Legal Research
Cases
Garbett v Bear

Garbett v Bear

Case [2015] NSWSC 1524 1 October 2015

Construction and effect of testamentary dispositions

Reconciliation of inconsistent provisions

Testator’s intention

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ornella Garbett v Rae Dawn Bear [2015] NSWSC 1524
Hearing dates: 7 September 2015
Date of orders: 01 October 2015
Decision date: 01 October 2015
Jurisdiction: Equity
Before: Rein J
Decision:
See [55] and [56]

Catchwords: EQUITY - Succession - Construction and effect of testamentary dispositions - Whether on the true construction of the will the executor is directed to subdivide the property - Where the property cannot be subdivided in accordance with the testator’s direction - Whether inconsistent provisions can be reconciled where subdivision is not possible - Testator’s intention for the first defendant to remain residing in a dwelling - Whether property is to be sold
Legislation Cited: Perpetuities Act 1984 (NSW)
Succession Act 2006 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Abbott v Middleton (1858) 7 HL Cas 68
Allgood v Blake (1872-73) LR 8 Exch 160
Askew v Askew [2015] NSWSC 192
Boyes v Cook (1880) 14 Ch D 53
Charter v Charter (1874) LR 7 HL 364
Doggett v Lenehan [1926] St R Qd 84
Fell v Fell (1922) 31 CLR 268
Hancock v Watson [1902] AC 14
Hatzantonis v Lawrence [2003] NSWSC 914
Hoppe v McDavitt [1961] VR 381
In re Bailey; Barrett v Hyder [1951] Ch 407
In re Isaac; Harrison v Isaac [1905] 1 Ch 427, 43
Ireland as Executor of Estate of the late Gordon v Retallack [2011] NSWSC 846
Lassence v Tierney [1843-60] All ER Rep 47
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Muir v Winn [2009] NSWSC 857
Pagano v Ruello [2001] NSWSC 63
Re Bowcock (decd); Box v Bowcock [1968] 2 NSWR 697
Re Leigh's Will Trusts [1970] Ch 277
Re O'Callaghan (decd) [1972] VR 248
Re Padbury; Home of Peace for the Dying & Incurable v Solicitor-General [1908] HCA 72; (1908) 7 CLR 680
Re Sandford [1990] 1 Ch 939
Re Spencer (1886) 54 LT 59
Scale v Rawlins [1892] AC 342
Sidle v Queensland Trustees Ltd [1915] HCA 48; (1915) 20 CLR 557
Towns v Wentworth (1858) 14 ER 794
Van Kerkvoorde v Moroney [1917] HCA 47; (1917) 23 CLR 426
Warton v Yeo [2015] NSWCA 115
Watson v Ralph [1982] HCA 35; (1982) 148 CLR 646
Texts Cited: ‘Construction of Wills in Australia’ (2007, LexisNexis Butterworths)
‘Williams on Wills’ (2008, 9th ed, LexisNexis Butterworths)
Category: Principal judgment
Parties: Ornella Garbett (Plaintiff)
Rae Dawn Bear (First Defendant)
Rodney Barnett Bear (Second Defendant)
Kerryn Stacey Bear (Third Defendant)
Roxanna Lenice Bear (Fourth Defendant)
Marilyn Gay Watts (Fifth Defendant)
Christine June Haines (Sixth Defendant)
Cheryl Jon Fowler (Seventh Defendant)
Representation:
Counsel:
S. Chapple (Plaintiff)
G. Waugh (First Defendant)
A. Rogers (Second Defendant)
M. Gorrick (Third and Fourth Defendants)
Solicitors:
Attwood Marshall Lawyers (Plaintiff)
HQF Lawyers (First Defendant)
Armstrong Legal (Second Defendant)
DDCS Lawyers (Third and Fourth Defendants)
Frankham Family Lawyers (Fifth and Seventh Defendant)
GHS Legal (Sixth Defendant)

File Number(s): 2014/372471
Publication restriction: nil

JUDGMENT

These proceedings concern the…

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.

Continue reading Garbett v Bear

Details

AGLC: Ornella Garbett v Rae Dawn Bear [2015] NSWSC 1524
Case: [2015] NSWSC 1524
Decision Date: 01 October 2015

CaseChat Overview and Summary

The plaintiffs, Garbett and his wife, commenced proceedings against Bear, the executor of the estate of Garbett's mother, who passed away. The plaintiffs sought a declaration that the will of Garbett's mother should be interpreted to require the executor to subdivide the property so that Garbett could occupy a portion of it, or alternatively, that the property should be sold and the proceeds distributed to Garbett and his wife. The case was heard in the Supreme Court of Queensland.

The central legal issue was whether the will directed the executor to subdivide the property, and if that was not possible, whether the provisions of the will could be reconciled to determine the testator's intention. Specifically, the court had to consider whether the property should be sold or if there was an intention for Garbett to remain residing in a dwelling on the property. The will contained provisions that were potentially inconsistent, and the court needed to determine the true intention of the testator.

The court found that the will did not explicitly direct the executor to subdivide the property, and it was not possible to do so in a manner consistent with the testator's directions. The court held that the testator's intention was for Garbett to remain residing in a dwelling on the property, and this intention should be given effect. The court also found that there was no intention for the property to be sold. Consequently, the court ordered that Garbett should remain residing in a dwelling on the property, and there should be no sale of the property.

The final orders of the court were that the executor was directed to allow Garbett to continue residing in a dwelling on the property as per the testator's intention. The court did not order a sale of the property, and the proceedings were dismissed with no order as to costs.

Orders