Application of Marais [2009] NSWSC 206

Application of Marais [2009] NSWSC 206

The phrase 'my remaining relatives' in the will is not void for uncertainty and should be construed as referring to those persons who would take under intestacy. Distribution among such persons is per capita, and a Benjamin order is appropriate to permit distribution to those presently identified (Francis Leo and Michael), subject to the rights of any other members of the class who may later be identified.

Jurisdiction
Australia
Judgment Date
16 February 2009
Procedural Posture
Judicial Advice Application (succession/probate) / Ex Tempore Judgment on Summons for Judicial Advice
Outcome
Order made giving judicial advice and Benjamin order; plaintiff's costs from estate on indemnity basis.
Legal Topics
['construction and Effect of Testamentary Dispositions' 'judicial Advice' "meaning of 'my Remaining Relatives'" 'void for Uncertainty' 'distribution on Intestacy' 'distribution Per Capita Vs Per Stirpes' 'benjamin Order']
['succession Law' 'wills and Probate'] ['construction and Effect of Testamentary Dispositions' 'judicial Advice' "meaning of 'my Remaining Relatives'" 'void for Uncertainty' 'distribution on Intestacy' 'distribution Per Capita Vs Per Stirpes' 'benjamin Order']

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Procedural Posture

Judicial Advice Application (succession/probate) / Ex Tempore Judgment on Summons for Judicial Advice

Legal Issues

  1. 1 ["What is the proper construction of the phrase 'my remaining relatives' in the will?" "Is the gift to 'my remaining relatives' void for uncertainty?" "Who are the persons entitled as 'my remaining relatives'?" 'What is the manner of distribution among such persons: per stirpes or per capita?' 'Should a Benjamin order be made?']

Ratio Decidendi

The phrase 'my remaining relatives' in the will is not void for uncertainty and should be construed as referring to those persons who would take under intestacy. Distribution among such persons is per capita, and a Benjamin order is appropriate to permit distribution to those presently identified (Francis Leo and Michael), subject to the rights of any other members of the class who may later be identified.

Court Disposition

Order made giving judicial advice and Benjamin order; plaintiff's costs from estate on indemnity basis.

Orders

  • ['The Court gives its opinion, advice and direction on the questions posed, including: (a) No; (b) Yes; (c) Yes; (d) No; (e) No other steps to be taken by the Plaintiff executor; (f) No other person need presently be joined as a Defendant.' 'Liberty to apply reserved.' "Plaintiff's costs to be paid out of the estate...