Singer v United Israel Appeal Refugee Relief Fund & Ors [2013] NSWSC 1035

Singer v United Israel Appeal Refugee Relief Fund & Ors [2013] NSWSC 1035

Clause 3 merely directed the executors to perform their ordinary administrative duty to pay debts and expenses and did not state any different order or apportionment, so it did not displace s 46C(2) and Part 2 of the Third Schedule. The cl 4(j) gift of net proceeds of a specified property would have failed if that property had been disposed of during the testator's lifetime and was therefore a specific gift within Class 6, not a Class 5 pecuniary legacy. The cl 4(t)(iii) gift to Demilla Gonda was a pecuniary legacy because it was a monetary gift not payable from any specific fund. The forfeiture condition attached to Robert Lawrence Gonda's gift was void because its object and effect was...

Jurisdiction
Australia
Judgment Date
23 July 2013
Procedural Posture
Succession; Construction of Will; Probate and Administration / Executors' Summons for Determinations and Declarations in the Equity Division
Outcome
Declarations made on the construction of the will; costs ordered out of the estate.
Legal Topics
['construction and Effect of Testamentary Dispositions' 'application of Estate Assets to Debts, Funeral, Testamentary and Administration Expenses' 'pecuniary Legacies and Specific Gifts' 'family Provision Proceedings' 'conditions in Wills Contrary to Public Policy']
['succession' 'wills, Probate and Administration' 'equity'] ['construction and Effect of Testamentary Dispositions' 'application of Estate Assets to Debts, Funeral, Testamentary and Administration Expenses' 'pecuniary Legacies and Specific Gifts' 'family Provision Proceedings' 'conditions in Wills Contrary to Public Policy']

Case Brief

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Procedural Posture

Succession; Construction of Will; Probate and Administration / Executors' Summons for Determinations and Declarations in the Equity Division

Legal Issues

  1. 1 ['Whether cl 3 of the will displaced s 46C(2) of the Probate and Administration Act 1898 and Part 2 of the Third Schedule to that Act.' 'Whether the gift in cl 4(j) to The Emanuel School and Sir Moses Montefiore Home was a pecuniary legacy within Class 5 or a gift of an asset specifically disposed of within Class 6 of Part 2 of the Third Schedule.' 'Whether the gift in cl 4(t)(iii) to Demilla Gonda was a pecuniary legacy within Class 5 of Part 2 of the Third Schedule.' 'Whether the condition attached to the gift to Robert Lawrence Gonda in cl 4(m), and the condition contained in cl 6, were void as being against public policy.']

Ratio Decidendi

Clause 3 merely directed the executors to perform their ordinary administrative duty to pay debts and expenses and did not state any different order or apportionment, so it did not displace s 46C(2) and Part 2 of the Third Schedule. The cl 4(j) gift of net proceeds of a specified property would have failed if that property had been disposed of during the testator's lifetime and was therefore a specific gift within Class 6, not a Class 5 pecuniary legacy. The cl 4(t)(iii) gift to Demilla Gonda was a pecuniary legacy because it was a monetary gift not payable from any specific fund. The forfeiture condition attached to Robert Lawrence Gonda's gift was void because its object and effect was...

Court Disposition

Declarations made on the construction of the will; costs ordered out of the estate.

Orders

  • ['Declare that on the true construction of the will dated 21 December 2010 of Ivan John Gonda, late of Darling Point, New South Wales, and in the events that have happened, the terms of cl 3 of the said will do not operate to displace the provisions of s 46C(2) of the Probate and Administration Act 1898, and Part 2...