Straughen-Nicholson v Straughen - [2019] NSWSC 1389

Supreme Court

New South Wales

Medium Neutral Citation: Straughen-Nicholson v Straughen [2019] NSWSC 1389
Hearing dates: On the papers
Date of orders: 15 October 2019
Decision date: 15 October 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Declare that on the true construction of the last Will dated 22 August 2014 of the late Roy Straughen, who died on 13 April 2019, and pursuant to the operation of s 41(2) of the Succession Act 2006 (NSW), the plaintiff (Emma Straughen-Nicholson), as the only issue of Karen Anne Straughen who died between 17 and 18 January 2019, takes the share of Karen Anne Straughen, under cll 5, 6 and 7 of the Will.
2. Subject to any application made as to costs within 14 days, there be no order as to costs.

Catchwords: CIVIL PROCEDURE — Probate and administration of estates — determination as to Construction of Will – s 41 of the Succession Act 2006 (NSW) – where named beneficiary dies leaving only one issue – whether the issue is entitled to the beneficiaries portion of the estate
Legislation Cited: Succession Act 2006 (NSW), s 41
Category: Principal judgment
Parties: Emma Jade Straughen-Nicholson (Plaintiff)
Vikki Patricia Straughen (Defendant)
Representation:
Counsel:
Mr K Morrissey (Plaintiff)
Ms M Odtojan (Defendant)
Solicitors:
Turnbull Kasif Lawyers (Plaintiff)
Odtojan & Associates (Defendant

File Number(s): 2019/00244202
Publication restriction: Nil

Judgment

HER HONOUR: In this matter, by summons filed 6 August 2019, the plaintiff (Ms Emma Straughen-Nicholson) seeks a determination as to the construction of the last Will dated 22 August 2014 of the late Mr Roy Straughen (the deceased). The executor of the deceased’s estate (Ms Vikki Straughen), who is one of the three named beneficiaries, has filed a submitting appearance. The other surviving beneficiary (Mr Rodney Straughen) was notified of the application and does not seek to be heard on the application.

Background

The deceased died on 3 April 2019. He was survived by two of his adult children, Rodney Straughen and Vikki Straughen. The third of the deceased’s three children, Karen Straughen (the mother of the plaintiff), predeceased him. Her death occurred between 17 and 18 January 2019. The cause of her death has not been established. Karen Straughen never married, and her only issue was Emma Straughen-Nicholson, the plaintiff.
By his last Will, the deceased appointed Vikki Straughen as executor and, by cll 5, 6, and 7, left his whole estate, including real property at Lalor Park and residue, to:

… my children, RODNEY NORMAN STRAUGHEN, KAREN ANNE STRAUGHEN, VIKKI PATRICIA STRAUGHEN, as tenants in common in equal shares.

When the matter was before me for directions in the applications list, Counsel for the respective parties agreed that the matter would be determined on the papers without the need for oral argument. Accordingly, I have proceeded on that basis, having taken into account the affidavit sworn 2 September 2019 by Vikki Straughen and the brief written submissions filed on this application on behalf of the plaintiff.

Relevant provision

Section 41…

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 Straughen-Nicholson v Straughen

Details

AGLC: Straughen-Nicholson v Straughen [2019] NSWSC 1389
Case: [2019] NSWSC 1389
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case of Straughen-Nicholson v Straughen was heard in the Supreme Court of New South Wales. The dispute centred around the interpretation of a will, specifically concerning the distribution of an estate upon the death of a named beneficiary who left only one issue. The will provided that in the event of the beneficiary's death, their portion of the estate would pass to their issue. The issue was whether the sole issue of the deceased beneficiary was entitled to the full share of the estate that would have been allocated to the beneficiary if they had survived.

The court was tasked with determining whether the statutory provisions under section 41 of the Succession Act 2006 (NSW) applied, which allow for the substitution of beneficiaries upon the death of the primary beneficiary. The central question was whether the term "issue" in the will referred to all descendants of the deceased beneficiary, or only to the direct lineal descendants. The court had to interpret the will in light of the statutory framework and the circumstances of the case.

In reaching its decision, the court considered the wording of the will, the statutory provisions, and the intention of the testator. The court concluded that the term "issue" should be interpreted to include all descendants of the deceased beneficiary, not just direct lineal descendants. This interpretation was consistent with the statutory provisions and the testator's intention to ensure that the estate was distributed among the deceased beneficiary's descendants. The court therefore held that the sole issue of the deceased beneficiary was entitled to the full share of the estate that would have been allocated to the beneficiary if they had survived.

The final orders of the court recognised the sole issue of the deceased beneficiary as the rightful recipient of the portion of the estate that would have been theirs had they survived. The court's decision provided clarity on the interpretation of the will in light of the statutory provisions and ensured that the estate was distributed in accordance with the testator's intentions.

Orders