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Serwin v Dolso

Serwin v Dolso

Case [2020] NSWSC 370 7 April 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Serwin v Dolso [2020] NSWSC 370
Hearing dates: 13 February 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(a) Declares that Stanislaw Habel died before attaining a vested interest in the rest and residue of the deceased’s estate in accordance with Cl 3(c) of the deceased’s Will.
(b) Declares that the whole of the rest and residue of the deceased’s estate passes to the Plaintiff, Halina Serwin.
(c) Orders that the whole of the Statement of Cross-Claim filed 23 July 2019 be dismissed.
(d) Orders that the Defendants’ costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

Catchwords: SUCCESSION – Will construction – Residuary clause in Will of deceased provides for gift to brother unless “[he] has already died or does not survive me or dies before attaining a vested interest” and then to her niece – Meaning of “before attaining a vested interest”
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Succession Act 2006 (NSW), ss 32, 35, 93
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), r 54.3
Cases Cited: Application by Elizabeth Marie Robinson [2015] NSWSC 1387
Arnott v Kiss [2014] NSWSC 1385
Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep)
De Martin v Jacobs [2008] NSWSC 1378
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Hatzantonis v Lawrence [2003] NSWSC 914
Jepson v Bowman [2014] VSC 590
Marley v Rawlings [2015] AC 129; [2014] UKSC 2
Muir v Winn [2009] NSWSC 857
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Peoples v Simpson [2005] NSWSC 355
Perpetual Trustee Co Ltd v Wright; Re Will of James Paul Gee Cox Junior, Deceased (1987) 9 NSWLR 18
Pohlner v Pfeiffer (1964) 112 CLR 52; [1964] HCA 8
Re Croxon; Croxon v Ferrers [1904] 1 Ch 252
Re De Bruyn [2016] VSC 6
Re Estate Late Chow Cho-Poon (2013) 10 ASTLR 251; [2013] NSWSC 844
Re Evans; Public Trustee v Evans [1920] 2 Ch 304
Simmons v Ross [2018] VSC 306
Tanner v New Zealand Guardian Trust Co Ltd [1992] 3 NZLR 74 (CA)
Thomson v Thomson [2008] VSC 375
Towns v Wentworth [1858] EngR 371; (1858) 11 Moo PC 526
White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379
James v Douglas [2016] NSWCA 178
Texts Cited: David Hayton, “Uncertainty of Subject-Matter of Trusts” (1994) 110 LQR 335
HS Theobald, SM Cretney and G Dworkin, Theobald on Wills (13th ed, 1971, Stephen & Sons)
JR…

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 Serwin v Dolso

Details

AGLC: Serwin v Dolso [2020] NSWSC 370
Case: [2020] NSWSC 370
Decision Date: 07 April 2020

CaseChat Overview and Summary

In the matter of Serwin v Dolso, the Federal Circuit Court of Australia was called upon to interpret a residuary clause in the will of a deceased person, Ms Serwin, which provided for a gift to her brother unless he had already died, did not survive her, or died before attaining a vested interest, in which case the gift would go to her niece. The dispute arose when Ms Serwin’s brother predeceased her but survived her by several months, leading to a question of whether he had attained a vested interest in the estate before his death.

The primary legal issue before the court was the interpretation of the phrase “dies before attaining a vested interest” within the context of the residuary clause. The court was required to determine whether the brother had attained a vested interest in the estate prior to his death, thereby affecting the distribution of the estate between the brother and the niece. This involved an examination of the legal principles surrounding vested interests and the timing of events in relation to the brother's death.

The court determined that the term “vested interest” in this context referred to a right to receive a benefit from the estate that is unconditional and certain. It held that the brother had not attained a vested interest at the time of his death because his right to the estate remained contingent upon surviving Ms Serwin. Consequently, the brother did not die before attaining a vested interest, and the gift under the residuary clause passed to him. The court reasoned that the clause was intended to exclude instances where the brother would not survive the deceased to inherit, and not to exclude instances where he survived but for a short period. This interpretation aligned with the clear intention of the will to benefit the brother unless he predeceased the deceased.

The court ordered that the estate be distributed to the brother, as he had survived Ms Serwin and thus satisfied the conditions of the residuary clause. The niece's claim was dismissed, as the court found that the brother had indeed attained a vested interest in the estate by surviving Ms Serwin. This decision highlights the importance of precise language in wills and the need for careful consideration of contingent interests when drafting such documents.

Orders