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NSW Trustee and Guardian v Matthews

NSW Trustee and Guardian v Matthews

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Case Copied 16 May 2024 35 min read

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Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Matthews [2024] NSWSC 595
Hearing dates: 16 May 2024
Date of orders: 16 May 2024
Decision date: 16 May 2024
Jurisdiction: Equity
Before: Meek J
Decision:
Determination that the remainder interest of the deceased’s estate ought to be distributed on the basis of an intestacy.

Catchwords:
JUDICIAL ADVICE — Discussion of nature of judicial advice — Discussion of ability of Court to expeditiously transform proceedings from a private advice application to a contested application binding all relevant interested parties, conducive to the just, quick and cheap disposition of the real issues between them
WILL CONSTRUCTION — Identification of appropriate approach to Will construction — Discussion of guides to Will construction, including grammar and sentence structure
WILL CONSTRUCTION — Last nominated remainder beneficiary predeceases the life tenant on the same day — Issue regarding successive interests and when the remainder interests vest — Held that the disputed clause which included a phrase “as shall be living at the date of death” in context to be construed as creating a survivorship condition that one or more of the remainder beneficiaries be living at the time of death of the life tenant, not merely at the date of the death of the life tenant
WORDS — “date”
RECKONING OF TIME — The law does not in general recognise fractions of a day — However, the law will have regard to parts of a day where it is necessary for the purposes of the decision to establish a sequence of events

Legislation Cited:
Administration of Estates Act 1954 (NSW)
Conveyancing Act 1919 (NSW)
Trustee Act 1925 (NSW)
Wills, Probate and Administration Act1898 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bassett v Bassett (2003) 58 NSWLR 258; [2003] NSWSC 691
Campbell v Strangeways (1877) 3 CPD 105
Combe v Pitt (1763) 3 Burr 1423; 97 ER 907
Cooper v Chief Commissioner of Land Tax (NSW) (1988) 12 NSWLR 660
Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep)
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Gibb-Maitland v Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579; [1947] HCA 35
Knight v Knight (1912) 14 CLR 86; [1912] HCA 36
La Forrest v Ford [2002] 2 Qd R 44; [2001] QCA 455
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
McLean v The Public Trust [2019] NZCA 449
Middleton v Schofield [2022] NSWSC 1454
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Muir v…

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: [2024] NSWSC 595
Decision Date: 16 May 2024

CaseChat Overview and Summary

In the matter of NSW Trustee and Guardian v Matthews, the dispute centred around the interpretation of a clause in a will. The court was tasked with determining the appropriate method for construing the will, specifically focusing on the grammar and sentence structure. Additionally, the court had to decide on the vesting of successive interests in the will, particularly in the scenario where the last nominated remainder beneficiary predeceased the life tenant on the same day. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the correct approach to interpreting the will, including the meaning of the phrase "as shall be living at the date of death," and whether the remainder interest vested when the last nominated remainder beneficiary died on the same day as the life tenant. The court also needed to determine the legal significance of the word "date" in this context and whether the law could consider parts of a day when necessary to establish the sequence of events.

The court found that the phrase “as shall be living at the date of death” created a survivorship condition, meaning that one or more of the remainder beneficiaries must be alive at the time of the life tenant's death, not merely at the moment of the life tenant's death. The court emphasised that while the law generally does not recognise fractions of a day, it can consider parts of a day when required to establish the sequence of events. Consequently, the court held that the remainder interest vested when the last nominated remainder beneficiary died on the same day as the life tenant.

The final orders of the court were that the disputed clause in the will was to be interpreted in a manner that one or more of the remainder beneficiaries must be alive at the time of the life tenant's death. The remainder interest vested when the last nominated remainder beneficiary died on the same day as the life tenant, and the court's decision facilitated a just, quick, and inexpensive resolution of the issues.

Orders