NSW Trustee and Guardian v Bensley - [2012] NSWSC 655

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee & Guardian v Bensley & Ors [2012] NSWSC 655
Hearing dates: 4 June 2012
Decision date: 04 June 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
1. Declare that the gift of the "property [x/x-x xxx xxxxxx], Hornsby to my niece GLYNIS BENSLEY" per Clause 6 of the Will of the late Dawn Bensley dated 30 September 2009 has adeemed and, as such, the proceeds of sale of the property located at [x/x-x xxx xxxxxx], Hornsby passes into the rest and residue of the Estate to be dealt with in accordance with Clause 8 of the Will to the benefit of the First, Second and Third Defendants in the proportions nominated therein;
2. Order that the claim for relief in paragraph 2 of the summons be dismissed.
3. Order that the Plaintiff's costs of the Summons be paid

Catchwords:
WILLS, PROBATE AND ADMINISTRATION - construction and effect of testamentary disposition - ademption of specific bequest - whether change of substance of asset adeems gift - where valid sale of specifically bequeathed property during deceased's lifetime - held proceeds of sale of property to be dealt with as residue of estate
WORDS AND PHRASES - ademption
Legislation Cited: Conveyancing Act 1919
NSW Trustee and Guardianship Act 2009
Protected Estates Act 1983
Powers of Attorney Act 2003
Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39
Category: Principal judgment
Parties: NSW Trustee & Guardian as executor of the estate of the late Dawn Bensley (Plaintiff)
Glynis Catherine Bensley (1st Defendant)
Claire Connelly (2nd Defendant)
Patrick Bensley (3rd Defendant)
Representation: Counsel:
M Lawson (Plaintiff)
Solicitors:
Public Trustee NSW (Plaintiff)

File Number(s): 2012/71994

Judgment

HIS HONOUR: The plaintiff is the executor of the will of Dawn Bensley who died on 19 July 2011. The deceased left a will dated 30 September 2009. By that will she gave certain pecuniary legacies. She also made a gift of her property in [xxx xxxxxx], Hornsby ("the Hornsby property") to her niece, Glynis Bensley. She directed that the residue of her estate be divided between two nieces, Glynis Bensley and Claire Connolly, and her brother, Patrick Bensley.

By its summons the plaintiff seeks a declaration as to whether the gift of the Hornsby property to Glynis Bensley has been adeemed.

On 5 March 1998 the deceased appointed the Public Trustee as her attorney. The power of attorney was expressed to be a general power that was to continue to be effective, notwithstanding that after its execution Miss Bensley might suffer loss of capacity. The authority conferred on the Public Trustee was that provided for in the then s 163B of the Conveyancing Act 1919.

By 5 March 2010 Miss Bensley, then aged 88 years, was diagnosed as having severe dementia. She was offered permanent placement at the Warrigal Care Bundanoon Aged Care Home and subsequently took up residence there.

The NSW Trustee and Guardian (which is the successor of the Public Trustee) decided…

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: [2012] NSWSC 655
Decision Date: 04 June 2012

CaseChat Overview and Summary

The case of NSW Trustee and Guardian v Bensley involved a dispute regarding the interpretation of a will and the effect of the sale of a specifically bequeathed asset during the deceased's lifetime. The deceased had bequeathed a specific parcel of land to a beneficiary in their will. However, during their lifetime, the deceased sold the land in question. The question before the court was whether the sale of the land resulted in the adeemed of the specific bequest, or whether the proceeds of the sale should be treated as part of the residue of the estate. The court was required to determine whether the change in substance of the asset due to its sale during the deceased's lifetime was sufficient to adeem the gift. The court found that the proceeds of the sale of the property should be dealt with as part of the residue of the estate rather than being adeems, and thus the specific bequest was not adeems by the sale of the property during the deceased's lifetime. The court's decision hinged on its interpretation of the concept of ademption and the effect of a change in the substance of an asset on a specific bequest. The court concluded that the sale of the property did not result in the adeems of the specific bequest, and that the proceeds of the sale should be treated as part of the residue of the estate. This decision provides guidance on the interpretation of testamentary dispositions and the effect of changes to the substance of an asset on specific bequests.

Orders