Estate of Marcia Ann Dolan [2021] NSWSC 1197

Estate of Marcia Ann Dolan [2021] NSWSC 1197

Gary Michael Dolan's separate 10% gift of residue was forfeited because he murdered the deceased. The Will had no effective accrual provision or general residuary clause and the stepchildren's gifts were separate independent gifts rather than a class gift, so the forfeited share was subject to partial intestacy. Because Paul Anthony Stow had been adopted, he was not the deceased's legal issue for intestacy purposes, and the forfeited share passed to the deceased's only sibling, Barry Thomas Carroll. Barry Thomas Carroll's Will left his interest to Maureen Winifred Carroll, so the funds held in Court were directed to be paid to Christopher William Carroll as her tutor or to her financial...

Jurisdiction
Australia
Judgment Date
09 September 2021
Procedural Posture
Application by Amended Notice of Motion Concerning Distribution of Funds Held in Court in Estate Administration / Principal Judgment
Outcome
Directions made disposing of the application.
Legal Topics
['administration of Estates' 'persons Entitled on Intestacy' 'forfeiture of Testamentary Gift' 'residue' 'partial Intestacy' 'adoption and Intestacy']
['succession' 'equity'] ['administration of Estates' 'persons Entitled on Intestacy' 'forfeiture of Testamentary Gift' 'residue' 'partial Intestacy' 'adoption and Intestacy']

Case Brief

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Procedural Posture

Application by Amended Notice of Motion Concerning Distribution of Funds Held in Court in Estate Administration / Principal Judgment

Legal Issues

  1. 1 ['Whether the forfeited 10% share of residue bequeathed to Gary Michael Dolan passed under an accrual provision or general residuary clause, or on partial intestacy.' 'Whether the Will contained an effective accrual provision or a general residuary clause covering the failed gift.' "Whether Paul Anthony Stow could take on the deceased's intestacy despite having been adopted." "Whether the funds held in Court should be paid to Maureen Winifred Carroll, the sole beneficiary of Barry Thomas Carroll's Will, despite there being no grant of probate or letters of administration for Barry Thomas Carroll's estate."]

Ratio Decidendi

Gary Michael Dolan's separate 10% gift of residue was forfeited because he murdered the deceased. The Will had no effective accrual provision or general residuary clause and the stepchildren's gifts were separate independent gifts rather than a class gift, so the forfeited share was subject to partial intestacy. Because Paul Anthony Stow had been adopted, he was not the deceased's legal issue for intestacy purposes, and the forfeited share passed to the deceased's only sibling, Barry Thomas Carroll. Barry Thomas Carroll's Will left his interest to Maureen Winifred Carroll, so the funds held in Court were directed to be paid to Christopher William Carroll as her tutor or to her financial...

Court Disposition

Directions made disposing of the application.

Orders

  • ["Direct that the funds paid into Court by Leonard Francis Saville in proceeding number 3164 of 2008 in this honourable Court be paid out to Christopher William Carroll as tutor for Maureen Winifred Carroll as the person named as the sole beneficiary of the Will of the late Barry Thomas Carroll, or in the...