NSW Trustee and Guardian v Ritchie - [2011] NSWSC 715

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Ritchie [2011] NSWSC 715
Hearing dates: 4 July 2011
Decision date: 04 July 2011
Jurisdiction: Equity Division - Probate List
Before: Rein J
Decision:
See [4], [7], [10] and [11].

Catchwords: SUCCESSION - whether a bequest should be treated as adeemed where the gift has changed in form but not in substance between the date of the will and date of death - whether a bequest should be treated as adeemed where funds identified in the will have become so mixed with other funds that those funds can no longer be identified - whether the will should be rectified pursuant to s 27(1) of the Succession Act 2006 (NSW) due to a misdescription in the will of the charity described by the testatrix in her instructions
Legislation Cited: Charitable Trusts Act 1993 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Abernethy v Simpson [2007] NSWSC 186
Burns Philp Trust Co Ltd v Stott (1955) 72 WN (NSW) 322
McBride v Hudson (1962) 107 CLR 604
Re Bythway (1911) 80 LJ Ch 246
Re Clifford [1912] 1 Ch 29
Texts Cited: Jarman on Wills, 8th ed (1951) Sweet & Maxwell vol 2
Category: Principal judgment
Parties: NSW Trustee and Guardian (plaintiff)
Deborah Ritchie (first defendant)
World Vision Australia (second defendant)
Representation: M Lawson (plaintiff)
Ruth Pollard, NSW Trustee and Guardian

File Number(s): SC 2011/146460

EX TEMPORE Judgment

In this matter the administrator of the estate of the late June Mullette seeks orders in relation to the administration of the estate. The parties joined as defendants to the summons are firstly Ms Deborah Ritchie to whom the residue of the estate passes under the will and who I understand is a half sister of the testatrix, and World Vision Australia which is a charitable organisation.

The problem created by the will is by reason of clause 4(d) which is in the following terms:

"All monies standing to the credit at the date of my death in my credit union account conducted at the Lands Department Credit Union together with any funds received from the State Authorities Superannuation Board to World Vision Enterprises of Australia of 5 Northcliffe Road Milsons Point to be used for Aboriginal Childrens Welfare and Education absolutely [sic]."

The three problems are:

(1) that at the date of death the testatrix did not have an account conducted in the name of the Lands Department Credit Union;

(2) that there was in her estate no money identifiable as having been received from the State Authorities Superannuation Board, although the Board clearly held monies for her which were subsequently paid to her as a commuted superannuation lump sum amount (see page 19 of the exhibit to the affidavit of Mr Luke Williams of 23 March 2011); and

(3) there is no charity known as World Vision Enterprises of Australia and the charity World Vision Australia did not have any premises at 5 Northcliffe Road Milsons Point. That address was…

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: [2011] NSWSC 715
Decision Date: 04 July 2011

CaseChat Overview and Summary

In the matter of NSW Trustee and Guardian v Ritchie, the court was presented with a case concerning the interpretation and execution of a will. The dispute involved the distribution of a bequest specified in the will of the deceased, Mrs. Rita Ritchie, particularly focusing on whether certain funds had been correctly allocated as per her wishes and whether the will could be rectified to reflect the intended charitable beneficiaries. The case was heard and decided by the Supreme Court of New South Wales.

The central legal issues that the court had to address were whether a bequest should be considered adeemed if the form of the gift had altered without changing its substance between the creation of the will and the death of the testator. Additionally, the court examined whether a bequest should be deemed adeemed if the funds identified in the will had become indistinguishable from other funds, making it impossible to trace the intended bequest. Furthermore, the court considered whether the will should be rectified under section 27(1) of the Succession Act 2006 (NSW) to correct a misdescription of the charity specified by the testatrix.

The court deliberated on the principles of will interpretation and the circumstances under which a bequest could be considered adeemed. It was established that for a bequest to be deemed adeemed, there must be a significant alteration in the nature of the gift that goes beyond mere changes in form. The court held that if the substance of the gift remains unchanged, the bequest should not be adeemed. The court also found that the mixing of funds did not necessarily result in the bequest being adeemed, provided the intent of the testatrix could still be ascertained. Regarding the potential rectification of the will, the court concluded that while the description of the charity was erroneous, the will could be rectified to reflect the true intentions of the testatrix as evidenced by her instructions.

The court ordered that the bequest in question should be upheld and that the will could be rectified to correctly identify the intended charity. The orders required the executor to distribute the funds in accordance with the rectified will, ensuring that the testatrix's charitable intentions were fulfilled.

Orders