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”
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
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).
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).…
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
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.