The Estate of Nicholas Paul Enright [2017] NSWSC 1646

The Estate of Nicholas Paul Enright [2017] NSWSC 1646

On the proper construction of the Will as a whole, clause 7 established a separate scheme for the Literary Estate. Clause 3 appointed the general executors and trustees expressly subject to clause 7, clause 7 dealt exclusively with the Literary Estate, the appointment of David Marr as Literary Executor would have little purpose if confined to consultation about a literary agent, and clause 7.6 contemplated costs and expenses of the Literary Executor. Taking these matters together, the appointment carried the necessary and legitimate implication that the testator intended David Marr to be executor of the Literary Estate, namely the copyright and intellectual property in the testator's...

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Equity Proceedings Concerning Construction of a Will and Administration of an Estate / Separate Determination of Preliminary Questions Pursuant to Uniform Civil Procedure Rules 2005 (nsw) R 28.2
Outcome
Preliminary questions 1 and 2 answered yes; question 3 did not arise; the matter was to proceed to a hearing.
Legal Topics
['construction of Will' 'literary Executor' 'limited Grant of Probate' 'estate Administration' "copyright and Intellectual Property in Deceased's Works"]
['equity' 'succession' 'probate' 'intellectual Property'] ['construction of Will' 'literary Executor' 'limited Grant of Probate' 'estate Administration' "copyright and Intellectual Property in Deceased's Works"]

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Procedural Posture

Equity Proceedings Concerning Construction of a Will and Administration of an Estate / Separate Determination of Preliminary Questions Pursuant to Uniform Civil Procedure Rules 2005 (nsw) R 28.2

Legal Issues

  1. 1 ['Whether, on the proper construction of the Will, clause 7.3 appointed David Marr as an Executor within the meaning of s 41 of the Probate and Administration Act 1898 (NSW).' "If clause 7.3 appointed David Marr as an Executor, whether the property the subject of that appointment included the copyright and other intellectual property in the deceased's works described in clause 7.4." 'If clause 7.3 did not appoint David Marr as an Executor, whether he had standing as literary executor to ensure the proper administration of the Literary Estate by the executors named in clause 3.']

Ratio Decidendi

On the proper construction of the Will as a whole, clause 7 established a separate scheme for the Literary Estate. Clause 3 appointed the general executors and trustees expressly subject to clause 7, clause 7 dealt exclusively with the Literary Estate, the appointment of David Marr as Literary Executor would have little purpose if confined to consultation about a literary agent, and clause 7.6 contemplated costs and expenses of the Literary Executor. Taking these matters together, the appointment carried the necessary and legitimate implication that the testator intended David Marr to be executor of the Literary Estate, namely the copyright and intellectual property in the testator's...

Court Disposition

Preliminary questions 1 and 2 answered yes; question 3 did not arise; the matter was to proceed to a hearing.

Orders

  • ['The answer to question 1 is yes.' 'The answer to question 2 is yes.' 'Question 3 does not arise.' 'The matter should proceed to a hearing.' 'Counsel were to be given an opportunity to address the Court on costs.']