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 1993Cases 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 1206Texts 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 13Category: Principal judgment Parties: Plaintiff: Narelle Jane Reynolds
Defendant/Cross Claimant: Alison…
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- Reynolds v Bonnici [2017] NSWSC 828
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- [2017] NSWSC 828
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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