Catholic Parish of St Brigid Marrickville v Habib as Executor of the Estate of the late Tereza Efram [2022] NSWSC 1139

Supreme Court New South Wales

Medium Neutral Citation: Catholic Parish of St Brigid Marrickville v Habib as Executor of the Estate of the late Tereza Efram [2022] NSWSC 1139 Hearing dates: 11 March and 7 July 2022, Date of orders: 25 August 2022 Decision date: 25 August 2022 Jurisdiction: Equity Before: Slattery J Decision: Gift of the residence found to be valid. Cross summons dismissed. Executor's costs paid out of the estate on the indemnity basis. Plaintiff's costs paid out of the estate on the ordinary basis Catchwords: SUCCESSION – WILLS – INTERPRETATION – testatrix gifts "my principal place of residence" to her local church – financial management order made with respect to the testatrix under the NSW Trustee and Guardian Act 2009 ("TAG Act") – testatrix becomes a "managed person" under the TAG Act – testatrix placed into permanent care away from her residence before her death due to her infirmity – the NSW Trustee and Guardian ("TAG") sells the testatrix's residence and proceeds of sale partially used to fund her permanent care – whether the gift is a specific or general gift – whether the gift would be adeemed by the TAG's sale of the residence – whether TAG Act, s 83 saves the gift from ademption – in the alternative what directions should be made for the administration of the residue of the estate in circumstances where the residuary beneficiaries cannot be found. Legislation Cited: Guardianship Act 1987, s 25E, s 25G NSW Trustee and Guardian Act 2009, s 38, s 39, s 48, s 71, s 82, s 83. Protected Estates Act 1983 Succession Act 2005, s 30 Wills Act 1837 (UK) Cases Cited: Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404 Brown v Butcher (1922) 22 SR (NSW) 176 Christensen v McKnight (Supreme Court, Hodgson J, 2 March 1995, unreported) Fell v Fell (1922) 31 CLR 268 In re Evans; Evans v Powell [1909] 1 Ch 784 In Re Hood [2004] VSC 328 In Re Rowell (1982) 31 SASR 361 In re Walker [1921] 2 Ch 63 Hatzantonis v Lawrence [2003] NSWSC 914 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 McBride v Hudson (1962) 107 CLR 604 Nash v Inman [1908] 2 KB 1 Pohlner v Pfeiffer (1964) 112 CLR 52 RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 Re Willis [1996] 2 Qd R Re-Rhodes (1890) 44 Ch D 94 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Walsh v Adrian Sloan as executor of the estate of the late Loretta Dorothy Keddie [2019] WASCA 107 Texts Cited: Jarman on Wills (2nd ed, 1855) P Birks, An Introduction to the Law of Restitution (Clarendon Press Oxford, 1988) Category: Principal judgment Parties: Plaintiff/Cross Respondent: Catholic Parish of St Brigid Marrickville Defendant/Cross Claimant: George Habib as executor of the Estate of the late Tereza Efram Cross-Defendant: Attorney General for New South Wales (submitting appearance) Representation: Counsel: Plaintiff/Cross Respondent: M. Tibbey Defendant/Cross Claimant: P. Muscat