Fisher v Fisher [2007] NSWSC 1526

Fisher v Fisher [2007] NSWSC 1526

The defendants were not entitled to take under cl 3 because Edmund Sydney Fisher died before the will was made and would not have taken any share under the gift to the testatrix's children who survived her; accordingly there was no share which his children could take by way of substitution.

Jurisdiction
Australia
Judgment Date
27 August 2007
Procedural Posture
Will Construction in the Equity Division Probate List / Ex Tempore Judgment on Summons
Outcome
Will construction - no right to take as substituted beneficiaries; paragraph 1 of the summons answered "no".
Legal Topics
['construction of Will' 'residuary Gift to Children Who Survive Testatrix' 'substitutionary Gifts to Grandchildren' 'child Predeceasing Date of Will']
['wills, Probate and Administration'] ['construction of Will' 'residuary Gift to Children Who Survive Testatrix' 'substitutionary Gifts to Grandchildren' 'child Predeceasing Date of Will']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Will Construction in the Equity Division Probate List / Ex Tempore Judgment on Summons

Legal Issues

  1. 1 ['Whether the defendants, as children of Edmund Sydney Fisher, were entitled to take equally between them a one quarter share in the estate of their grandmother under the substitution clause in cl 3 of the will.' 'Whether a substitutionary gift applied where the relevant child of the testatrix had died before the will was made and therefore would not have taken under the primary gift.']

Ratio Decidendi

The defendants were not entitled to take under cl 3 because Edmund Sydney Fisher died before the will was made and would not have taken any share under the gift to the testatrix's children who survived her; accordingly there was no share which his children could take by way of substitution.

Court Disposition

Will construction - no right to take as substituted beneficiaries; paragraph 1 of the summons answered "no".

Orders

  • ['Answer para 1 of the summons "no".' 'Order the costs of the parties be paid out of the estate, those of the plaintiff on the indemnity basis.']