Wentworth v Wentworth

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Wentworth v Wentworth & Ors [2000]  NSWCA 350 revised - 26/04/2007

FILE NUMBER(S):
40714/99

HEARING DATE(S):               7 November 2000

JUDGMENT DATE: 15/12/2000

PARTIES:
Katherine Wentworth (Appellant)
Peter Fitzwilliam Neville Wentworth (Executor of the Estate of the Late G N Wentworth) (1st Respondent)
Laurie Glanfield (2nd Respondent)
Ian Hill (3rd Respondent)
Attorney-General in and for the State of New South Wales (amicus curiae)

JUDGMENT OF:       Fitzgerald JA Heydon JA Davies AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          ED 3748/89

LOWER COURT JUDICIAL OFFICER:     Santow J and Hunter J

COUNSEL:
Miss K Wentworth in person (Appellant)
No appearance for the 1st Respondent
Mr P Lakatos (2nd and 3rd Respondents)
Ms N Abadee (Attorney-General)

SOLICITORS:
Miss K Wentworth in person (Appellant)
No appearance for the 1st Respondent
I V Knight, Crown Solicitor (2nd and 3rd Respondents)

CATCHWORDS:

LEGISLATION CITED:
Family Provision Act 1982
Judiciary Act 1903 (Cth)
Legal Profession Act 1987
Legal Profession Reform Act 1993
Racial Discrimination Act 1975 (Cth)
Supreme Court Act 1970

DECISION:
See paragraph 270

JUDGMENT:

CASES CITED:

Aiden Shipping Co Ltd v Interbulk Ltd (1986) 1 AC 965
Anderson v Gorrie [1895] 1 QB 668
Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38
Attorney-General (Cth) v Breckler (1999) 163 ALR 576
Attorney-General v Kennedy Miller Pty Ltd (unreported, Court of Appeal, 31 May 1999)
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Cabassi v Villa (1940) 64 CLR 130
Cannings Ltd v County Council of Middlesex (1907) 1 KB 51
Chappuis v Filo (1990) 19 NSWLR 490
Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49
Commonwealth of Australia v Introvigne (1982) 150 CLR 258
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1
Cummins v McKenzie [1979] 2 NSWLR 803
DMW v CGW (1982) 151 CLR 491
El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596
Ex p Blume; re Osborn (1958) 75 WN (NSW) 411
Ex p McQuellin (1929) 29 SR (NSW) 346
Floyd v Barker (1607) 12 Co Rep 23
Fray v Blackburn (1863) 3 B & S 576
Freeman v Trimble (1906) 6 SR 133
Galea v Galea (1990) 19 NSWLR 263
Gallo v Dawson (1988) 82 ALR 401
Garnett v Ferrand (1827) 6 B & C 611
Grassby v R (1989) 168 CLR 1
Harrington v Lowe (1996) 190 CLR 311
Harris v Caladine (1991) 172 CLR 84
Hill v Van Erp (1997) 188 CLR 159
Horne v Leigh (1906) 7 SR 51
In re McC (A Minor) [1985] AC 528
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Laboudis v Carey (1990) 170 CLR 534
Leicester v Walton (unreported, New South Wales Court of Appeal, 22 November 1995)
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Re McMillan (1905) 5 SR 350
Mann v O'Neill…

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Details
Case
[2000] NSWCA 350
Decision Date

CaseChat Overview and Summary

The case of *Wentworth v Wentworth* concerned a dispute between the executor of the estate of the late Mr. Wentworth and his widow, Mrs. Wentworth. The executor sought directions from the Supreme Court of New South Wales regarding the proper construction and effect of certain provisions within Mr. Wentworth's will, particularly in relation to the distribution of his estate and the validity of certain bequests. Mrs. Wentworth was a party to these proceedings, having an interest in the estate.

The primary legal issues before the Court were: (1) the interpretation of specific clauses in the will concerning the disposition of various assets, including real property and shares; (2) the validity of a charitable bequest made to an organisation that may have ceased to exist or changed its name; and (3) the extent to which the executor had the power to sell certain assets to satisfy the terms of the will and pay any outstanding debts or taxes. The Court was also asked to consider the application of the *Family Provision Act 1982* (NSW) in light of the will's provisions.

The Court's reasoning involved a detailed analysis of the language used in the will, applying established principles of testamentary construction. It considered extrinsic evidence where permissible to ascertain the testator's intentions, particularly in relation to the charitable bequest. The Court examined the legal status of the named charity and the principles governing the cy-près doctrine. Furthermore, the Court considered the executor's duties and powers under general law and relevant legislation, including the *Supreme Court Act 1970* (NSW), in managing and distributing the estate.

The Court made specific declarations regarding the construction of the will, clarifying the beneficiaries' entitlements and the executor's powers. Orders were made concerning the charitable bequest, including directions for the executor to investigate the current status of the intended beneficiary and, if necessary, to seek further directions from the Court regarding the application of the funds. The Court also provided guidance on the executor's authority to sell assets to meet estate liabilities.

Orders

Orders of the court

See paragraph 270

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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