NSW Trustee and Guardian v Reid - [2021] NSWSC 1053

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee & Guardian v Reid [2021] NSWSC 1053
Hearing dates: 3 August 2021
Decision date: 23 August 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Declare that, on the true construction of the Will of the late May Ethel Basham dated 18 November 2011 in the events which have occurred, the gift of “all my real estate to my husband’s sister Jennifer Reid” in clause 5 of the Will of the late May Ethel Basham dated 18 November 2011 includes the property referred to in these reasons as the Blair Athol Property held by the plaintiff as trustee of the estate of the late Florrie Doreen Hurley.
2. Order that the plaintiff’s costs of the proceeding be paid out of the estate of the late May Ethel Basham on the indemnity basis.

Catchwords:
SUCCESSION — Administration of estates — Nature of devisee’s interest — Construction of Will providing gift of “all my real estate”

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW), s 153
Interpretation Act 1987 (NSW), s 21
NSW Trustee & Guardian Act 2009 (NSW), s 16
Probate and Administration Act 1898 (NSW), ss 3, 45, 47
Succession Act 2006 (NSW), ss 4, 30, 35, 38, 42,
Wills, Probate and Administration Act 1898 (NSW), s 5

Cases Cited:
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
Fairbairn v Varvaressos [2010] NSWCA 234
Lewis v O’Loughlin (1971) 125 CLR 320; [1971] HCA 53
Marley v Rawlings [2014] UKSC 2; [2015] AC 129
McBride v Hudson (1962) 107 CLR 604; [1963] ALR 226
Official Receiver in Bankruptcy v Schultz and Another (1990) 170 CLR 306; [1990] HCA 45
Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187
Pohlner v Pfeiffer (1964) 112 CLR 52; [1964] HCA 8
Re Leigh’s Will Trusts [1970] Ch 277

Texts Cited:
Dal Pont and Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths)
Heydon, JD, & Leeming, MJ, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)
Janes, S, et al, Wills, Probate and Administration Law in NSW (2nd ed, 2020, Thompson Reuters)
Mason and Handler, Succession Law and Practice in New South Wales (looseleaf, LexisNexis Butterworths)

Category: Principal judgment
Parties: NSW Trustee and Guardian (Plaintiff)
Jennifer Anne Reid (First Defendant)
Kim Loraine Little (Second Defendant)
Luke Thomas Basham (Third Defendant)
Peter Little (Fourth Defendant)
Robert Reid (Fifth Defendant)
Alison Margaret Quirk (Sixth Defendant)
Representation:
Counsel:
C Birtles (Plaintiff)
Solicitors:
NSW Trustee and Guardian (Plaintiff)

File Number(s): 2020/00339834
Publication restriction: Nil

Judgment

HER HONOUR: By summons filed on 30 November 2020, the plaintiff (the NSW Trustee & Guardian), as executor of the Will dated 18 November 2011 of the late May Ethel Basham (to whom I will refer, intending no disrespect, as May), seeks declaratory relief as to the true construction of May’s Will. The issue for construction is as to whether a gift…

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: [2021] NSWSC 1053
Decision Date: 23 August 2021

CaseChat Overview and Summary

In the case of NSW Trustee and Guardian v Reid, the court was called upon to interpret the wording of a will that left the residue of the estate to the beneficiary, which included the phrase “all my real estate.” The dispute arose over whether the phrase “all my real estate” should be interpreted as a gift to the beneficiary of the entire real estate of the deceased at the time of death, or if it included real estate that was subsequently acquired by the deceased after the will was executed. The dispute was heard and determined in the Supreme Court of New South Wales.

The legal issues that the court had to address were whether the term “all my real estate” meant all real estate owned by the deceased at the time of death or whether it encompassed real estate acquired after the execution of the will. The court also had to determine whether the phrase “all my real estate” constituted a vested interest or a contingent interest in the real estate.

The court found that the phrase “all my real estate” was clear and unambiguous and that it referred to all real estate owned by the deceased at the time of death. The court held that the phrase did not include real estate acquired by the deceased after the execution of the will. The court reasoned that the term “all my real estate” was a gift of a vested interest, which was the entire real estate of the deceased at the time of death, and not a contingent interest, which would have included real estate acquired after the execution of the will. The court further held that the phrase did not include any real estate that was specifically excluded from the gift by the will.

The court ordered that the residue of the estate, including the real estate owned by the deceased at the time of death, be distributed to the beneficiary as per the terms of the will. The court also ordered that any real estate acquired by the deceased after the execution of the will be excluded from the gift and be distributed to the residue of the estate.

Orders