Marlow v Croft [2020] NSWSC 251

Marlow v Croft [2020] NSWSC 251

Clause 5 first gave the residue of the deceased's estate to Violet Marlow, and because no special gifts were made the residue comprised the whole estate, including the Blacktown property. The later words concerning Violet Marlow staying at the property until death and the property not being sold until her death did not create an express or implied remainder gift to the third to fifth defendants and did not cut down the absolute residuary gift. The contingent gift to the third to fifth defendants operated only if Violet Marlow predeceased the deceased, which did not occur. There was no basis to treat any remainder as passing on intestacy, and the plaintiff had not abandoned whatever estate...

Jurisdiction
Australia
Judgment Date
18 March 2020
Procedural Posture
Succession — Construction of Will / Final Hearing of Summons
Outcome
The true effect of clause 5 of the deceased's will was to make an absolute gift of the Blacktown property to the plaintiff.
Legal Topics
['construction of Will' 'absolute Gift' 'life Estate' 'residuary Gift' 'caveat' 'abandonment of Interest in Land']
['succession' 'equity'] ['construction of Will' 'absolute Gift' 'life Estate' 'residuary Gift' 'caveat' 'abandonment of Interest in Land']

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Procedural Posture

Succession — Construction of Will / Final Hearing of Summons

Legal Issues

  1. 1 ["Whether, on the true construction of clause 5 of the deceased's will, the Blacktown property formed part of the residue of the estate and passed absolutely to Violet Marlow." 'Whether Violet Marlow instead received a life estate, right of residence or similar entitlement in the Blacktown property, with any remainder to Mark Marlow, Tracy Marlow and Joanne Roe.' 'Whether any estate or interest of Violet Marlow in the Blacktown property had been lost by abandonment.' 'Whether the plaintiff was entitled to the proceeds of sale of the Blacktown property if it were sold during her lifetime.']

Ratio Decidendi

Clause 5 first gave the residue of the deceased's estate to Violet Marlow, and because no special gifts were made the residue comprised the whole estate, including the Blacktown property. The later words concerning Violet Marlow staying at the property until death and the property not being sold until her death did not create an express or implied remainder gift to the third to fifth defendants and did not cut down the absolute residuary gift. The contingent gift to the third to fifth defendants operated only if Violet Marlow predeceased the deceased, which did not occur. There was no basis to treat any remainder as passing on intestacy, and the plaintiff had not abandoned whatever estate...

Court Disposition

The true effect of clause 5 of the deceased's will was to make an absolute gift of the Blacktown property to the plaintiff.

Orders

  • ['The plaintiff should bring in short minutes of order to give effect to the reasons after conferral with the defendants.' 'The Court will hear the parties as to costs.']