The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97

The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97

The gift over of residue was to five named individuals, not to a class. Because all named beneficiaries except Maxwell Smith predeceased the testator, their shares lapsed. Succession Act 2006, s 42 did not save the gifts because the will was made in 1966 before the relevant commencement. The lapsed 80% of residue therefore passed on partial intestacy: one half to Maxwell's estate and one half to the two daughters of Patricia Maude Earnly in equal shares under Succession Act 2006, s 129.

Jurisdiction
Australia
Judgment Date
16 February 2018
Procedural Posture
Judicial Advice Under Trustee Act 1925, S 63 Concerning Administration of a Deceased Estate / Principal Judgment
Outcome
Judicial advice given.
Legal Topics
['judicial Advice' 'construction of Will' 'class Gift' 'lapse of Residuary Gifts' 'partial Intestacy' 'succession Act 2006, S 129']
['trusts and Trustees' 'succession' 'wills and Estates'] ['judicial Advice' 'construction of Will' 'class Gift' 'lapse of Residuary Gifts' 'partial Intestacy' 'succession Act 2006, S 129']

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Procedural Posture

Judicial Advice Under Trustee Act 1925, S 63 Concerning Administration of a Deceased Estate / Principal Judgment

Legal Issues

  1. 1 ['Whether the gift of residue under the will was a class gift or a gift to five named individuals.' 'If the residuary gift partially lapsed, who was entitled upon the partial intestacy and in what proportions.']

Ratio Decidendi

The gift over of residue was to five named individuals, not to a class. Because all named beneficiaries except Maxwell Smith predeceased the testator, their shares lapsed. Succession Act 2006, s 42 did not save the gifts because the will was made in 1966 before the relevant commencement. The lapsed 80% of residue therefore passed on partial intestacy: one half to Maxwell's estate and one half to the two daughters of Patricia Maude Earnly in equal shares under Succession Act 2006, s 129.

Court Disposition

Judicial advice given.

Orders

  • ["The Court advises that the plaintiff would be justified in distributing the testator's estate on the basis that 80% of the gift of residue lapses and that half of the gifts so lapsing will pass upon intestacy to the estate of the testator's brother Maxwell, and the other half will pass upon intestacy to the...