EGGLER v MITCHELMORE [1998] NSWCA 73

EGGLER v MITCHELMORE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 30 September 1998

[1998] NSWCA 73

Priestley, Handley and Sheller JJA A question has arisen in these proceedings concerning the effect of orders of the court made upon a summons which applied for relief under the Family Provision Act 1982.

The proceedings concerned the estate of Mrs D M Cornwell who died in 1988. She left a will which was subsequently admitted to probate. Cl3 and cl4 of the will disposed of her estate. They were as follows:

"3. I GIVE all my jewellery clothing and other personal effects to my daughter NORMA MAVIS EGGLER.

4. AS TO the rest and residue of my estate to my Executor UPON TRUST as follows:-

(a) One half of such rest and residue to be divided equally between the following named as survive me:-

my daughter NORMA MAVIS EGGLER and my grandchildren MARK EGGLER, PETER EGGLER and ELIZA EGGLER such grandchildren to take upon attaining their majority.

(b) As to the remaining one-half of such rest and residue to be distributed as follows:-

(i) I give to my niece MAVIS CAMPBELL of 38 Burden Street, Springvale the sum of Five thousand dollars ($5,000.00) and if she predeceases me the gift of Five thousand dollars ($5,000.00) shall be divided equally between such of the children of MAVIS CAMPBELL as are alive as at the date of my death.

(ii) I give to my friend JULIANNA PIKE of 15 Edgecliff Road, Earlwood the sum of Five thousand dollars ($5,000.00) and if she predeceases me the gift of Five thousand dollars ($5,000.00) shall be divided equally between such of the children of JULIANNA PIKE as are alive as at the date of my death.

(iii) The remainder of the rest and residue after the payment of the aforesaid gifts shall be divided equally between the following named charities:-