Arnott v Leong [2009] NSWSC 187

Arnott v Leong [2009] NSWSC 187

The words "if more than one" in clause 3(b) should be given effect and indicated that the testator had turned his mind to the possibility that only one of the two named residuary beneficiaries would take; if there were not two, the whole residue was to pass to the one who could take. The presumption against intestacy supported that construction. Alternatively, those words showed an intention to treat the two residuary beneficiaries as a class or group, so that Sue Austin's disclaimed share passed to Stephen Leong rather than on intestacy.

Jurisdiction
Australia
Judgment Date
24 March 2009
Procedural Posture
Equity Proceeding Concerning Construction of a Residuary Gift in a Will / Principal Judgment
Outcome
Sue Austin's disclaimed share of the residuary estate passed to Stephen Leong, not on intestacy.
Legal Topics
['construction of Testamentary Dispositions' 'residuary Gifts' 'disclaimer by Beneficiary' 'class Gifts' 'partial Intestacy' 'presumption Against Intestacy']
['succession' 'wills, Probate and Administration'] ['construction of Testamentary Dispositions' 'residuary Gifts' 'disclaimer by Beneficiary' 'class Gifts' 'partial Intestacy' 'presumption Against Intestacy']

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Procedural Posture

Equity Proceeding Concerning Construction of a Residuary Gift in a Will / Principal Judgment

Legal Issues

  1. 1 ['Whether, one of two residuary beneficiaries having disclaimed her interest, her half share in residue passed to the other residuary beneficiary or whether there was an intestacy as to the disclaimed half share.' 'Whether the words "if more than one in equal shares as tenants in common" indicated an intention that if only one of the two named residuary beneficiaries could take, that person would take the whole residue.' 'Whether the residuary gift to Sue Austin and Stephen Leong should be treated as a class or group gift so that the failure of the gift to one beneficiary augmented the share of the other.']

Ratio Decidendi

The words "if more than one" in clause 3(b) should be given effect and indicated that the testator had turned his mind to the possibility that only one of the two named residuary beneficiaries would take; if there were not two, the whole residue was to pass to the one who could take. The presumption against intestacy supported that construction. Alternatively, those words showed an intention to treat the two residuary beneficiaries as a class or group, so that Sue Austin's disclaimed share passed to Stephen Leong rather than on intestacy.

Court Disposition

Sue Austin's disclaimed share of the residuary estate passed to Stephen Leong, not on intestacy.

Orders

  • ['Short minutes should be brought in to give effect to the conclusion and any question of costs can be raised at that stage.']