The Application of the NSW Trustee and Guardian; The Estate of Alice Maude Critchley [2020] NSWSC 1635

Supreme Court New South Wales

Medium Neutral Citation: The Application of the NSW Trustee and Guardian; The Estate of Alice Maude Critchley [2020] NSWSC 1635 Hearing dates: 16 November 2020 Date of orders: 20 November 2020 Decision date: 20 November 2020 Jurisdiction: Equity Before: Slattery J Decision: On the true construction of the Will of the late Alice Maude Critchley, and in the events which have occurred, the whole of the testator's residuary estate should be distributed to those two of her children who survived the death of the testator's daughter, who occupied the estate's residential property and had the income for life from the estate. Distribution of the residuary estate is stayed for a period sufficient to determine whether any party to the deed of family arrangement will seek to enforce it and pending determination of any issues arising out of the deed of family arrangement. Catchwords: SUCCESSION – Construction and effect – testator gives to two nominated daughters of her 11 children (a) a right of occupation for life in certain residential property in her estate, and (b) a right to income for life from the balance of her estate – both rights were subject to defeasance, "upon the remarriage of either of my aforementioned daughters" such that "the other daughter shall be entitled" to exclusive use of the property and the said income "until her death or remarriage" – and upon death or remarriage "of both my said daughters" the testator authorised the trustee "to divide the residue of my estate amongst my surviving children equally" – after the death of the testator one of the daughters given a life interest remarried and later the other daughter given a life interest dies – two of the testator's 11 children survive at the time one of the daughters given a life interest dies – whether on the true construction of the Will, the residue of the testator's estate should be distributed equally to the two of her children, who survive the death of one of the daughters given a life interest when the other daughter given a life interest has remarried – the two surviving children of the testator are signatories to a deed of family arrangement – whether an opportunity should be given to the parties to the deed of family arrangement to pursue its possible enforcement before the distribution of the estate. Legislation Cited: Family Provision Act 1982 Uniform Civil Procedure Rules 2005, rr 7.7, 7.9, 7.12 Cases Cited: Accordent Pty Ltd and Portellos v Bresimark Nominees Pty Ltd (2008) 101 SASR 286 Austin & Anor v Wells & Ors [2008] NSWSC 1266 Beswick v Beswick [1968] AC 58 In re Blackwell [1926] Ch 223 Marks v Trustees Executors and Agency Co Ltd (1948) 77 CLR 497 Moody & Anor v Condor Insurance Ltd & Anor [2006] 1 WLR 1847 Texts Cited: Nicholas Seddon, Seddon on Deeds (2015, The Federation Press) Category: Principal judgment Parties: Plaintiff: NSW Trustee and Guardian Additional Information: The Estate of Alive Maude Critchley Representation: Counsel: Plaintiff: E. Glover