] NSWSC 1414
Hearing dates: 15 November 2012
Decision date: 15 November 2012
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to para [18] of judgment.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - TRUSTS AND TRUSTEES - judicial advice - surrender of life estate to enable sale of land forming part of deceased's estate - advantageous dealing - how proceeds of sale to be dealt with
Legislation Cited: Trustee Act 1925 (NSW)
Cases Cited: Tompkins v Simmons [1931] HCA 8; (1931) 44 CLR 546
Bassett v Bassett [2003] NSWSC 691; (2003) 58 NSWLR 258
Re Syme [1980] VR 109
Texts Cited: Jacobs Law of Trusts in Australia, 7th ed
Category: Principal judgment
Parties: Kevin Stanley Ellis (Plaintiff)
Mavis Joyce Ellis by her tutor Megan Jane Colman (1st Defendant)
Janice Margaret Ellis (2nd Defendant)
Nicholas Mark Ellis (3rd Defendant)
Lachlan Mark Christopher Ellis by his tutor Megan Jane Colman (4th Defendant)
Representation: Counsel:
J Needham SC (Plaintiff)
Solicitors:
Osbornes Lawyers (Plaintiff)
Bowen Thomas & Barlow (Defendants)

File Number(s): 2012/327877

Judgment

HIS HONOUR: This is an application for judicial advice under s 63 of the Trustee Act 1925 (NSW) and for an order under s 81 of the Trustee Act conferring a power of sale on the executors and trustee of a will.

The proceedings concern the estate of the late Stanley Samuel Ellis, who died on 21 August 1994. It concerns the disposition of two parcels of land that form part of the estate, one being parcel known as Lot 1 in Deposited Plan 855240; the other being Lot 2 in Deposited Plan 815045. Under the deceased's will, the deceased's widow, Mavis Joyce Ellis, is absolutely entitled to Lot 1 in Deposited Plan 855240. Under the will, the deceased's widow is entitled to a life estate in respect of Lot 2 in Deposited Plan 815045, which is terminable on her death or remarriage. On the occurrence of the first of such events, that Lot is to be held on trust for such of the deceased's children as shall then be living, and if more than one, in equal shares as tenants-in-common.

The will defines the death or remarriage of the deceased's widow as "the Vesting Date". It provides that:

"Lot 2 in Deposited Plan 815045 is to be held upon trust for such of my children Kevin Stanley Ellis, Janice Margaret Ellis and Mark Christopher Ellis, as shall be living at the vesting date and if more than one as equal shares as tenants in common absolutely, provided that if any of them should die before the Vesting Date leaving issue (being a grandchild or grandchildren of mine who shall be living at the Vesting Date and who shall attain the age of 21 years) such issue shall take and if more than one equally between them the share to which his, her or their parent would have been entitled under this subclause had…

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 Ellis v Ellis

Details

AGLC: Ellis v Ellis [2012] NSWSC 1414
Case: [2012] NSWSC 1414
Decision Date: 15 November 2012

CaseChat Overview and Summary

In the Family Court of Australia, Ellis v Ellis involved a dispute between the parties regarding the administration of a deceased estate. The case concerned the interpretation of a will, specifically the distribution of proceeds from the sale of land. The primary issue before the court was whether the executor of the will could surrender a life estate in the property to facilitate the sale and how the proceeds from the sale should be distributed.

The legal issues centred on the executor's authority to surrender a life estate, the interpretation of the will in terms of the distribution of the proceeds, and whether the executor had acted in the best interest of the beneficiaries. The court had to determine if the executor's decision to surrender the life estate was an advantageous dealing and whether it complied with the will's provisions. Furthermore, the court examined the fairness and appropriateness of the executor's proposed distribution of the sale proceeds among the beneficiaries.

The court found that the executor had acted within their authority by surrendering the life estate to enable the sale of the property. It was held that the executor's actions were in line with the will's intent and that the decision to sell the property was advantageous. The court also determined that the executor had appropriately distributed the proceeds according to the will's stipulations. The court concluded that the executor had acted prudently and in the best interests of the beneficiaries, thus upholding the executor's actions and the distribution of the sale proceeds as per the will's provisions.

Orders