NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397

NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397

On the true construction of the will as a whole, Sophia Hirsch was the intended principal beneficiary of the estate after payment of the pecuniary legacies numbered 1, 2 and 3, but the deceased did not intend an absolute gift. The estate was to be held on trust for Ms Hirsch on terms that income and capital may be applied for her benefit without money or property coming into her hands if it could be transferred by her to Melita Pecherskaya or members of her family; the restraint was valid because Ms Hirsch's interest was not absolute and indefeasible. Rectification replacing "not" with "now" was not warranted because the will expressed the deceased's intention to benefit Ms Hirsch subject...

Jurisdiction
Australia
Judgment Date
24 September 2013
Procedural Posture
Succession; Construction and Rectification of Will; Testamentary Trust / Determination of Separate Issues in Advance of Other Issues
Outcome
Proceedings stood over for further evidence and for declarations and orders consistent with the reasons; rectification as sought was not granted on the separate issues; further hearing of the inter vivos trust issue was stood over.
Legal Topics
['construction of Wills' 'rectification of Wills' 'informal Wills' 'testamentary Trusts' 'restraints on Alienation' 'saunders V Vautier']
['succession' 'equity' 'trusts'] ['construction of Wills' 'rectification of Wills' 'informal Wills' 'testamentary Trusts' 'restraints on Alienation' 'saunders V Vautier']

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

Succession; Construction and Rectification of Will; Testamentary Trust / Determination of Separate Issues in Advance of Other Issues

Legal Issues

  1. 1 ['Whether, on the true construction of the will, the estate other than legacies numbered 1, 2 and 3 was to be held in a testamentary trust for Sophia Hirsch.' 'Whether the words "Sophia Hirsch will not be left my house and the bulk of my estate" should be construed or rectified by replacing "not" with "now".' "Whether the attempted restraint preventing property from coming into Sophia Hirsch's hands in a way that could allow transfer to Melita Pecherskaya or her family was valid." 'Whether a St George bank account and BT Investment Fund units were the subject of an inter vivos trust for Sophia Hirsch.']

Ratio Decidendi

On the true construction of the will as a whole, Sophia Hirsch was the intended principal beneficiary of the estate after payment of the pecuniary legacies numbered 1, 2 and 3, but the deceased did not intend an absolute gift. The estate was to be held on trust for Ms Hirsch on terms that income and capital may be applied for her benefit without money or property coming into her hands if it could be transferred by her to Melita Pecherskaya or members of her family; the restraint was valid because Ms Hirsch's interest was not absolute and indefeasible. Rectification replacing "not" with "now" was not warranted because the will expressed the deceased's intention to benefit Ms Hirsch subject...

Court Disposition

Proceedings stood over for further evidence and for declarations and orders consistent with the reasons; rectification as sought was not granted on the separate issues; further hearing of the inter vivos trust issue was stood over.

Orders

  • ["The proceedings were stood over to a convenient date for the NSW Trustee and Guardian to provide evidence as might be available about investments held by the deceased in 2000 that might be the subject of a declaration of trust in favour of Sophia Hirsch during the deceased's lifetime." 'The proceedings were stood...