Fairbairn v Varvaressos [2010] NSWCA 234

Fairbairn v Varvaressos [2010] NSWCA 234

On proper construction of the will, the interest in remainder under clause 5(a)(i) vested in Demetrius and Iris at the testator's death, subject to defeasance; their contingent remainders passed to their estates upon their deaths and would mature into vested interests if Kitty died childless. The gift was not a legacy limited to those surviving Kitty, nor did it lapse by their predeceasing Kitty. The appeal is dismissed and the trial judge’s orders upheld.

Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['construction of Will' 'vesting of Gifts' 'contingent and Vested Remainders' 'presumption Against Intestacy']
['wills & Estates' 'real Property'] ['construction of Will' 'vesting of Gifts' 'contingent and Vested Remainders' 'presumption Against Intestacy']

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court Equity Division

Legal Issues

  1. 1 ["Whether clause 5(a)(i) of the testator's will operated to cause the remainder consequent on child K's (Kitty’s) death to vest in interest in Demetrius and Iris from the date of the testator's death, subject to defeasance if K died leaving one child above the age of 21; or whether Demetrius and Iris's interest only arose if they survived Kitty."]

Ratio Decidendi

On proper construction of the will, the interest in remainder under clause 5(a)(i) vested in Demetrius and Iris at the testator's death, subject to defeasance; their contingent remainders passed to their estates upon their deaths and would mature into vested interests if Kitty died childless. The gift was not a legacy limited to those surviving Kitty, nor did it lapse by their predeceasing Kitty. The appeal is dismissed and the trial judge’s orders upheld.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs, including any costs arising from the Amended Notice of Appeal.']