Fairbairn v Varvaressos

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.