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Goodman v Bryant

Goodman v Bryant

Case [2025] NSWSC 1240 21 October 2025

Will Construction

Vesting of Interests

Presumption of Early Vesting

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Goodman v Bryant [2025] NSWSC 1240
Hearing dates: 16 October 2025
Date of orders: 21 October 2025
Decision date: 21 October 2025
Jurisdiction: Equity - Family Provision List
Before: Meek J
Decision:
Determination that the deceased’s sole grandchild (second defendant) has an entitlement in the deceased’s estate which is vested interest, though not yet in possession.

Catchwords:
SUCCESSION — Will construction — Deceased by her Will gives whole of her estate to be held on trust and divided equally amongst her grandchildren “as survive me and attain the age of [25]” — Clause providing estate given to 2 named charities “if no grandchild of mine survives me and attains a vested interest” — Dispute regarding when the interest vests — Determined that interest vested upon deceased’s death
SUCCESSION — Will construction — General principles discussed
SUCCESSION — Will construction — Vesting in interest and vesting in possession explained — Presumptions regarding vesting discussed — Presumption of early vesting has not been subject to desuetude
SOLICITORS — Practice — Record keeping—Encouragement for solicitors who destroy files after certain period of time to consider a practice of creating and preserving a digital archive of Will files
SOLICITORS — Practice — Will drafting —Encouragement for solicitors in drafting Wills to clarify testator’s intentions regarding when a gifted interest vests, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’
CONSTRUCTION — ‘Surplusage’ rule — Exceptions — Accepting prima facie all words should be given some meaning, sometimes the use of words which are not strictly necessary are included to emphasise intention
WORDS & PHRASES — desuetude

Legislation Cited:
Civil Procedure Act2005 (NSW)
NextSense Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Arnott v Kiss [2014] NSWSC 1385
Austin v Wells [2008] NSWSC 1266
Commissioner of Payroll Tax (NSW) v RG Elsegood & Co Pty Ltd [1983] 1 NSWLR 223
Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep: BC8601222)
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
Duffield v Duffield (1829) 1 Dow & Cl 268; 6 ER 525
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681
Estate of the late John Curry Doherty Hamilton [2025] NSWSC 932
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Hamersley v Newton (2005) WAR 568; [2005] WASC 221
Harris v Ashdown (1985) 3 NSWLR 193
Hickling v Fair [1899] AC 15
Hume v Perpetual Trustees Executors & Agency Co of Tasmania Ltd (1939) 62 CLR 242; [1939] HCA 10
In re Sinclair [1935] SASR 419
Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] 1 All ER 667
Leake v Robinson (1817) 2 Mer 363; 35 ER 979
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR…

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 Goodman v Bryant

Details

AGLC: Goodman v Bryant [2025] NSWSC 1240
Case: [2025] NSWSC 1240
Decision Date: 21 October 2025

CaseChat Overview and Summary

The case of Goodman v Bryant dealt with the interpretation of a will left by the deceased, who had specified that her entire estate should be held on trust and divided equally among her grandchildren, provided they survived her and attained the age of 25. In the event that no grandchild met these conditions, the estate was to be given to two named charities. The dispute arose over the precise moment when the grandchildren's interest in the estate was considered to have vested. Specifically, the question was whether the grandchildren's interest vested only upon their survival and reaching the age of 25, or whether it vested at the time of the deceased's death.

The court was required to determine the legal principles that applied to the vesting of interests in wills, particularly focusing on the difference between vesting in interest and vesting in possession. The court also considered the general presumptions regarding vesting, and whether the presumption of early vesting had fallen into disuse. Additionally, the court needed to decide whether certain clauses in the will, which seemed redundant, could be disregarded as surplusage, or whether they were included to emphasize the deceased's intentions.

The court held that the grandchildren's interest in the estate vested upon the deceased's death, not upon them surviving and reaching the age of 25. The court reasoned that the use of the phrase "as survive me and attain the age of [25]" was not intended to create a condition precedent to vesting, but rather to define the class of beneficiaries. The court rejected the argument that the presumption of early vesting had become obsolete, emphasizing that the presumption still applied unless clearly rebutted. The court also noted that the surplusage rule, which allows for the exclusion of unnecessary words, had exceptions and that words included to emphasize intention should not be disregarded. The court concluded that the grandchildren's interests vested at the moment of the deceased's death, and since none of them survived her and attained the age of 25, the estate passed to the named charities.

The court's final orders determined that the estate was to be distributed to the two named charities as specified in the will, as no grandchild had survived the deceased and attained the age of 25.

Orders