Kinloch v Manzione

Case [2022] ACTSC 76


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kinloch v Manzione

Citation:

[2022] ACTSC 76

Hearing Date:

31 March 2022

DecisionDate:

19 April 2022

Before:

Kennett J

Decision:

See [48]

Catchwords:

SUCCESSION – Will construction – where residuary clause in will provides for a gift to issue unless the child “has already died, dies before me or dies before attaining a vested interest” – where child died more than 30 days after the testator died but before probate was granted – meaning of “dies before attaining a vested interest”

Legislation Cited:

Succession Act 2006 (NSW) s 35

Wills Act 2006 (ACT) ss 12B, 31, 31B, 31C

Cases Cited:

Application by Elizabeth Marie Robinson [2015] NSWSC 1387

Arnott v Kiss [2014] NSWSC 1385
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
De Martin v Jacobs [2008] NSWSC 1378
Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80
Fairbairn v Varvaressos [2010] NSWCA 234; 78 NSWLR 577
Fell v Fell (1922) 31 CLR 268
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Informax International Pty Ltd v Clarius Group Ltd [2011] FCA 183; 192 FCR 210
King v Perpetual Trustee Co Ltd (1955) 94 CLR 70
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411
Marshall v Tasmanian Perpetual Trustees Ltd [2015] TASFC 2; 26 Tas R 120
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Pohlner v Pfeiffer (1964) 112 CLR 52
Public Trustee v Loney [2009] SASC 17
Re Bruce; Bruce v Bruce [1949] Tas SR 79
Re Hewitt [1945] SASR 102
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53
Serwin v Dolso [2020] NSWSC 370
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437

Woodgate v Tanks [2013] QSC 204; 1 Qd R 481

Texts Cited:

Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020)

Parties:

Elizabeth Vasantha Kinloch ( First Plaintiff)

Eleanor Ai-Lin Kinloch ( Second Plaintiff)

Lara Leigh Manzione ( Defendant)

Representation:

Counsel

M Pringle ( Plaintiffs)

R Arthur ( Defendant)

Solicitors

BAL Lawyers ( Plaintiffs)

Elringtons Lawyers ( Defendant)

File Number:

SC 485 of 2021

KENNETT J :

Introduction

  1. Lucy Maniam Kinloch (the testator) died on 19 August 2019. This case concerns the interpretation of a provision of her will, made on 18 February 2015 (the will).

  1. The testator had three children: Robert (born in 1967); Elizabeth (born in 1968); and Eleanor (born in 1972). In these reasons, they will be referred to by their Christian names. At the time the testator made her will (and also at the time of her death), Robert lived in Maryland, USA, and had two young children (born in 2008 and 2009).…

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AGLC
Kinloch v Manzione [2022] ACTSC 76
Case
[2022] ACTSC 76
Decision Date

CaseChat Overview and Summary

This case involved a dispute over the interpretation of a will made by Lucy Maniam Kinloch, who passed away on 19 August 2019. The will was contested between the two surviving daughters of Kinloch, Elizabeth and Eleanor, who were named as executors of the will, and the executor of the will of Robert, the son of Kinloch who died on 24 November 2019, more than 30 days after Kinloch's death but before probate was granted. The issue that arose was whether Robert had attained a "vested interest" in the residue of his mother's estate before his death, and if not, whether his share of the residue would be held on trust for his two children until they attained their majority.

The court considered the language of the will, specifically clause 3.2(c), which provided for a gift over of part of the residue of the estate to the children of any beneficiary who died before attaining a vested interest. The court held that the phrase "dies before attaining a vested interest" meant "dies before the estate is fully administered and available to be distributed". The court also considered three decisions of the Supreme Court of New South Wales, which supported the construction of the will advocated for by the plaintiffs. Finally, the court considered the provisions of the Wills Act 2006 (ACT), and held that the construction of the will which the court adopted displaced the presumption under s 31B(1) of the Wills Act.

The court made declarations that, on the proper construction of the will, Robert died before attaining a vested interest in the residue of his mother's estate, and that upon attaining their majority, Robert's two children are entitled to receive one third of the net residue of the estate as tenants in common in equal shares. The court did not consider it necessary to make a formal order requiring the plaintiffs to hold one third of the net residue of the estate on trust for Robert's children, as the declarations made were sufficient to resolve the issues in controversy between the parties.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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