Fairbairn v Varvaressos & Ors - [2009] NSWSC 272

CITATION: Fairbairn v Varvaressos & Ors [2009] NSWSC 272

HEARING DATE(S): 8 April 2009

JUDGMENT DATE :
9 April 2009

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

DECISION: Further Amended Summons dismissed.

CATCHWORDS: WILLS – CONSTRUCTION – Devise to ‘A’ for life, remainder to such of her children as survive and attain twenty-one years but if no such children “then and in that event to” ‘B’ and ‘C’ – ‘A’ is eighty-three and without children – ‘B’ and ‘C’ die before termination of life estate – whether gift over of remainder to ‘B’ and ‘C’ fails and falls into residue or whether remainder vested in interest in ‘B’ and ‘C’ subject to defeasance – rule in Boraston’s Case. - HELD: Remainder vested in interest in ‘B’ and ‘C’ during their lives.

LEGISLATION CITED: Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

CATEGORY: Principal judgment

CASES CITED: - Astor, In re; Astor v Astor [1922] 1 Ch 364
- Boraston’s Case (1587) 3 Co Rep 16a [76 ER 664]
- Duffield v Duffield (1829) 1 Dow & Cl 268 (6 ER 525)
- Fell v Fell (1922) 31 CLR 268
- Hammersley v Newton (2005) 30 WAR 568
- Hickling v Fair [1899] AC 15
- Lainson v Lainson (1854) 5 De GM & G 754, at 776 per Turner LJ [43 ER at 1063]
- Langston v Langston (1834) 2 Cl & Fin 194, at 243 [6 ER 1128
- Phipps v Ackers (1842) 8 ER 539
- Tompkins v Simmons (1931) 44 CLR 546

TEXTS CITED: Jarman on Wills (8th Ed) p 1420

PARTIES: Joanna Marie Fairbairn (Plaintiff)
George and Yvette Varvaressos (First Defendants)
Kyriakoola Varvaressos (Second Defendant)

FILE NUMBER(S): SC 1198/95

COUNSEL: M.K. Meek, G.E. Doherty (Second Defendant)

SOLICITORS: Flynn Conn (Second Defendant)

1198/95 Fairbairn v Varvaressos & Ors

JUDGMENT

9 April, 2009
1 The Plaintiff is one of eight children of the late George Varvaressos, who died on 17April 1961, leaving a will dated 1 April 1960. Probate of the will was granted to two sons of the deceased, Stephen and Demetrius. 2 For the sake of convenient reference, and without intending disrespect, I will refer to members of the family by their first names. 3 When the deceased died he owned a property in Bellevue Hill, then valued at £11,000. His will gave a half share of the property to one of his daughters, Kyriakoola (“Kitty”), for life and then a gift over, upon terms in the will which give rise to these proceedings. 4 The Bellevue Hill property was sold by the executors in 1970 and, in accordance with the provisions of the will, half of the proceeds of sale were applied to the purchase of a home unit at Rose Bay in which Kitty resided. She continues to reside there. 5 The title to the home unit was originally in the names of the executors alone. In 1985, they transferred a one-third interest in the unit…

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.

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Details

Case: [2009] NSWSC 272
Decision Date: 9 April 2009

CaseChat Overview and Summary

In the case of Fairbairn v Varvaressos & Ors, the primary issue before the court was the interpretation of a will, specifically a devise of property to a named individual for life, with the remainder to be held in trust for the children of the individual, contingent upon them surviving and attaining the age of twenty-one. If no such children were to survive and attain the specified age, the property was to pass to two other named individuals, B and C. The central dispute arose when both B and C predeceased the individual in possession of the life estate, leading to a question regarding whether the gift over of the remainder would fail and fall into the residue of the estate or whether the remainder would vest in B and C's interest, subject to defeasance. This case was heard in the Supreme Court of Australia.

The legal issues presented before the court involved the construction of the will and the application of the rule in Boraston’s Case. The central point of contention was whether the remainder interest in B and C would become vested upon their lives, despite their predeceasing the individual holding the life estate, or if the remainder would be subject to defeasance, leading to a fall-back to the residue of the estate. The court had to determine the validity of the vesting of the remainder interest under these circumstances and whether the rule in Boraston's Case, which addresses the vesting of contingent interests, applied to the given situation.

The court held that the remainder interest in B and C vested in their interest during their lives. The reasoning was grounded in the application of the rule in Boraston’s Case, which stipulates that a contingent interest becomes vested if it is in existence at the time of the death of the person in possession of the life estate. The court determined that the remainder interest in B and C was sufficiently certain and vested in their interest, subject to defeasance, upon the death of the individual holding the life estate. This decision hinged on the interpretation of the will and the application of established legal principles concerning the vesting of contingent remainders. The court concluded that the remainder interest did not fail and did not fall into the residue of the estate, but instead vested in the interests of B and C, subject to the contingency of their survival and attainment of the specified age.

As a result of the court's decision, the remainder interest in B and C was upheld as valid and vested. The court's ruling ensured that the property would pass according to the terms of the will, despite the predecease of B and C, thereby avoiding a fall-back to the residue of the estate. The final orders of the court confirmed the vesting of the remainder interest in B and C, subject to defeasance, and provided clarity on the interpretation of the will in this particular context.

Orders