Forsyth

[2012] NSWSC 141

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Forsyth [2012] NSWSC 141
Hearing dates:	27/02/12
Decision date:	27 February 2012
Jurisdiction:	Equity Division
Before:	Associate Justice Macready
Decision:	I declare that the deceased's estate passes on intestacy to the deceased's half siblings in respect of the gift that was to pass to the named individual, David Jago.
Category:	Principal judgment
Parties:	Application of Keith William Forsyth
Representation:	M Lawson for applicant Harris Freidman for applicant
File Number(s):	2011/373401

JUDGMENT

1. HIS HONOUR: This is a hearing of an amended summons filed on 19 December 2011. The matter is a construction proceeding which has been brought by the executor of the deceased.

1. The Court, on 5 December 2011, gave directions that notice should be given to all persons affected by the construction points sought to be argued and I am satisfied that they have been served.

1. The matter arises out of the estate of the late Richard John Basto, the plaintiff's executor. The deceased made a will on the 14 January 1998 in these terms:

"This is my last will and testimony made this fourteenth day of January 1998 and is intended to replace all previous Wills and Testimonies.

It is my desire that Keith William Forsythe or his nominee be my executor.

The persons who have knowledge of my estate or who are holding part in trust for me are: Keith W Forsythe, Alexander Lee, Richard Bobb, hereafter referred to.

I leave my estate to be distributed as follows:

Should I predecease my mother, she should be properly assisted to continue living comfortably in her home, which may require additions to accommodate a 'live in carer' or assistant, firstly from any income from my estate and if insufficient from the capital.

My daughter and her mother Ruth Atkins, should be found and if in need immediately assisted at the discretion of my executor.

Any surplus income should be accrued and at the end of five years or at such other time decided by my executor, divided as follows:

The children of my cousin Adolfo John Basto architect of London/Lisbon and his two sisters Marie Olivia Lee of Southhampton England, and Alisia Haslam of Vancouver Canada should benefit to the extent of two fifths of my estate.

The children of Anthony Basto known as Tony of Glenhaven should benefit to the extent of one fifth of my estate.

My daughter should receive one fifth of my estate.

My good friends Keith Forsythe, John Deppe and David Jago should share equally in one fifth of my estate after a payment from this one fifth of ten thousand dollars (Australian $10,000) to Alex Lee, Accountant, of 6/141 Elizabeth St. Sydney."

1. He also made a codicil on 2 February 1998 in these terms:

"My cousin Anthony Basto has borrowed two hundred and twenty thousand dollars (Australian $220,000) from me.

In the event that this has not been repaid either to me or my accountant Richard Bobb, of 155 Castlereagh St. Sydney, then his children shall be deemed to have received their full entitlement under my Will above mentioned."

1. Probate was granted by the Court on 28 April 2011.

1. The first question that needs to be dealt with is the question arising out of what is called cl 6 in the deceased's will and a declaration is sought that the powers given to the executor not only apply to give assistance but also to determine to refuse assistance.

1. I am satisfied that is the correct construction of the will and, accordingly, I declare that the plaintiff is entitled to exercise his discretion not to make any distribution of the estate to Ruth Atkins nor make any further distribution to Ann Marie Rahilly in excess of the distribution to her of one fifth of the residue.

1. The next matter arises out of cl 7 of the will and its proper construction has to be found having regard to the purposes which are set out in paras 5 and 6 of the will. Those paras obviously anticipate that it might take some time for the deceased, firstly, to locate and then be satisfied about monies that might have to be provided.

1. It seems to me that the purpose of the five years was to allow the executor to take some time to do that without being forced by the beneficiaries to distribute. Having regard to the fact that the executor does not need the extra five years, I think it is appropriate to make a declaration.

1. Accordingly, I declare that the plaintiff is at liberty to administer and distribute the assets of the estate of the late Richard John Basto and not be bound to wait five years for distribution.

1. The next matter arises out of the terms of cl 8 and the possibility that it might be thought that in respect of his cousin's sisters, Marie Olivia Lee and Alisia Haslam, that they are entitled to a one third share each.

1. I do not think that is the correct construction, given the natural reading of the paragraph.

1. Accordingly, I declare that two fifths of the deceased's estate to "the children of my cousin Adolfo John Basto architect of London/Lisbon and his two sisters Marie Olivia Lee of Southhampton England and Alisia Haslam of Vancouver Canada" is a gift of two fifths of the estate divided equally between the children of the three named individuals in equal shares.

1. The next matter arises out of cl 9 of the will, which is fairly straight forward, and I make a declaration that the gift of one fifth of the deceased's estate to "the children of Anthony Basto known as Tony of Glenhaven" is a gift of one fifth of the estate divided equally between the children of the named Anthony Basto.

1. The next matter concerns the gift in cl 9 of the deceased's will and particularly the terms of the codicil which requires repayment of the $220,000 before the date of death so that the children can take the benefit of that gift. There is a statutory declaration made by Anthony Basto showing it has been repaid in full and attaching a copy of the short minutes of order which apparently were filed in the District Court which, on their face, would be sufficient evidence for the executor to accept provided, of course, orders were made in accordance with those terms.

1. Accordingly, I make a declaration that in the event that the terms of the short minutes of order which are attached to the statutory declaration of Anthony Basto, exhibit F in the proceedings, have resulted in an order being made by the Court in accordance with those short minutes of order, then I declare that the plaintiff is entitled to rely upon the assurance of Anthony Basto and the statutory declaration from him (without further supporting evidence) that the $220,000 loan monies referred to in the codicil have been repaid to either the deceased or Mr Richard Bobb in administering the estate.

1. The next matter arises out of cl 11 of the will. The evidence satisfies me that David Jago pre-deceased the testator.

1. In this circumstance, there is a partial intestacy and I declare that the deceased's estate passes on intestacy to the deceased's half siblings in respect of the gift that was to pass to the named individual, David Jago.

1. So far as costs are concerned, I am satisfied that the application was appropriate and I think they should be paid out of the estate of the deceased.

1. Accordingly, I order that the plaintiff's costs on an indemnity basis be paid out of the estate of the deceased.

1. I also note for the purposes of the record that today an order was made referring the whole of the proceedings to me for hearing.

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Amendments

05 March 2012 - removed duplicate paragraphs

Amended paragraphs: 21 - 23

Decision last updated: 05 March 2012