Longmore v Longmore & Ors; The Estate of Jean Longmore [2018] NSWSC 90

Longmore v Longmore & Ors; The Estate of Jean Longmore [2018] NSWSC 90

The Victorian legislation considered in Bassett & Ors v Hall was relevantly indistinguishable in substance from Wills, Probate and Administration Act 1898, s 29, and its ratio dealt with the same issue. Following Bassett & Ors v Hall and related authority, the words "such of my children as survive me" and "in equal...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 March 2018
Procedural Posture
Equity Proceedings Concerning Construction of a Will and the Application of Wills, Probate and Administration Act 1898, S 29 / Determination of Summons Dated 22 June 2017 and Consequential Orders
Outcome
A contrary intention appears in clause 4 of the will, defeating the application of Wills, Probate and Administration Act 1898, s 29; the plaintiff may distribute the estate without regard to pre-deceased issue or persons beneficially entitled to any pre-deceased issue's estate.
Legal Topics
['construction of Wills' 'lapse of Gifts' 'statutory Substitutional Gifts to Issue' 'contrary Intention Under Wills, Probate and Administration Act 1898, S 29' 'costs Out of Estate']
['succession' 'wills and Estates' 'probate and Administration'] ['construction of Wills' 'lapse of Gifts' 'statutory Substitutional Gifts to Issue' 'contrary Intention Under Wills, Probate and Administration Act 1898, S 29' 'costs Out of Estate']

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Procedural Posture

Equity Proceedings Concerning Construction of a Will and the Application of Wills, Probate and Administration Act 1898, S 29 / Determination of Summons Dated 22 June 2017 and Consequential Orders

Legal Issues

  1. 1 ['Whether the words in the testatrix\'s will, "between such of my children as survive me in equal shares as tenants in common", constitute a contrary intention so as to negative the operation of Wills, Probate and Administration Act 1898, s 29.' "Whether the plaintiff is entitled to distribute the deceased's estate without regard to the interests of pre-deceased issue or persons beneficially entitled to any pre-deceased issue's estate."]

Ratio Decidendi

The Victorian legislation considered in Bassett & Ors v Hall was relevantly indistinguishable in substance from Wills, Probate and Administration Act 1898, s 29, and its ratio dealt with the same issue. Following Bassett & Ors v Hall and related authority, the words "such of my children as survive me" and "in equal shares as tenants in common" in clause 4 of the testatrix's will indicated an intention to benefit only surviving children and therefore expressed a contrary intention defeating the operation of s 29.

Court Disposition

A contrary intention appears in clause 4 of the will, defeating the application of Wills, Probate and Administration Act 1898, s 29; the plaintiff may distribute the estate without regard to pre-deceased issue or persons beneficially entitled to any pre-deceased issue's estate.

Orders

  • ['Question 1: In the events which have happened a contrary intention appears in clause 4 of the will of the late Jean Longmore, which would defeat the application of section 29 of the Wills, Probate and Administration Act 1898 to the said Clause 4.' 'Question 2: As the answer to Question 1 is "yes", the plaintiff is...