Hay v Aynsley [2013] NSWSC 1689

Hay v Aynsley [2013] NSWSC 1689

The gift of 64 Bayview Street, Soldiers Point to David Ronald Brook in clause 8 of the Will has adeemed due to its sale under an enduring power of attorney and does not pass to his issue. The proceeds of sale and accrued interest fall into the residuary estate, to be divided under clause 10 of the Will without adjustment by clauses 28-30.

Parties
Plaintiff: Louise Anne Hay; First Defendant: David Jesse Aynsley; Second Defendant: Peter John Brook; Third Defendant: Timothy John Brook; Fourth Defendant: Lisa Marie Brook; Fifth Defendant: Gregory David Brook
Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Probate Proceedings / Final Judgment
Outcome
Declaration and costs order
Legal Topics
Construction of Will, Ademption of Gifts, Probate Administration
Wills and Estates Equity Construction of Will Ademption of Gifts Probate Administration

Case Brief

Summary, issues, holding and outcome

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Parties

Louise Anne Hay

Plaintiff

David Jesse Aynsley

First Defendant

Peter John Brook

Second Defendant

Timothy John Brook

Third Defendant

Lisa Marie Brook

Fourth Defendant

Gregory David Brook

Fifth Defendant

Procedural Posture

Probate Proceedings / Final Judgment

Legal Issues

  1. 1 Whether the gift of 64 Bayview Street, Soldiers Point to David Ronald Brook in clause 8 of the Will passes to his issue under the Succession Act 2006 NSW and Wills Probate and Administration Act 1898 NSW, or has adeemed by sale, or falls into residue
  2. 2 Whether clauses 28-30 of the Will operate to adjust the division of residue under clause 10 in the manner suggested by the plaintiff
  3. 3 Whether the proceeds of sale of the Soldiers Point property should be brought into account in calculating the distribution to the DRB Trust

Ratio Decidendi

The gift of 64 Bayview Street, Soldiers Point to David Ronald Brook in clause 8 of the Will has adeemed due to its sale under an enduring power of attorney and does not pass to his issue. The proceeds of sale and accrued interest fall into the residuary estate, to be divided under clause 10 of the Will without adjustment by clauses 28-30.

Court Disposition

Declaration and costs order

Orders

  • Declare the gift of 64 Bayview Street, Soldiers Point to David Ronald Brook has adeemed and the proceeds form part of the residuary estate for division under clause 10 of the Will.
  • Order the costs of all parties be paid out of the estate.