BRYAN WILLIAM MORTENSEN and ELIZABETH GEDGE EASSIE v STATE OF NEW SOUTH WALES [1991] NSWCA 207

BRYAN WILLIAM MORTENSEN and ELIZABETH GEDGE EASSIE v STATE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and SHELLER JJA 9 December 1991, 12 December 1991 [1991] NSWCA 207

WILL — Testatrix died leaving no next of kin — Close attachment between testatrix and children of neighbour — Whole estate given by will to these children — Brother and two sisters — Unrelated to testatrix — Unknown to testatrix brother predeceased her — No provision in will for beneficiary not surviving testatrix Lapse — Share to Crown as bona vacantia — s29A of Wills Probate and Administration Act 1898 — Application by surviving beneficiaries — On giving instructions for will testatrix's expressed intentions — Wanted whole estate to go to three children — Not to go to "government" — No expressed intention in case of beneficiary predeceasing her — In absence of evidence of such intention application failed

Mahoney JA I agree with the judgment of Sheller JA. Meagher JA I agree with Sheller JA.

Sheller JA BACKGROUND

This is an appeal from a decision of Needham AJ. The appellants are the executor, executrix and trustees of the estate of the late Nina Spinks who died on 2 October 1989 having executed her last will and testament on 7 September 1987. Mrs Spinks was predeceased by her husband who died on 16 July 1987. She was illegitimate and never knew who her father was. All relevant relatives on her mother's side had died before 1987, a fact of which she was aware. It followed that, in the absence of a will, her estate would pass to the Crown.

By her will she appointed the appellants Bryan William Mortensen and Elizabeth Gedge Eassie her executors and trustees and gave devised and bequeathed the whole of her estate both real and personal whatsoever and wheresoever unto Peter Gedge Longworth, Victoria Gedge Young and Elizabeth Gedge Eassie in equal shares. The three named beneficiaries were the children of Stuart and Doreen Longworth. Victoria was born on 15 August 1947, Elizabeth on 8 June 1950 and Peter on 21 April 1955. Peter predeceased Nina Spinks, dying by his own hand on 6 September 1989 a fact of which Nina Spinks was never aware. Nor was she aware that for a period of over a year he had been diagnosed as having a mental illness. Peter never married. By his will he left his estate to his sisters in equal shares.