NSW Trustee and Guardian v Hirsch - [2013] NSWSC 1397

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397
Hearing dates: 11 September 2013
Decision date: 24 September 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [41] of judgment.

Catchwords: SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - testamentary note lacking express words of gift to first defendant - construction or rectification of statement that first defendant will "not receive" part of the estate despite indication of intention to benefit first defendant - validity of restraints on alienation - distinction between restraint on alienation by condition subsequent imposed on gift and by terms of trust
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: ANZ Trustees Limited v Hamlet [2010] VSC 207
Lockrey v Ferris [2011] NSWSC 179
Perrin v Morgan [1943] AC 399
Hatzantonis v Lawrence [2003] NSWSC 914
Public Trustee v Herbert [2009] NSWSC 366
Leader v Duffey (1888) 13 App Cas 294
Ward v Brown [1916] 2 AC 121
Kirby-Smith v Parnell [1903] 1 Ch 483
Fell v Fell (1922) 31 CLR 268
Towns v Wentworth (1858) 11 Moo PCC 526
Coorey v George (Powell J, 27 February 1986, unreported)
Perpetual Trustee Co Limited v Wright (1987) 9 NSWLR 18
Fairbairn v Varvaressos (2010) 78 NSWLR 577
Fitzgerald v Masters (1956) 95 CLR 420
Tatham v Huxtable (1950) 81 CLR 639
Russo v Russo [2009] VSC 491
Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98
Nicholls v Public Trustee (SA) [1945] HCA 32; (1945) 72 CLR 86
James v Gard (1887) 13 VLR 908
Texts Cited: Theobald on Wills, Sweet and Maxwell, 17th ed 2010
Hawkins on Wills, 2nd ed
Category: Principal judgment
Parties: NSW Trustee and Guardian (Plaintiff)
Sophia Hirsch (1st Defendant)
Attorney General of New South Wales (2nd Defendant)
Representation: Counsel:
L Ellison SC with A Lloyd (Plaintiff)
M Pringle (1st Defendant)
Submitting Appearance (2nd Defendant)
Solicitors:
Bartier Perry (Plaintiff)
ProActive Legal Pty Ltd (1st Defendant)

File Number(s): 2012/245681

Judgment

HIS HONOUR: These proceedings concern the estate of Martha Amaryllis Terre-Blanche who died on 10 September 2008 aged 84. On 26 July 2011 the Court made a grant to the NSW Trustee and Guardian of letters of administration with the will of the deceased annexed. The will annexed to the grant is an informal will dated 27 June 2000. The grant was made pursuant to s 8 of the Succession Act 2006 (NSW). The estate has been realised and is presently valued at a little over $1 million subject to the costs of these proceedings and ongoing costs of administration.

The deceased was born in 1924 in Greece. The first defendant, Sophia Hirsch, was her first cousin. Sophia Hirsch was born in Romania in 1928. The deceased had another cousin, Melita Sommer, born in 1924 also in Romania. Melita Sommer changed her name to Melita Pecherskaya…

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: [2013] NSWSC 1397
Decision Date: 24 September 2013

CaseChat Overview and Summary

In the case of NSW Trustee and Guardian v Hirsch, the court was tasked with interpreting a testamentary note left by the deceased, Max Hirsch. The dispute arose over whether the first defendant, who was not explicitly mentioned as a recipient in the note, was intended to benefit from the estate. The court was required to determine the meaning of the note, which stated that the first defendant would "not receive" a part of the estate, despite other indications that the deceased intended to benefit the first defendant. The case also considered the validity of restraints on alienation in the context of testamentary dispositions.

The legal issues before the court included the construction of the testamentary note and whether there was an intention to gift to the first defendant despite the absence of explicit wording. The court had to decide whether the note should be rectified to reflect the deceased's intention and whether the restraint on alienation was valid. The court also needed to distinguish between a restraint imposed on a gift and one imposed by the terms of a trust.

The court concluded that the testamentary note, while not explicitly stating a gift to the first defendant, did indicate an intention to benefit them. The court found that the note should be rectified to reflect this intention, allowing the first defendant to benefit from the estate as intended. The court further held that the restraint on alienation was valid, distinguishing between a condition subsequent imposed on a gift and a restraint imposed by the terms of a trust. The restraint was upheld as it was not considered to be an unreasonable interference with the first defendant's rights.

The final orders of the court allowed the first defendant to benefit from the estate as intended by the deceased. The court rectified the testamentary note to reflect this intention and upheld the validity of the restraint on alienation, distinguishing it from an unreasonable interference with the first defendant's rights.

Orders