Sharp v McMahon [2003] NSWSC 891

Sharp v McMahon [2003] NSWSC 891

Clause 21 operated because Patrick McMahon predeceased the testatrix leaving children who were alive at the testatrix's death. Those surviving children formed the class entitled to take equally the whole share Patrick would have taken had he survived for 30 days. Anthony John McMahon, having predeceased the testatrix, could not take, his estate could not take, and his children did not take because the will made no further gift to issue and there was no intestacy.

Jurisdiction
Australia
Judgment Date
01 August 2003
Procedural Posture
Wills Probate and Administration: Construction of Will / Determination of a Question Arising Under the Will After Probate Was Granted to the Plaintiffs
Outcome
The share in residue which would have passed to Patrick McMahon had he survived the testatrix for 30 days passes in equal shares to such of Patrick McMahon's children as were living at the death of the testatrix.
Legal Topics
['construction of Will' 'residue of Estate' 'class Gift' 'survivorship' 'intestacy']
['wills Probate and Administration' 'equity'] ['construction of Will' 'residue of Estate' 'class Gift' 'survivorship' 'intestacy']

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Procedural Posture

Wills Probate and Administration: Construction of Will / Determination of a Question Arising Under the Will After Probate Was Granted to the Plaintiffs

Legal Issues

  1. 1 ["On the true construction of clause 21 of Mary Margaret McMahon's will, how the seven fifteenths share in residue which would have gone to Patrick McMahon had he survived the testatrix should be distributed." "Whether any part of Anthony John McMahon's putative share passed to his estate or children, or fell into intestacy."]

Ratio Decidendi

Clause 21 operated because Patrick McMahon predeceased the testatrix leaving children who were alive at the testatrix's death. Those surviving children formed the class entitled to take equally the whole share Patrick would have taken had he survived for 30 days. Anthony John McMahon, having predeceased the testatrix, could not take, his estate could not take, and his children did not take because the will made no further gift to issue and there was no intestacy.

Court Disposition

The share in residue which would have passed to Patrick McMahon had he survived the testatrix for 30 days passes in equal shares to such of Patrick McMahon's children as were living at the death of the testatrix.

Orders

  • ['On the true construction of the will of Mary Margaret McMahon deceased dated 3 December 1984 and in the events which have happened, the share in residue which would have passed to Patrick McMahon had he survived the testatrix for 30 days passes in equal shares to such of the children of the said Patrick McMahon as...