Application of Vera Hayes; Estate of Henry Ernest Johnston [2000] NSWSC 1097

Application of Vera Hayes; Estate of Henry Ernest Johnston [2000] NSWSC 1097

Thomas Johnston's initial signed notice could not be treated as a binding final election because, at that time, no representative of the estate existed to receive it and issue a contract or transfer. The will required his wish to purchase to continue until conveyance, and his later conduct showed that he was not willing to purchase the property in accordance with the will. The Windang property therefore fell into residue.

Jurisdiction
Australia
Judgment Date
27 November 2000
Procedural Posture
Application for Judicial Advice in Estate Administration / Final Judgment
Outcome
Judicial advice given to the plaintiff administrator that she would be justified in distributing the estate on the basis that Thomas Johnston did not wish to purchase the Windang property.
Legal Topics
['option by Will' 'construction of Will' 'exercise and Withdrawal of Option to Purchase' 'judicial Advice to Administrator']
['conveyancing' 'succession' 'trusts and Estates'] ['option by Will' 'construction of Will' 'exercise and Withdrawal of Option to Purchase' 'judicial Advice to Administrator']

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Procedural Posture

Application for Judicial Advice in Estate Administration / Final Judgment

Legal Issues

  1. 1 ['Whether Thomas Johnston should be regarded as not wishing to purchase the property at 81 Ocean Street, Windang under the will.' 'Whether the plaintiff administrator would be justified in distributing the estate on the basis that the Windang property fell into residue.']

Ratio Decidendi

Thomas Johnston's initial signed notice could not be treated as a binding final election because, at that time, no representative of the estate existed to receive it and issue a contract or transfer. The will required his wish to purchase to continue until conveyance, and his later conduct showed that he was not willing to purchase the property in accordance with the will. The Windang property therefore fell into residue.

Court Disposition

Judicial advice given to the plaintiff administrator that she would be justified in distributing the estate on the basis that Thomas Johnston did not wish to purchase the Windang property.

Orders

  • ['The Court advises the plaintiff under s 63 of the Trustee Act 1925 that she would be justified in distributing the estate of the late Henry Ernest Johnston on the basis that Thomas Johnston did not wish to purchase the property at 81 Ocean Street, Windang.' 'The costs of the summons are to be paid out of the...