Feltham as Executor of Estate Late J W Venn

[2007] NSWSC 1198

CITATION:	Feltham as Executor of Estate Late J W Venn [2007] NSWSC 1198
HEARING DATE(S):	22 October 2007
JUDGMENT DATE :	22 October 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Court advises that testamentary gift lapses in respect of the three nieces and nephews who survived the testator’s sister but predeceased the testator.
CATCHWORDS:	SUCCESSION [251] – Wills, probate and administration – Construction and effect of testamentary dispositions – Legacies and devises – Lapse and interest undisposed of – Whether lapse of gift – Gift to such nieces and nephews of my mother as my sister shall appoint – Sister predeceases testator without having made appointment – Five nieces and nephews survive sister but three of them predecease testator.
LEGISLATION CITED:	G L Certoma, Law of Succession in New South Wales, (3rd ed, 1997) 192
PARTIES:	Kenneth Brian Feltham as Executor of the Estate of the Late John Webber Venn (P)
FILE NUMBER(S):	SC 2003/06
COUNSEL:	C M Harris SC (P)
SOLICITORS:	Russell Kelly & Associates (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 22 OCTOBER 2007

2003/06 KENNETH BRIAN FELTHAM as Executor of the ESTATE OF THE LATE JOHN WEBBER VENN

JUDGMENT

1 HIS HONOUR: In these proceedings the executor has sought judicial advice concerning the incidence of a gift in the will of John Webber Venn, who died on 12 December 2004. Probate of the will was granted to the plaintiff on 24 November 2005. The relevant gift contained in clause 8(c) of the will was of three tenths of the net proceeds of the testator’s estate to “such of the nieces and nephews of my mother and in such shares as my sister Doreen Kathleen Feltham shall appoint”. Doreen Kathleen Feltham indeed predeceased the testator, having died on 16 March 2001. Search has not located any appointment made by her for the purposes of clause 8(c) of the will prior to her death.

2 As to whether or not her death before that of the testator destroyed the effect of clause 8(c) or what its effect should be in the events which happened was the subject of judicial advice given in these proceedings by Windeyer J on 5 June 2006. The advice given by his Honour was in the following terms:

“That on the assumption the donee of the power made no appointment under her will and that proper searches have been made for any appointment by deed, then the gift under Clause 8(c) of the will of the deceased should be divided equally among the nieces and nephews of the deceased but reserving if necessary the decision as to whether the class closed on death of the testator or on death of the donee of the power.”

His Honour formally made an order for the reservation of further consideration.

3 Further investigations that have since been made have revealed that further advice is indeed necessary as to whether or not the clause closed on the death of the testator or on the death of the donee of the power. Now that the identities of the nieces and nephews of the mother and the dates of their respective deaths have been fully ascertained, it appears that five nieces and nephews were surviving at the time of the appointor’s death, but of these three died after the death of the appointor and before the death of the testator. Those three were Muriel Eileen Walker, died 27 March 2003; Joan Muriel Veck, died 2 April 2003; and Lilly Edna Webber, died 30 January 2004. The two nieces and nephews living at the appointor’s death, who also survived the testator, were Verena May Channing and Violet Florence Bunce. Of these two, Verena May Channing died after the testator on 18 December 2006 and Violet Florence Bunce is still living.

4 Windeyer J earlier acted on an advice of Mr Harris, of Senior Counsel for the plaintiff. I have before me a further advice of Mr Harris, dealing with the questions remaining to be dealt with, which is dated 23 August 2007. In that advice Mr Harris opines that a beneficiary under a will has no interest until the testator has died and cites from Professor Certoma’s Law of Succession in New South Wales (3rd ed, 1997) 192:

“A gift fails by lapse where the beneficiary predeceases the testator. This is a consequence of the ambulatory nature of wills; in other words, because a will does not have any effect until the testator’s death it cannot confer a benefit on persons who have previously died.”

Mr Harris further opines that, on the other hand, in the absence of any inconsistent provision in a will a gift vests on the death of a testator so that, if the beneficiary subsequently dies, the gift is distributed to that beneficiary’s estate so as to form part of the assets of that estate.

5 In my view, the opinions that Mr Harris has expressed in that advice are correct. The correct view as to the question reserved by Windeyer J is that the class did not close on the death of the appointor and did not close until the death of the testator, at which time the class contained only two members. The gift made in clause 8(c) of the will should therefore be distributed equally between Violet Florence Bunce and the estate of Verena May Channing deceased. The Court so advises.

6 I order that the further costs of the plaintiff of the proceedings be paid out of the estate on the indemnity basis.

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