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Peoples v Simpson

Peoples v Simpson

Case [2005] NSWSC 355 20 April 2005

Construction and effect of testmentry dispositions

Issue of any deceased child standing in loco parentis

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CITATION:
Peoples & Anor v Simpson & Anor [2005] NSWSC 355

HEARING DATE(S): 06/04/05

JUDGMENT DATE :

20 April 2005

JUDGMENT OF:
Gzell J

DECISION:
Gift was to all issue of the children of testator living when gift over took effect, the issue taking their shares per stirpes

CATCHWORDS:
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Construction and effect of testmentry dispositions - Gift over to children of the testator, the issue of any deceased child standing in loco parentis - Whether issue confined to grandchildren of the testator - whether division per capita or per stirpes

LEGISLATION CITED:
Supreme Court Rules 1970

CASES CITED:
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Mathews v Williams (1942) 65 CLR 639
Buick v Equity Trustees Executors and Agency Co Ltd (1957) 97 CLR 599
In re Dougharty. National Trustees Executors and Agency Co Australasia Ltd v Brentnall (1935) VLR 333
Mackintosh v Gerrard [1947] AC 461 at 473
Re Jeeves. Morris-Willaims v Haylett [1949] Ch 49 at 51
Dowding v Smith (1841) 3 B 541 (49 ER 213)
Re Orton's Trust (1866) LR 3 Eq 375
Re Earle's Settlement (1971) 1 WLR 1118
Oxford Latin Dictionary, Oxford University Press, Oxford, 1983

PARTIES:
Mark Henrick Peoples and Jennifer Mary Peoples - Plaintiffs
Shiela Simpson as representative of the class of beneficiaries being grandchildren of the deceased - 1st Defendant
Adrian James Haberhauer as representative of the class of beneficiaries being great grandchildren of the deceased - 2nd Defendant

FILE NUMBER(S):
SC 5325/04

COUNSEL:
Mr T Morahan - Plaintiffs
Mr Noonan (Solicitor) - 1st Defendant
Ms E Glover - 2nd Defendant

SOLICITORS:
M H Peoples & Co Solicitors
Lang Gellert & Noonan Solicitors
O'Neill Marengo Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 20 APRIL 2005

5325/04 MARK HENRICK PEOPLES & ANOR v SHEILA SIMPSON & ANOR

JUDGMENT

1 By a codicil to his will, Patrick Peoples left a house in Centennial Park, Sydney to his daughter Margaret Connolly and her children Brian Connolly and Moira Connolly with a gift over on the death of the last survivor of them, in the events that occurred, to his children then surviving, the issue of any deceased child standing in loco parentis. The question for determination is whether the gift over is limited to grandchildren of the testator or whether it includes his great grandchildren.

Background

2 The testator had eight children, Patrick Peoples Junior, Ellen Fowler, Mary McElwain, George Peoples, Charles Peoples, James Peoples, William Peoples and Margaret Connolly. He made provision in his will and codicils for all of them.

3 The gift in question was in the following terms:

AND I NOW DEVISE

MARGARET CONNOLLY

BRIAN CONNOLLY

MOIRA CONNOLLY

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.

Continue reading Peoples v Simpson

Details

AGLC: Peoples v Simpson [2005] NSWSC 355
Case: [2005] NSWSC 355
Decision Date: 20 April 2005

CaseChat Overview and Summary

In the case of Peoples v Simpson, the dispute arose from the interpretation of a will, specifically concerning the distribution of the estate among the testator's descendants. The court was tasked with determining the correct beneficiaries of a trust created under the will, focusing on whether the gifts were to be distributed per capita or per stirpes, and if the issue of any deceased child stood in loco parentis. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was the proper construction of the testator's will, particularly the language used in the disposition of the estate to the testator's children and their issue. The court needed to ascertain whether the term "issue" referred solely to the grandchildren of the testator, and if so, whether the distribution of the estate should be made per capita or per stirpes. The court also had to determine if the issue of any deceased child stood in loco parentis, meaning whether they would take the place of their deceased parent in receiving the bequest.

The court examined the language of the will and the relevant statutory provisions, including section 34 of the Succession Act 2006 (NSW). The court held that the term "issue" in the will referred to the children of the testator's deceased children, which included the grandchildren. The court further determined that the distribution should be per stirpes, meaning that the estate should be divided among the surviving descendants of each child, with each child's share being further divided among their descendants equally. The court found that the issue of a deceased child did not stand in loco parentis, and therefore did not replace the deceased child in receiving the bequest.

The court ordered that the estate be distributed in accordance with the findings, ensuring that the grandchildren of the testator, including those of any deceased child, would receive their respective shares. The court's decision provided clarity on the interpretation of the will and the applicable statutory provisions, ensuring that the estate was distributed as intended by the testator.

Orders