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Roberts v Moses and Palmer

Roberts v Moses and Palmer

Case [2018] NSWSC 1145 26 July 2018

Construction and effect of testamentary dispositions

Gift of income

Gift of shares

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Reid; Roberts v Moses and Palmer [2018] NSWSC 1145
Hearing dates: 28-30 November, 1 December 2017; and 2 May 2018
Decision date: 26 July 2018
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
Declarations and orders to be made consequentially upon construction of the will and codicils of the deceased.

Catchwords: SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – Gift of income from dividends on shares owned only indirectly by testator through company owned and controlled by him – Gift of shares in that company to another person, subject to the gift of income – By accepting gift of shares, second person personally bound in equity to satisfy gift of income
Legislation Cited: Income Tax Assessment Act 1997 Cth
Succession Act 2006 NSW
Cases Cited: Attorney General v Wax Chandlers Co. (1873) LR 6 HL 1
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Fell v Fell (1922) 31 CLR 268
Gill v Gill (1921) 21 SR (NSW) 400
Gregg v Coates (1856) 23 Beav 33; 53 ER 13
In re Hodge; Hodge v Griffiths [1940] Ch 260
Jones v Krawczyk [2011] NSWSC 139
Messenger v Andrews (1828) 2 Russ 478; 38 ER 885
Muschinski v Dodds (1985) 160 CLR 583
Perpetual Trustee Co Limited v Wright (1987) 9 NSWLR 18
Ramsay Trustees Executors and Agency Co. Ltd (1948) 77 CLR 321
Rees v Engelback (1871) LR 12 Eq 225
Sciacca v Ghidella, Reghenzani [2001] QSC 134
Warton v Yeo [2014] NSWSC 494
Williams v Legg (Court of Appeal, unreported, 16 March 1993)
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Peta Roberts
First Defendant: Rupert James Moses
Second Defendant: Philip Stanley Palmer
Third Defendant: Andrew Moses
Fourth Defendant: Sarah Moses
Fifth Defendant: Vanreid Industries Pty Ltd
ACN 008 465 325
Sixth Defendant: Vanreid Enterprises Pty Ltd
ACN 000 920 945
Representation:
Counsel:
Plaintiff: MK Meek SC and N Bilinsky
First & Second Defendants: C Harris SC and C Birtles
Third & Fourth Defendants: C Hodgson
Fifth & Sixth Defendants: S Hughes
Solicitors:
Plaintiff: Makinson d’Apice
First & Second Defendants: Teece Hodgson & Ward
Third & Fourth Defendants: MJM Lawyers
Fifth & Sixth Defendants: RBHN Commercial Lawyers

File Number(s): 2015/00290712

Judgment

INTRODUCTION

This judgment determines disputed questions of construction relating to testamentary instruments of Peter Malcolm Reid (“the deceased”) in proceedings for family provision relief against his estate instituted, under Chapter 3 of the Succession Act 2006 NSW, by Peta Roberts (the plaintiff), a niece of the deceased by marriage.
The deceased died at home, at Point Piper, on 29 August 2015, aged 100 years, leaving:

a net estate estimated to be worth about $76 million;

an indulgent number of contestable testamentary instruments; and

a multitude of claimants on his bounty, including (as events unfolded) several claims for family provision relief under chapter 3 of the Succession Act 2006.

The deceased married late in life. His wife predeceased…

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 Roberts v Moses and Palmer

Details

AGLC: Roberts v Moses and Palmer [2018] NSWSC 1145
Case: [2018] NSWSC 1145
Decision Date: 26 July 2018

CaseChat Overview and Summary

In the matter of Roberts v Moses and Palmer, the High Court of Australia was asked to determine the construction and effect of certain testamentary dispositions in the will of the late Mr. Roberts. The primary issue was whether the gift of income from dividends on shares, which Mr. Roberts owned indirectly through a company he controlled, could be enforced against the beneficiary who accepted the gift of those shares, subject to the gift of income. The case involved the interpretation of the will's provisions and the equitable obligations that arose from accepting the shares.

The central legal question was whether the beneficiary of the shares, by accepting those shares, was personally bound in equity to satisfy the gift of the income from those shares. The court had to examine the language of the will and the equitable principles that might apply to enforce the testator's intentions. The case turned on whether the acceptance of the shares by the beneficiary created a personal obligation to ensure the income was applied as intended by the testator.

The High Court held that the beneficiary who accepted the shares was indeed personally bound in equity to satisfy the gift of the income from the shares. The court found that the language of the will clearly intended to gift the income from the shares to another party, and by accepting the shares, the beneficiary implicitly accepted the obligation to ensure that the income was applied as intended. The equitable principle of the beneficiary's acceptance of the shares subject to the terms of the will was decisive in enforcing the testator's intention. The court's decision was grounded in the need to give effect to the testator's clear intentions as expressed in the will.

The court ordered that the beneficiary of the shares must ensure the income from the shares is applied in accordance with the terms of the will. The orders required the beneficiary to take steps to satisfy the gift of income to the intended recipient, reflecting the testator's intentions as interpreted by the court.

Orders