Peoples & Anor v Simpson & Anor [2005] NSWSC 355

Peoples & Anor v Simpson & Anor [2005] NSWSC 355

The phrase "the issue of any deceased child of mine standing in loco parentis" in the ultimate gift over was to be given the same meaning as in the devises to James Peoples and Patrick Peoples. The word issue bore its ordinary meaning of descendants of any degree, with a sliding application through successive descendants. Because each child stood in the position of his or her parent, the beneficiaries took per stirpes. Accordingly, the gift of the property was to all issue of the other children of the testator alive on 22 December 2003, including grandchildren and great grandchildren, per stirpes.

Jurisdiction
Australia
Judgment Date
20 April 2005
Procedural Posture
Equity Division Proceedings Concerning Construction of a Will and Codicil / Determination of Whether the Gift Over Was Limited to Grandchildren or Included Great Grandchildren, and Whether Distribution Was Per Capita or Per Stirpes
Outcome
Gift was to all issue of the other children of the testator living on 22 December 2003, including grandchildren and great grandchildren, taking their shares per stirpes.
Legal Topics
['construction of Testamentary Dispositions' 'gift Over' 'meaning of Issue' 'in Loco Parentis' 'per Capita and Per Stirpes Distribution']
['succession' 'wills, Probate and Administration'] ['construction of Testamentary Dispositions' 'gift Over' 'meaning of Issue' 'in Loco Parentis' 'per Capita and Per Stirpes Distribution']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Division Proceedings Concerning Construction of a Will and Codicil / Determination of Whether the Gift Over Was Limited to Grandchildren or Included Great Grandchildren, and Whether Distribution Was Per Capita or Per Stirpes

Legal Issues

  1. 1 ["Whether the gift over to the testator's children then surviving, with the issue of any deceased child standing in loco parentis, was limited to grandchildren of the testator or included great grandchildren." 'Whether the beneficiaries under the gift over took per capita or per stirpes.']

Ratio Decidendi

The phrase "the issue of any deceased child of mine standing in loco parentis" in the ultimate gift over was to be given the same meaning as in the devises to James Peoples and Patrick Peoples. The word issue bore its ordinary meaning of descendants of any degree, with a sliding application through successive descendants. Because each child stood in the position of his or her parent, the beneficiaries took per stirpes. Accordingly, the gift of the property was to all issue of the other children of the testator alive on 22 December 2003, including grandchildren and great grandchildren, per stirpes.

Court Disposition

Gift was to all issue of the other children of the testator living on 22 December 2003, including grandchildren and great grandchildren, taking their shares per stirpes.

Orders

  • ['The Court found that the gift of the property in question was to all the issue of the other children of the testator on 22 December 2003, the issue taking their shares per stirpes.' 'The Court stated it would hear the parties on costs.' 'The parties were directed to bring in short minutes of orders reflecting the...