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Reynolds v Bonnici

Reynolds v Bonnici

Case [2017] NSWSC 828 23 June 2017

Ademption of Testamentary Gift

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Supreme Court

New South Wales

Medium Neutral Citation: Reynolds v Bonnici [2017] NSWSC 828
Hearing dates: 11 November 2016
Decision date: 23 June 2017
Jurisdiction: Equity
Before: Lindsay J
Decision:
DECLARE that the gifts in favour of the plaintiff (a former de facto partner of the deceased) for which the Will of the deceased provides were not adeemed by transactions effected by the deceased during his lifetime affecting his interests and those of the plaintiff.

Catchwords:
SUCCESSION – Wills, probate and administration – Ademption of testamentary gift – Presumption against double portions – Not applicable otherwise than to legacy for a child or particular purpose – Not generally applicable as between de facto partners without particularised purpose.

SUCCESSION – Wills, Probate and administration – Ademption of testamentary gift – Where presumption against double portions not available – Express ademption – Intention to adeem must be brought to knowledge of donee at time of acceptance of inter vivos gift.
EQUITY – Ademption – Types – Ademption of legacy by portions – Ademption of legacy given for particular purpose – Express ademption – Intention of donor – Knowledge of donee – Different criteria for different types of ademption.
Legislation Cited: Family Law Act 1975 Cth
NSW Trustee and Guardian Act 2009 NSW
Powers Of Attorney Act 2003 NSW
Succession Act 2006 NSW
Superannuation Industry (Supervision) Act 1993
Cases Cited: Brown v Heffer (1967) 116 CLR 344
Fairweather v Fairweather (1944) 69 CLR 121
In re Everett; Executor Trustee and Agency Company of South Australia Limited v Everett [1917] SALR 52 In re Shields; Corbould-Ellis v Dales (1912) 1 Ch 591
Johnston v MacLarn [2001] NSWSC 932
Kirby v Allen (1998) 9 BPR [97734]
Lake v Quinton [1973] 1 NSWLR 111
McBride v Hudson (1962) 107 CLR 604.
Nagle v Corrigan (1948) 48 SR (NSW) 252 at 255
Parker v Dowling (1916) SR (NSW) 234
Plunkett v Bull (1915) 19 CLR 544
Pohlner v Pfeiffer (1964) 112 CLR 52
Public Trustee v Regan (1933) 33 SR (NSW) 361
Re Cameron [1999] Ch 286
Re Gibson [2014] 1 Qd R 553
Re Horrocks [1944] NZLR 314
Re Howes; Quinton v Howes [1971] 2 NSWLR 387
Re Morton [1963] VR 40
Re Sparrow, deceased [1967] VR 739
RL and NSW Trustee and Guardian (2012) 84 NSWLR 263
RL v NSW Trustee and Guardian (2012) 84 NSWLR 263
Royal North Shore Hospital v Crighton-Smith (1938) 60 CLR 798
Zahra v Francica [2009] NSWSC 1206
Texts Cited: A text book of Roman Law” (Cambridge University Press, 3rd ed, 1975), WW Buckland
Equity: Doctrine and Remedies Meagher, Gummow Equitable Ademption Within the Family (1987) 17 Western Australian Law Review 272, Neville Crago
Snell’s Equity (33rd ed, 2015)
Equity (5th ed, 2015) Meagher, Gummow and Lehane
NSW Law Reform Commission, Report 85 (April 1998), Uniform Succession Laws: The Law Of Wills, chapter 9.2
NSW Law Reform Commission Report 116 (April 2007), Uniform Succession Laws: Intestacy, Chapter 13
Category: Principal judgment
Parties:
Plaintiff: Narelle Jane Reynolds

Defendant/Cross Claimant: Alison…

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 Reynolds v Bonnici

Details

AGLC: Reynolds v Bonnici [2017] NSWSC 828
Case: [2017] NSWSC 828
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case of Reynolds v Bonnici involved the parties, Reynolds and Bonnici, disputing the interpretation and application of testamentary provisions in a will. The primary issue revolved around the ademption of a testamentary gift, specifically whether a presumption against double portions applied in this context, and if so, under what circumstances. The case was heard in the Supreme Court of Victoria.

The legal issues before the court encompassed whether the presumption against double portions was applicable to de facto partners, and if this presumption could be invoked without a specific purpose being identified. Additionally, the court had to determine whether express ademption occurred, necessitating that the intention to adeem be communicated to the donee at the time of accepting the inter vivos gift. The court also had to distinguish between different types of ademption, considering the intention of the donor and the knowledge of the donee.

The court found that the presumption against double portions did not generally apply to de facto partners unless a particularised purpose was identified. It was determined that express ademption required the donor's intention to be communicated to the donee at the time of accepting the inter vivos gift. Furthermore, the court outlined the criteria for various types of ademption, noting that the criteria for ademption by portions and ademption of a legacy given for a particular purpose were distinct. Based on these findings, the court ruled in favour of the respondent, Bonnici.

The final orders of the court upheld the respondent's entitlement to the contested assets, clarifying the conditions under which ademption applies and the necessity for clear communication of the donor's intention. The court's decision provided guidance on the interpretation of wills and the ademption of testamentary gifts in similar future cases.

Orders