Longmore v Longmore - [2018] NSWSC 90

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Longmore v Longmore & Ors; The Estate of Jean Longmore [2018] NSWSC 90
Hearing dates: 27 October 2017
Date of orders: 01 March 2018
Decision date: 01 March 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
The words in the testatrix’s will, “between such of my children as survive me as tenants-in-common”, express an intention to negative the operation of WPA Act, s 29. The costs of the plaintiffs may be paid out of the estate on the indemnity basis. The costs of the defendants may be paid out of the estate on the ordinary basis.

Catchwords: SUCCESSION - Wills - Wills, Probate and Administration Act 1898, s 29 (WPA Act) - a child of a testatrix predeceased her leaving issue - gift of residue in the testatrix’s will made “of the whole of my Estate equally” to the testatrix’s children - gift expressed to be “between such of my children as survive me as tenants common” - unless displaced by a contrary intention, WPA Act, s 29 will apply to save the gift for a child who predeceases the testatrix and will preserve the gift for the issue of that predeceased child - whether the gift in the testatrix’s will expresses a contrary intention for the purposes of s 29.
Legislation Cited: Succession Act 2006, s 4, Schedule 1.3, Item 2(2) Succession Act 1981 (Qld)
Wills Act 1958 (Vic), s 31
Wills Act 1997 (Vic), s 45
Wills, Probate and Administration Act 1898
Cases Cited: Bassett & Ors v Hall [1994] 1 VR 432
Burman v Burman [1998] QCA 250
Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Fell v Fell (1922) 31 CLR 268
Kavanagh v Reardon [2012] VSC 174
Perpetual Trustee Co Ltd v Wright & Ors; Re the Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18
Public Trustee of Queensland v Jacob & Ors [2006] QSC 372
Public Trustee of Queensland v Robertson &Murray [2000] QSC 301
Public Trustee of Queensland v Robertson [2005] 2 Qd R 444
Re King [1953] VLR 648
Public Trustee v Freeman; In Re Lathbridge, deceased (1958) VR 366
Re Macaudo [1993] 2 Qd R 269
Re Meredith [1924] 2 Ch 552
Re Trenfield ((unreported) Supreme Court of Queensland, 10 October 1986)
Texts Cited: I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Lawbook Co)
Professor H A J Ford in “Lapse of Devises and Bequests” (1962) 78 LQR 88
Category: Consequential orders (other than Costs)
Parties:
Plaintiff: Roseanna Thelma Longmore
First Defendant: Wayne Longmore
Second Defendant: Kathleen Lawrence
Third Defendant: Robert Walter John Longmore
Fourth Defendant: Duncan Longmore
Representation:
Counsel:

Plaintiff: L. Ellison SC
Fourth Defendant: A. Rogers
Solicitors
Plaintiff: Armando John Gardiman, Turner Freeman
First and Second Defendant: Submitting appearance
Fourth Defendant: Mark Gregory Squire, Boulton Julian Squire

File Number(s): (2017/186535)

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 Longmore v Longmore

Details

AGLC: Longmore v Longmore [2018] NSWSC 90
Case: [2018] NSWSC 90
Decision Date: 01 March 2018

CaseChat Overview and Summary

In the case of Longmore v Longmore, the dispute involved the interpretation of a will and the application of statutory provisions regarding the succession of a deceased estate. The matter was heard in the Supreme Court of Queensland. The testatrix, prior to her death, executed a will which contained a provision that directed the residue of her estate to be distributed equally among her children. However, a specific clause stated that the distribution would be made "between such of my children as survive me as tenants in common." The issue in this case was whether the statutory provision in the Wills, Probate and Administration Act 1898, section 29, would apply to preserve the gift for the predeceased child's issue, given the wording of the will.

The court was required to determine if the wording of the will expressed a contrary intention to the application of the statutory provision. The relevant statute, section 29 of the WPA Act, generally preserves gifts for the issue of a child who predeceases the testator unless there is a contrary intention expressed in the will. The primary legal issue was whether the phrase "between such of my children as survive me" indicated a contrary intention that would prevent the statutory provision from applying to the predeceased child's issue.

The court held that the wording of the will did not express a contrary intention for the purposes of section 29. The phrase "between such of my children as survive me" was not considered sufficient to displace the application of the statutory provision. Consequently, the gift in the will would be preserved for the issue of the predeceased child, in line with the general principles of the WPA Act. This decision underscores the importance of clear and unequivocal language in a will if a testator wishes to exclude the statutory preservation of gifts for the issue of a predeceased child.

The final order of the court was that the gift of the residue of the testatrix's estate should be distributed among the issue of the predeceased child, in accordance with the statutory preservation provision of the WPA Act. The court’s interpretation ensured that the deceased’s wishes were honoured in line with statutory protections for the issue of a predeceased child.

Orders