Blanket v Blanket [2007] NSWSC 1439

Blanket v Blanket [2007] NSWSC 1439

Clause 4 made absolute specific gifts of separate properties to each daughter and was not conditional on the estate being able to equalise their values. Any inequality was to be made up only in cash from the balance of the estate if such funds were available, and not by charging the properties given to Mrs Costi or by resort to Northland Road in view of the disclaimer. Under section 145 of the Conveyancing Act 1919, mortgage and land tax charges secured on particular properties remained primarily payable from those charged properties because the will showed no contrary intention.

Jurisdiction
Australia
Judgment Date
29 October 2007
Procedural Posture
Construction of Will / One Day List Hearing
Outcome
Judgment as to construction of will; questions in the amended summons were answered.
Legal Topics
['construction of Will' 'conditional Gift' 'specific Devises' 'residue' 'secured Debts on Devised Property' 'testamentary Expenses']
['wills, Probate and Administration' 'equity'] ['construction of Will' 'conditional Gift' 'specific Devises' 'residue' 'secured Debts on Devised Property' 'testamentary Expenses']

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Procedural Posture

Construction of Will / One Day List Hearing

Legal Issues

  1. 1 ['Whether the devises to Mrs Costi and Mrs Blanket under clause 4 of the will failed and fell into residue because the intended equality between them could not be made up from estate funds.' 'Whether any inequality between the clause 4 gifts should be equalised by payment to Mrs Blanket out of a particular fund forming part of the estate.' 'Whether Mrs Costi was required to make up the inequality out of benefits she took under the will.' 'Whether debts secured on real estate were payable by the devisees of the charged properties or out of residue.' 'How income received and outgoings paid after death in respect of particular devised properties should be treated.']

Ratio Decidendi

Clause 4 made absolute specific gifts of separate properties to each daughter and was not conditional on the estate being able to equalise their values. Any inequality was to be made up only in cash from the balance of the estate if such funds were available, and not by charging the properties given to Mrs Costi or by resort to Northland Road in view of the disclaimer. Under section 145 of the Conveyancing Act 1919, mortgage and land tax charges secured on particular properties remained primarily payable from those charged properties because the will showed no contrary intention.

Court Disposition

Judgment as to construction of will; questions in the amended summons were answered.

Orders

  • ['Paragraph 1(a): no.' 'Paragraph 1(b): out of residue if funds are available.' 'Paragraph 1(c)(i): no.' 'Paragraph 1(c)(ii): no, as no funds are available to satisfy the legacies.' 'Paragraph 1(c)(iii): no, in view of disclaimer of first defendant.' 'Paragraph 1(c)(iv): no.' 'Paragraph 2(a): yes, as to charges for...