Abernethy v Simpson [2007] NSWSC 186

Abernethy v Simpson [2007] NSWSC 186

On construction, the phrase 'such interest as I may have at the time of my death in the estate of my late father' is to be understood as referring to property derived from the grandfather’s estate which remained identifiable in specie at the testator's death. The real property, still identifiable, passes to the plaintiff in accordance with the will. Extrinsic evidence as to the testator's intention is inadmissible as there is no ambiguity or misdescription. The doctrine of ademption does not prevent the gift because the property remained in specie and distinguishable from other assets at the time of death.

Parties
Plaintiff: Daniel Robert James Abernethy; Defendant: Margaret Anne Simpson; Defendant: Peter Grant; Defendant: Maria Veronica Muir
Jurisdiction
Australia
Judgment Date
08 March 2007
Procedural Posture
Equity Proceedings—construction of Will / Judgment on Separate Question Concerning Construction of Will; Family Provision Act Matter Postponed
Outcome
Declaration made in favour of plaintiff’s construction; property passes to plaintiff as per will clause 3.
Legal Topics
Will Construction, Doctrine of Ademption, Testamentary Gifts, Interest in Estate, Admissibility of Extrinsic Evidence
Succession Law Equity Will Construction Doctrine of Ademption Testamentary Gifts Interest in Estate Admissibility of Extrinsic Evidence

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Parties

Daniel Robert James Abernethy

Plaintiff

Margaret Anne Simpson

Defendant

Peter Grant

Defendant

Maria Veronica Muir

Defendant

Procedural Posture

Equity Proceedings—construction of Will / Judgment on Separate Question Concerning Construction of Will; Family Provision Act Matter Postponed

Legal Issues

  1. 1 Whether the gift of 'such interest as I may have at the time of my death in the estate of my late father' under Colin Charles Abernethy's will passes the real property inherited from his father's estate to the plaintiff; Whether extrinsic evidence (solicitor's file note) is admissible to clarify the testator's intention; Application of the doctrine of ademption to distributed assets

Ratio Decidendi

On construction, the phrase 'such interest as I may have at the time of my death in the estate of my late father' is to be understood as referring to property derived from the grandfather’s estate which remained identifiable in specie at the testator's death. The real property, still identifiable, passes to the plaintiff in accordance with the will. Extrinsic evidence as to the testator's intention is inadmissible as there is no ambiguity or misdescription. The doctrine of ademption does not prevent the gift because the property remained in specie and distinguishable from other assets at the time of death.

Court Disposition

Declaration made in favour of plaintiff’s construction; property passes to plaintiff as per will clause 3.

Orders

  • Declaration 1 made as asked in the amended summons of 12 May 2006
  • Remainder of proceedings stood over for mention on 20 March 2007 for directions