Re Pitts

[2005] NSWSC 887

CITATION:	Re Pitts [2005] NSWSC 887
HEARING DATE(S):	30/08/05
JUDGMENT DATE :	30 August 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Leave given to make will.

CATCHWORDS:	SUCCESSION [1]- Will- Application by minor for leave to make will- Testator received provision from grandfather's estate- Wished to leave his estate to siblings not parents- Leave given.
LEGISLATION CITED:	Wills Probate & Administration Act 1898, s 6A
CASES CITED:	Re M (2000) 50 NSWLR 401
PARTIES:	Matthew Pitts by his Tutor Helena Carty (P)
FILE NUMBER(S):	SC 4218/05
COUNSEL:	A L Hill (P)
SOLICITORS:	I V Knight (Crown Solicitor) (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 30 August 2005

4218/05 – RE PITTS

JUDGMENT

1 HIS HONOUR: This is an application under s 6A of the Wills, Probate and Administration Act 1898 for the Court’s leave for a person under the age of eighteen years to make a will. The proposed testator is currently aged fourteen. He has had a rather disturbed life and for reasons that I quite understand, does not want his property to pass, as it would according to the laws of intestacy, to his parents, but rather to his siblings.

2 The case is very close factually to what occurred in Re M (2000) 50 NSWLR 401 where I set out the principles that were to be applied in this sort of case.

3 Accordingly, I give the appropriate leave. However, with respect to whoever drafted annexure A to the plaintiff’s affidavit, which is the draft will, I am not at all sure that it clearly sets out what the testator would want to do. Basically what he wants is that his sister Teneka is to receive double the share of any other sibling so that if the three siblings are all alive and attain twenty-five years of age, Teneka would get two parts and each of the others one.

4 However, as the will uses the unfortunate term in clause 1.5, “If the gifts in clause 1.1, 1.2 and 1.3 do not take effect”, it is unclear, accordingly, whether if the gift for one sibling fails because the sibling survives but does not attain twenty-five, that passes to the charity or else is distributed amongst the other siblings.

5 I do not wish to redraft the will on the run but I will stand the matter over for short minutes to be brought into chambers. Whoever redrafts the will should, I think, first of all know that this will is made pursuant to leave given by the Supreme Court under s 6A of the Wills, Probate and Administration Act 1898 in proceedings number 4218/05. I then direct that the estate is to pass to the Public Trustee to be split into as many parts as there are surviving siblings plus one, and then provide that the income of the parts is to pass to each of the siblings only when they attain twenty-five, but if one of the siblings dies before twenty-five that person’s part is to be redivided so that Teneka receives double that of the remaining sibling and that only if all three siblings do not attain twenty-five, are the gifts in 1.5 and 1.6 to take effect.

6 There seems to be a slight problem also that the drafter has given the gifts to the charities if they exist when the testator dies. The better way may be to say "if it exists when the gift fails" because there is a possibility that the charity may pass out of existence or move to some other charity between the two dates.

7 Accordingly, I publish these reasons and stand the matter over for short minutes to be brought into my chambers.

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