Hay v Aynsley - [2013] NSWSC 1689

Supreme Court

New South Wales

Medium Neutral Citation: Hay v Aynsley [2013] NSWSC 1689
Hearing dates: 12 September and 15 November 2013
Decision date: 15 November 2013
Jurisdiction: Equity Division - Probate List
Before: Lindsay J
Decision:
(1) Declare that, in the events which have happened, the gift by the deceased of the property at 64 Bayview Street, Soldiers Point (being Lot 2 in DP 215680) to the late David Ronald Brook in clause 8 of her Will dated 31 May 2006, has adeemed by virtue of the sale of the property on or about 19 January 2011, and any remaining proceeds of sale, together with any interest accrued thereon, form part of the residuary estate of the deceased to be divided as provided for in clause 10 of the Will.
(2) Order that the costs of all parties be paid out of the estate of the deceased.
(3) Order that the costs of the plaintiff and the first and second defendants be assessed on the indemnity basis.
(4) Order that the costs of the third, fourth and fifth defendants be assessed on the ordinary basis, not limited to the costs of a submitting appearance.

Catchwords: Wills, probate and administration - Construction of Will - Ademption of a gift by sale under an enduring power of attorney - Intended beneficiary predeceased deceased - Succession Act 2006 NSW, s 41 conferred standing on issue of intended beneficiary to contend that the Powers of Attorney Act 2003 NSW, s 22 applied to save gift from complete failure - Section 22 not applicable on proper construction of the Powers of Attorney Act 2003, s 6 - Ademption under general law.
Legislation Cited: Conveyancing Act 1919 NSW s 163B
NSW Trustee and Guardian Act 2009 NSW
Powers of Attorney Act 2003 NSW, ss 6(1), 6(2) and 6(5) 6(5), s 36
Succession Act 2006 NSW, s 41
Wills Probate and Administration Act 1898 NSW
Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39 at [151] and [175]-[176]
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Louise Anne Hay
First Defendant: David Jesse Aynsley
Second Defendant: Peter John Brook
Third Defendant: Timothy John Brook
Fourth Defendant: Lisa Marie Brook
Fifth Defendant: Gregory David Brook
Representation: Counsel:
Plaintiff: RD Wilson SC
First & Second Defendants: J Heazlewood
Third, Fourth & Fifth Defendants: K Conte-Mills (12 September 2013 only)
Solicitors:
Plaintiff: Coleman & Greig Lawyers
First & Second Defendants: Barber & Massey
Third, Fourth & Fifth Defendants: Lewarne & Goldsmith

File Number(s): 2013/00128627

Judgment

INTRODUCTION

Before the Court is a summons for construction of the will dated 31 May 2006 ("the Will") of Patricia Muriel Brook ("the deceased"), who died on 21 March 2012.

Probate of the Will was granted by this Court to the plaintiff, Louise Anne Hay, and the first defendant, David Jesse Aynsley, on 17 September 2012.

FAMILY CONNECTIONS, AND BENEFICIARIES, OF THE DECEASED

The deceased had been married to John Arthur Brook. He predeceased her by about three years. He died on…

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.

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Details

Case: [2013] NSWSC 1689
Decision Date: 15 November 2013

CaseChat Overview and Summary

The case of Hay v Aynsley involved a dispute over the interpretation of a will and the effect of an enduring power of attorney on the bequest of a property. The parties were Hay, the executor of the estate of the deceased, and Aynsley, the intended beneficiary of a specific property gift under the deceased's will. The central issue was whether a gift made under an enduring power of attorney, which was executed after the death of the intended beneficiary, could still be validly transferred to the estate. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the Succession Act 2006 NSW, section 41, allowed the intended beneficiary to contest the application of the Powers of Attorney Act 2003 NSW, section 22, which would otherwise have rendered the gift ineffective. The court had to determine if section 22 of the Powers of Attorney Act was applicable and, if not, whether the gift was subject to ademption under general law principles. The court's analysis involved a detailed examination of the statutory provisions and their interaction, as well as the common law principles of ademption.

In delivering the judgment, the court found that section 22 of the Powers of Attorney Act was not applicable as it was not intended to save gifts from complete failure when the intended beneficiary had predeceased. The court held that the gift was subject to ademption under the general law, and therefore, the intended beneficiary had no standing to challenge the executor's actions. Consequently, the bequest did not pass to the estate and was deemed to have failed entirely. The court's reasoning was grounded in a thorough interpretation of the statutory language and the established legal principles regarding ademption.

The final orders of the court confirmed that the intended beneficiary had no right to contest the executor's decision regarding the bequest. The court also ordered that the property in question should be treated as having adeemed, and no part of it should be included in the deceased's estate. This decision underscored the importance of the timing of the execution of an enduring power of attorney in relation to the intended beneficiary's status and the statutory provisions designed to address such scenarios.

Orders