Napper v Miller - [2003] NSWSC 376

CITATION: Napper v Miller [2003] NSWSC 376

HEARING DATE(S): 02/04/03

JUDGMENT DATE:
6 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: On the text of the will the word "survive" is to be given its ordinary legal meaning, therefore any children born after the death of the testatrix do not take under the will.

CATCHWORDS: SUCCESSION [168][179]- Will- Construction- Gift to grandchildren who survive testatrix and attain 25- Whether postnates take. WORDS & PHRASES- Meaning of "survive".

CASES CITED: Brennan v Permanent Trustee Company of NSW Ltd (1945) 73 CLR 404
Hill v Crook (1873) LR 6 HL 265
In re Stapleton [1969] SASR 115
Knight v Knight (1912) 14 CLR 86
McGrath v Hughes (Bryson J, 24.7.1991)
Phipps v Ackers (1842) 9 CL & F 583; 8 ER 539
Re Andrews [1985] 2 Qd R 161
Re Arndt [1990] WAR 5
Re Clark's Estate (1863) 3 DeGJ & S 111; 46 ER 579
Wilson v Harris (1964) 65 SR (NSW) 329

PARTIES :
Howard James Napper (P)
Ian Colwell Miller (D1)
Deborah Jean Napper (D2)
Richard John Neal (D3)

FILE NUMBER(S): SC 4046/01

COUNSEL: G Blake SC (P)
P H Blackburn-Hart (D3)

SOLICITORS: Hancock Alldis & Co (P)
Teece Hodgson & Ward (D3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 6 May 2003

4046/01 – NAPPER v MILLER

JUDGMENT

1 HIS HONOUR: The present proceedings concern the true construction of clause 4(a) of the last will and testament of 21 December 1998 of the late Doreen Molly Napper. Mrs Napper died on 16 February 2000, probate of that will being granted to the plaintiff and the first defendant on 16 August 2000. Clause 4 of the will and part of clause 5, so far as is relevant, are as follows:

"4. I GIVE the rest and residue of my estate of whatsoever kind to my Executors ... UPON TRUST :

(a) as to an undivided one half share thereof for the child or children of my son Howard James Napper who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common; and

(b) as to an undivided one half share thereof for the child or children of my daughter Naomi Elizabeth McGee-Collett who shall survive me and attain the age of twenty five (25) years, and if more than one in equal shares as tenants in common,

PROVIDED HOWEVER that if there shall be no child or children who shall survive to attain a vested interest in respect of either or both shares then such share or shares as have failed shall be held by my Executors UPON TRUST in equal shares for (two named hospitals).

2 As…

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 Napper v Miller

Details

AGLC: Napper v Miller [2003] NSWSC 376
Case: [2003] NSWSC 376
Decision Date: 6 May 2003

CaseChat Overview and Summary

In the matter of Napper v Miller, the High Court of Australia was tasked with interpreting the terms of a will left by the deceased, Miller. The dispute centred on the distribution of Miller's estate among her grandchildren, specifically whether the grandchildren who were born after the execution of the will, known as postnates, could inherit under the terms of the will. The executor of the will, Napper, argued that the postnates were not entitled to inherit as they did not "survive" the testatrix, while Miller's heirs contended that the postnates should receive their share as they were alive at the time of the testatrix's death.

The primary legal issue before the court was the interpretation of the phrase "survive" in the context of Miller's will. The court was required to determine whether this term, as used in the will, encompassed the situation where grandchildren were born after the execution of the will but before the testatrix's death. The court had to consider the ordinary meaning of the term "survive" and whether the intention of the testatrix could be ascertained from the will to include postnates in the distribution of her estate.

The court held that the term "survive" in the context of Miller's will should be interpreted in its ordinary sense, meaning that the beneficiaries must be alive at the time of the testatrix's death. The court found that the testatrix's intention could not be reasonably inferred to include postnates, as there was no clear evidence in the will to suggest that the testatrix intended to disinherit her biological grandchildren. Consequently, the court ruled that the postnates were not entitled to inherit under the terms of the will. The court's decision was based on the principle that the intention of the testator must be given effect to, but only to the extent that it can be ascertained from the will and is not contrary to public policy.

The final orders of the court were that the grandchildren born before the testatrix's death were to receive their respective shares of the estate as per the terms of the will. The postnates were not entitled to any inheritance under the will, and the estate was to be distributed accordingly. The court's decision in this case provides clarity on the interpretation of the term "survive" in the context of wills and the importance of ascertaining the intention of the testator from the will itself.

Orders