Walsh, Jennifer-Jane Inez v Walsh, Brian & Ors (As Trustees of the Estate of James Walsh Deceased) & Ors [1998] FCA 647

Walsh, Jennifer-Jane Inez v Walsh, Brian & Ors (As Trustees of the Estate of James Walsh Deceased) & Ors [1998] FCA 647

The will required the income, after the death of David Francis Walsh and until the death of the last of his four children living at the testator's death, to be paid to those identified children in equal shares as tenants in common. Because the testator used language connoting tenancy in common and not survivorship, and because the relevant class referred to the four identified children rather than only those for the time being living, each child's one-quarter share of income continued after that child's death as part of his or her estate until the death of the last surviving child.

Jurisdiction
Australia
Judgment Date
08 May 1998
Procedural Posture
Succession Construction of Will / Appeal From a Judge of the Federal Court of Australia Concerning an Originating Summons Cross Vested From the Supreme Court of Western Australia
Outcome
Appeal allowed.
Legal Topics
['construction of Will' 'gift of Income' 'tenants in Common' 'destination of Income After Death of Beneficiary' 'partial Intestacy']
['succession' 'trusts'] ['construction of Will' 'gift of Income' 'tenants in Common' 'destination of Income After Death of Beneficiary' 'partial Intestacy']

Case Brief

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Procedural Posture

Succession Construction of Will / Appeal From a Judge of the Federal Court of Australia Concerning an Originating Summons Cross Vested From the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether the share of estate income formerly received by David Wilford Walsh after his death and before the death of the last surviving child of David Francis Walsh passed to his estate or to his surviving siblings.' 'How the words "in equal shares as tenants in common" in clauses 7(a)(ii) and 7(b)(ii) of James Walsh\'s will should be construed.']

Ratio Decidendi

The will required the income, after the death of David Francis Walsh and until the death of the last of his four children living at the testator's death, to be paid to those identified children in equal shares as tenants in common. Because the testator used language connoting tenancy in common and not survivorship, and because the relevant class referred to the four identified children rather than only those for the time being living, each child's one-quarter share of income continued after that child's death as part of his or her estate until the death of the last surviving child.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The answers to question 2(a) and 2(c) set out in the Originating Summons that were given by Heerey J be amended so as to read "Yes" and "No" respectively.' 'The costs of all parties be paid out of the estate of the late James Walsh.']