Slack-Smith v Slack-Smith & Ors [2009] NSWSC 847

Slack-Smith v Slack-Smith & Ors [2009] NSWSC 847

The gift in clause 5 of Ivan James Slack-Smith’s will of the remainder interest in shares in Corowa Units Pty Limited vested in Ellen Margaret Slack-Smith on the death of the testator and formed part of her estate, notwithstanding she predeceased the life tenant.

Parties
Plaintiff: Alan Richard Slack-Smith; Defendant: Victor John Slack-Smith; Defendant: Thelma Margaret Phelps; Defendant: Phillip Charles Robert Slack-Smith; Defendant: Leah Evelyn Carolan
Jurisdiction
Australia
Judgment Date
19 August 2009
Procedural Posture
Probate Proceeding / Judgment
Outcome
Gift held to be vested.
Legal Topics
Construction of Wills, Probate, Interest Vesting
Wills and Estates Construction of Wills Probate Interest Vesting

Case Brief

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Parties

Alan Richard Slack-Smith

Plaintiff

Victor John Slack-Smith

Defendant

Thelma Margaret Phelps

Defendant

Phillip Charles Robert Slack-Smith

Defendant

Leah Evelyn Carolan

Defendant

Procedural Posture

Probate Proceeding / Judgment

Legal Issues

  1. 1 Whether the remainder interest given in clause 5 of the will vested absolutely or was contingent on surviving the life tenant
  2. 2 If not vested, whether the interest passes under the residuary gift or intestacy

Ratio Decidendi

The gift in clause 5 of Ivan James Slack-Smith’s will of the remainder interest in shares in Corowa Units Pty Limited vested in Ellen Margaret Slack-Smith on the death of the testator and formed part of her estate, notwithstanding she predeceased the life tenant.

Court Disposition

Gift held to be vested.

Orders

  • The gift in clause 5 vested on the death of the deceased so that upon the death of the life tenant the shares will be held for the estate of Ellen Margaret Slack-Smith who predeceased the life tenant.
  • Costs of all parties to be paid out of the estate, those of the second defendant on an indemnity basis.