Ornella Garbett v Rae Dawn Bear [2015] NSWSC 1524

Ornella Garbett v Rae Dawn Bear [2015] NSWSC 1524

The clause 8 and clause 9 gifts (providing for sale of the property and division of proceeds) are to prevail over the block gifts to Ornella, as the subdivision required for the latter is impossible; the will should be read as primarily intending the distribution of proceeds to family, with residue (including the BPL shares) passing to Ornella after administration. The license for Rae to reside as intended should be protected in any sale. Gifts to Ornella of the dwellings fail due to impossibility.

Parties
Plaintiff: Ornella Garbett; First Defendant: Rae Dawn Bear; Second Defendant: Rodney Barnett Bear; Third Defendant: Kerryn Stacey Bear; Fourth Defendant: Roxanna Lenice Bear; Fifth Defendant: Marilyn Gay Watts; Sixth Defendant: Christine June Haines; Seventh Defendant: Cheryl Jon Fowler
Jurisdiction
Australia
Judgment Date
01 October 2015
Procedural Posture
Principal Judgment / Final Judgment on Will Construction
Outcome
Orders granted as per judgment; principal gifts in will construed as prevailing; costs out of estate.
Legal Topics
Construction of Wills, Testamentary Dispositions, Intention of Testator, Inconsistent Will Provisions, Subdivision and Sale of Real Property, Residue and Bequests, License to Occupy, Rule Against Perpetuities
Equity Succession Law Construction of Wills Testamentary Dispositions Intention of Testator Inconsistent Will Provisions Subdivision and Sale of Real Property Residue and Bequests +2 more

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Parties

Ornella Garbett

Plaintiff

Rae Dawn Bear

First Defendant

Rodney Barnett Bear

Second Defendant

Kerryn Stacey Bear

Third Defendant

Roxanna Lenice Bear

Fourth Defendant

Marilyn Gay Watts

Fifth Defendant

Christine June Haines

Sixth Defendant

Cheryl Jon Fowler

Seventh Defendant

Procedural Posture

Principal Judgment / Final Judgment on Will Construction

Legal Issues

  1. 1 Whether the executrix is directed to subdivide the property as per the will
  2. 2 Whether inconsistent provisions in the will can be reconciled if subdivision is not possible
  3. 3 Whether the beneficial entitlements are defeated if subdivision is not permitted

Ratio Decidendi

The clause 8 and clause 9 gifts (providing for sale of the property and division of proceeds) are to prevail over the block gifts to Ornella, as the subdivision required for the latter is impossible; the will should be read as primarily intending the distribution of proceeds to family, with residue (including the BPL shares) passing to Ornella after administration. The license for Rae to reside as intended should be protected in any sale. Gifts to Ornella of the dwellings fail due to impossibility.

Court Disposition

Orders granted as per judgment; principal gifts in will construed as prevailing; costs out of estate.

Orders

  • Clause 8 and 9 gifts of sale and division of proceeds prevail.
  • Gifts to Ornella of the dwellings fail due to impossibility of subdivision.