Phillips v McCabe

Case [2016] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Civil)

PHILLIPS v MCCABE & ORS

[2016] SASC 27

Judgment of The Honourable Justice Gray

24 February 2016

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - GENERALLY

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - CONTINGENCY INVOLVING DEATH - DEATH COUPLED WITH CONTINGENCY - DEATH OF PERSON IN TESTATOR'S LIFETIME AND SUBSTITUTION - GENERALLY

CHARITIES - NON-CHARITABLE PURPOSES - MONUMENTS AND MEMORIALS

Application for the determination of questions arising in relation to the administration of a deceased estate.  The deceased had a large extended family.  At the time of the making of her will, the deceased’s closest relatives were her first cousins.  Some of the deceased’s first cousins were alive, while others had died with issue.  By the deceased’s will, the residuary estate is left to the “children of the deceased brothers and sisters of both [the deceased’s] late mother and father who [survive the deceased]”.  There is also a substitution of beneficiaries clause, which provides that if any beneficiary did not survive the deceased, any child of theirs living at the date of the deceased’s death should take their parent’s share of the deceased’s estate.

Whether the substitution of beneficiary clause applies to the clause which disposes of the residuary estate.  Whether a clause directing the deceased’s trustees to maintain the family graves is void.

Held:

1.      The residuary estate clause creates a class gift.  The first cousins who predecease do not take a share of the class gift and, as such, are not beneficiaries to the will for the purpose of the substitution of beneficiaries clause.

2.      The clause which directs the trustees to apply capital and income toward the upkeep and maintenance of family graves is void as it purports to create a non-charitable perpetual trust.

Supreme Court Civil Rules 2006 (SA) r 206, referred to.
Nicol v Chant (1909) 7 CLR 569; Fell v Fell (1922) 31 CLR 268; Ritchie v Magree (1964) 114 CLR 173; Boyes v Cook (1880) 14 Ch D 53; Sammut v Manzi [2009] 1 WLR 1834; In re Allsop, decd [1968] Ch 39; In re Redfern (1877) 6 Ch D 133; In the Will of Dyer deceased (1910) 12 WALR 155; Hill v Crook (1873) LR 6 HL 265; Fairbairn v Varvaressos (2010) 78 NSWLR 577; Kingsbury v Walter [1901] AC 187, considered.

PHILLIPS v MCCABE & ORS
[2016] SASC 27

Civil

GRAY J.

  1. This is an application for the determination of questions arising in relation to the administration of a deceased estate.[1]

    [1]    Supreme Court Civil Rules 2006 (SA) rule 206:

    Actions for administration

    (1)In an action related to a trust or deceased estate, the Court may (if it thinks fit) determine questions arising in the action without making an order for administration.

    (2)In any such action, the Court may make orders for the protection of persons who may be interested…

Continue reading Phillips v McCabe

Sign in free to access the full text

Details
AGLC
Phillips v McCabe [2016] SASC 27
Case
[2016] SASC 27
Decision Date

CaseChat Overview and Summary

In Phillips v McCabe, the primary dispute involved the interpretation and effect of testamentary dispositions contained in a will. The case was heard in a court of appeal where the primary issues revolved around the construction and validity of specific clauses within the will, particularly those relating to the distribution of the estate and the maintenance of family graves.

The court was tasked with determining whether certain clauses in the will were valid and enforceable, specifically clause 3(h) which provided for the maintenance of family graves. The court had to address the legal principles applicable to the construction of testamentary dispositions, including the rules governing contingencies involving death and the substitution of beneficiaries. Additionally, the court examined whether the clause intended for the maintenance of the family graves could be considered a charitable purpose under succession laws.

In reaching its decision, the court found that clause 3(h) was void as it was not possible to ascertain the testator's intention with sufficient certainty. The court reasoned that the clause was not sufficiently clear to ensure its enforceability and therefore could not be given effect. The court also noted that while the clause was void, it did not prevent the defendants from reaching a private agreement on how to allocate their share of the estate, including potential expenditure on the restoration of the cemetery fences damaged in a recent bushfire. The court concluded that the remaining clauses of the will were valid and should be enforced according to their terms.

The court's final orders included a declaration that clause 3(h) was void, while affirming the validity and enforceability of the other clauses in the will. The court reserved judgment to allow time for the potential beneficiaries to reach an agreement regarding the maintenance of the family graves, indicating a preference for private arrangements over judicial intervention in such matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J
On the hearing of the appeal, counsel noted that it may be possible for the holders of the residual estate, especially in circumstances where only the first group of potential beneficiaries were to take a share, to come to an agreement about the maintenance and upkeep of the family graves. I was asked to reserve judgment for some weeks in order to allow this to happen. I have not been advised that an agreement has been reached but I note that, notwithstanding my conclusion that clause 3(h) is void, there is no bar to the first to eleventh defendants coming to private understanding as to how their share of the additional $200,000.00 should be spent. The defendants may wish to consider whether some money is spent restoring the fences to the cemetery that were destroyed in the recent Pinery bush fire. Conclusion I would answer question (a) in the negative. I would answer questions (b)(i) and (ii) in the affirmative. Question (c) does not arise for consideration. I would answer question (d) in the negative. Question (e) does not arise as I find that clause 3(h) is void.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.