Napper v Miller [2002] NSWSC 1122

Napper v Miller [2002] NSWSC 1122

The Court was presently of the view that cl 4(a) was more likely to include children of the plaintiff born after the testatrix's death who attain twenty five, because the will showed imprecise use of the word "survive" and the surrounding circumstances made exclusion of postnates unlikely. However, the infants Juliette and Isabelle had not been properly represented, so the judgment was interim. The class closing rule appeared to apply separately to each half share of the estate, so the class would close when the first grandchild in the relevant moiety attained twenty five and grandchildren born thereafter would not take.

Jurisdiction
Australia
Judgment Date
18 November 2002
Procedural Posture
Equity Suit Concerning Construction of a Will and Representative Orders / Hearing of Summons in the Short Notice List; Interim Judgment With Matter Stood Over
Outcome
Interim view expressed; matter stood over.
Legal Topics
['construction of Will' 'gift to Grandchildren' 'postnates' 'meaning of "survive"' 'representative Orders for Infants and Unborn Children' 'class Closing Rules' 'perpetuities']
['succession' 'civil Procedure' 'equity'] ['construction of Will' 'gift to Grandchildren' 'postnates' 'meaning of "survive"' 'representative Orders for Infants and Unborn Children' 'class Closing Rules' 'perpetuities']

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Procedural Posture

Equity Suit Concerning Construction of a Will and Representative Orders / Hearing of Summons in the Short Notice List; Interim Judgment With Matter Stood Over

Legal Issues

  1. 1 ['Whether cl 4(a) of the will extended to children of the plaintiff born after the death of the testatrix who attain the age of twenty five years.' "Whether the plaintiff's wife could represent unborn children in the proceedings." 'Whether Juliette Napper and Isabelle Napper had been properly represented as infants whose interests were affected.' 'Whether class closing rules limited the grandchildren who could take under cl 4 of the will.']

Ratio Decidendi

The Court was presently of the view that cl 4(a) was more likely to include children of the plaintiff born after the testatrix's death who attain twenty five, because the will showed imprecise use of the word "survive" and the surrounding circumstances made exclusion of postnates unlikely. However, the infants Juliette and Isabelle had not been properly represented, so the judgment was interim. The class closing rule appeared to apply separately to each half share of the estate, so the class would close when the first grandchild in the relevant moiety attained twenty five and grandchildren born thereafter would not take.

Court Disposition

Interim view expressed; matter stood over.

Orders

  • ['Matter stood over before Young CJ in Eq at 10 am on 20 December, with liberty to apply in chambers to alter that date.']