New South Wales
Court of Appeal
CITATION: Fairbairn v Varvaressos [2010] NSWCA 234
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 30 March 2010
JUDGMENT DATE:
15 September 2010JUDGMENT OF: Campbell JA at 1; Macfarlan JA at 129; Young JA at 130 DECISION: Appeal dismissed with costs, including any costs arising from the Amended Notice of Appeal. CATCHWORDS: WILLS & ESTATES – construction of will – clause determining the manner in which testator’s house and contents would be dealt with – whether clause operated to cause remainder consequent on child K’s death to vest in interest in two other children, D and I, from the date of testator’s death, subject to defeasance if K died leaving one child above the age of 21 – ascertaining basic scheme of will as aid to construction – drawing assistance from the presumption against intestacy – vesting of a gift – whether Boraston’s case was misapplied – preference for construing gift as vested – distinction between vested estates in land and contingent remainders – authorities discussed - REAL PROPERTY – vested and future contingent interests – whether limitation amounts to vested remainder or contingent remainder – discussion of concepts of “vested”, “estate in land” and “contingent remainder” – relevance of Luddington v Kime – contingent remainders as property rights LEGISLATION CITED: Conveyancing Act 1919
Probate and Administration Act 1898
Statute of Uses 1535
Statute of Wills 1540
Succession Act 2006
Wills Probate and Administration Act 1898CATEGORY: Principal judgment CASES CITED: Boraston’s Case (1587) 3 Co Rep 19a; 76 ER 668
Bruce v Charlton (1842) 13 Sim 65; 60 ER 26
Coorey v George (27 February 1986, unreported)
Duffield v Duffield (1829) 1 Dow & Clark 268; 6 ER 525
Fairbairn v Varvaressos (Palmer J, 13 May 2009, unreported)
Fairbairn v Varvaressos [2009] NSWSC 272
Hammersley v Newton [2005] WASC 221; [2005] 30 WAR 568
Hickling v Fair [1899] AC 15
Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited (1939) 62 CLR 242
In Re Firth; Loveridge v Firth [1914] 2 Ch 386
In Re Sanders Trusts (1866) 1 Eq 675
In Re Skinner Deceased [1965] VR 660
Kenna v Conolly (1938) 60 CLR 583
Luddington v Kime (1697) 1 Ld Raym 203; 91 ER 1031
National Provincial Bank Ltd v Ainsworth [1965] AC 1175
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Perpetual Trustee Company (Ltd) v Scheiler (1948) 49 SR (NSW) 169
Re Byrne Deceased [1967] VR 96
Re Ellenborough [1903] 1 Ch 697
Re Shannon [1968] NZLR 852
Re Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Smell v Dee (1707) 2 Salk 415; 91 ER 360
Tailby v Official Receiver (1888) 13 AC 523
Taylor v Graham (1878) 3 AC 1287
Tompkins v Simmons (1931) 44 CLR 546
Wagstaff v Crosby (1846) 2 Coll 746; 63 ER 943TEXTS CITED: Baker, An Introduction to English Legal…
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- AGLC
- Fairbairn v Varvaressos [2010] NSWCA 234
- Case
- [2010] NSWCA 234
- Decision Date
CaseChat Overview and Summary
The dispute in *Fairbairn v Varvaressos* concerned the construction of a will, specifically a clause dealing with the testator's house and its contents. The matter came before the Court of Appeal of New South Wales, with Campbell, Macfarlan and Young JJA presiding. The central question was whether a remainder interest, consequent upon the death of the testator's child, K, was intended to vest in two other children, D and I, from the date of the testator's death, subject to a condition subsequent.
The court was required to determine the proper construction of the relevant testamentary provision, particularly in light of the testator's intention regarding the disposition of the house and its contents upon K's death. This involved ascertaining whether the gift to D and I was a vested interest subject to defeasance, or a contingent remainder. The court also considered whether established legal principles regarding the vesting of gifts and the interpretation of wills, including the presumption against intestacy and the application of authorities such as *Boraston's Case* and *Luddington v Kime*, had been correctly applied.
In its reasoning, the court analysed the language of the will to discern the testator's basic scheme and intent. It applied the principle that courts generally prefer to construe gifts as vested rather than contingent, where possible, to avoid intestacy and to provide certainty. The court distinguished between vested estates in land and future contingent interests, considering the nature of the limitation created by the will. The court found that the limitation in question amounted to a vested remainder, rather than a contingent remainder, and that the authorities had been correctly applied.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents, including any costs associated with the Amended Notice of Appeal.
The court was required to determine the proper construction of the relevant testamentary provision, particularly in light of the testator's intention regarding the disposition of the house and its contents upon K's death. This involved ascertaining whether the gift to D and I was a vested interest subject to defeasance, or a contingent remainder. The court also considered whether established legal principles regarding the vesting of gifts and the interpretation of wills, including the presumption against intestacy and the application of authorities such as *Boraston's Case* and *Luddington v Kime*, had been correctly applied.
In its reasoning, the court analysed the language of the will to discern the testator's basic scheme and intent. It applied the principle that courts generally prefer to construe gifts as vested rather than contingent, where possible, to avoid intestacy and to provide certainty. The court distinguished between vested estates in land and future contingent interests, considering the nature of the limitation created by the will. The court found that the limitation in question amounted to a vested remainder, rather than a contingent remainder, and that the authorities had been correctly applied.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents, including any costs associated with the Amended Notice of Appeal.
Orders
Orders of the court
Appeal dismissed with costs, including any costs arising from the Amended Notice of Appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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