Pinch v Prinsse [2000] NSWSC 1030

New South Wales Supreme Court

CITATION : Pinch v Prinsse [2000] NSWSC 1030 FILE NUMBER(S) : SC 3992 of 1999 HEARING DATE(S) : 15 May, 30 June, 28 July, 6, 20 October 2000 JUDGMENT DATE : 7 November 2000

PARTIES : Leanne Pinch and Gregory Smith (Plaintiffs) Yvonne Prinsse (Defendant) JUDGMENT OF : Master McLaughlin at 51

COUNSEL : K. Morrissey (Plaintiffs) M. Willmott (Defendant) SOLICITORS : Hennikers Solicitor (Plaintiffs) Eric Butler Solicitors (Defendant) CATCHWORDS : Will - Distribution of assets - Death of beneficiary (being child of testator), leaving issue, during lifetime of testator - Entitlement of widow of beneficiary upon his intestacy - Executor in probate application discloses entitlement of other persons to one half of estate - Executor distributes to herself entirety of estate - Whether relevant limitation period in respect of claim by widow has expired - Which party bears the evidentiary burden in respect to such asserted expiry of the limitation period - Appropriate relief. Wills, Probate and Administration Act, 1898 LEGISLATION CITED : Trustee Act, 1925 Limitation Act, 1969 CASES CITED : Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Pullen v Gutteridge Haskins & Davey Pty Limited (1993) 1 VR 27 DECISION : See paragraph 51

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 7 November 2000

3992 of 1999 LEANNE PINCH and GREGORY SMITH -V- YVONNE PRINSSE JUDGMENT

1 MASTER: These proceedings were instituted by summons filed on 10 September 1999. The Plaintiffs named in that summons were Leanne Pinch and Gregory Smith, and the Defendant was Yvonne Prinsse. 2 By that summons the Plaintiffs claimed declaratory and other relief in respect to the estate of the late John Smith (to whom I shall refer as "the Deceased"). 3 On 15 May 2000 Mr Justice Hamilton, by consent of the parties, ordered that the trial of the proceedings be referred to a Master. 4 The Deceased, who died on 7 July 1986, left a will dated 7 April 1981, probate whereof was on 21 June 1987 granted to Yvonne Jeanette Prinsse, the executor named in such will (who is the Defendant to the present proceedings). 5 At the time of his death the Deceased was a widower, his wife having pre-deceased him on 28 April 1981. 6 By his will the Deceased, in the events which have happened, provided, by clause 3, as follows: SHOULD my wife predecease me or die within twenty eight days of the date of my death then I appoint my son RONALD WILLIAM JOHN SMITH and my daughter YVONNE JEANETTE PRINCE [ sic ] Executor and Executrix of this my Will and in that event I GIVE DEVISE AND BEQUEATH the whole of my estate as aforesaid UNTO my son and said daughter in equal shares as tenants in common. 7 The Deceased had fathered two children, being Ronald (who predeceased the Deceased, having died on 21 August 1981) and Yvonne, the Defendant (who survived the Deceased). 8 The two Plaintiffs named in the summons, Leanne Pinch and Gregory Smith, are the two children of the late Ronald Smith (to whom I shall refer at "Ronald"). Ronald, who died intestate, was survived by his wife Clare Georgina Smith (now Mrs Burnett) and by his two children. 9 The death of Ronald during the lifetime of the Deceased had the effect of activating the provisions of section 29 of the Wills, Probate and Administration Act, 1898. That section provides, Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of any such person dies in the lifetime of the testator, leaving issue, and any such issue of such person is living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will. 10 The general effect of the foregoing section is a fictitious prolongation of the life of the original devisee or legatee, as the case may be, in order to prevent the devise or bequest from lapsing. It does not substitute the issue for the deceased beneficiary, but results in the vesting of the property in the personal representative of the deceased devisee or legatee, and the share will then devolve according to that person's will, if any, or otherwise will be distributed as on an intestacy. 11 In the instant case, therefore, since Ronald left issue at the time of his death (being his children Leanne and Gregory), the gift to Ronald of a one half interest in the estate of the Deceased did not lapse, but, since Ronald died intestate, passed upon intestacy. Ronald was survived by his widow (to whom I shall refer as "Clare"), and in consequence (he having no assets at the time of his death), Ronald's interest in the estate of the Deceased passes in its entirety to Clare. 12 However, it would appear that Ronald's children mistakenly thought that Ronald's entitlement under the will of the Deceased passed to them, rather than, upon Ronald's intestacy, to their mother. It was as a result of that apparent belief that the proceedings were instituted in the form in which they were originally constituted, naming as Plaintiffs only Leanne and Gregory. A claim by Leanne and Gregory for such an interest in the estate of the Deceased was misconceived, and was doomed to failure. 13 The apparent mistaken belief of Leanne and Gregory concerning an entitlement by them to the interest of their father in the estate of the Deceased can, at least in part, be explained by the totally misleading statement of the executor in support of the application for probate, where, under the heading "Persons Entitled", appears the following, Margie May Smith, the wife of the Deceased, predeceased the deceased.