Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495

New South Wales Supreme Court

CITATION : Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 104901/2000 HEARING DATE(S) : 25/05/2000 JUDGMENT DATE : 25 May 2000

PARTIES : JUDGMENT OF : Young J

COUNSEL : Reference by Registrar in Probate Heard in Chambers on the papers SOLICITORS : CATCHWORDS : SUCCESSION [156]- Lapse- Gift to child- Child predeceased testator- Whether contrary intention shown by gift over. LEGISLATION CITED : Wills Probate & Administration Act, 1898, s 29 Bassett v Hall [1994] 1 VR 432 CASES CITED : Davies v The National Trustees Executor & Agency Co of Australasia Ltd [1912] VLR 397 Re Meredith [1924] 2 Ch 552 Re Wilson (1920) 89 LJ Ch 216 DECISION : See paras 14-18

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J Thursday 25 May 2000

104901/00 - ESTATE OF ELIZABETH EMILY JENKINSON

JUDGMENT

1 HIS HONOUR: This matter was referred by the Registrar in Probate to me as the Probate List Judge. It was heard in chambers without appearance. 2 Elizabeth Emily Jenkinson (the testatrix) died on 3 February 1998 aged 87. What is proffered as the testatrix's last will and testament bears the date 28 February 1991 and is in the following form:

1. Appointment of daughter Sylvia or, if she predeceased the testatrix, the testatrix's son-in-law Alan, as executor.

2. A specific bequest to the testatrix's son.

3. "I GIVE DEVISE AND BEQUEATH the rest and residue of my property both real and personal whatsoever wheresoever situate after payment of my just debts funeral and testamentary expenses and all death estate and succession duties State to my said daughter SYLVIA TAYLOR but if she should predecease me then to her husband ALAN LLEWELLYN TAYLOR." 3 Sylvia Taylor, the testatrix's daughter, died on 24 January 1993. She was survived by her husband Alan who died on 30 August 1995. Thus both Sylvia and Alan Taylor predeceased the testatrix. 4 After the death of Sylvia Taylor, Alan Taylor married Clover Phyllis Taylor who is an applicant for administration of the testatrix's estate. Clover Taylor is the executor of Alan Taylor's estate which was left as to part to the son of Sylvia and Alan Taylor, Stephen Thomas Ivor Taylor and the rest and residue to Clover Taylor. Apart from her daughter, Sylvia, the testatrix also had a son, Raymond Taylor. 5 The question that arises is whether s 29 of the Wills Probate and Administration Act 1898 has any application in the present circumstances. 6 Section 29 provides as follows: "Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed ... 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." 7 If s 29 applies, then the rest and residue of the testatrix's estate will pass to the estate of Sylvia Taylor. No probate was ever granted of Sylvia Taylor's estate as all the assets she was believed to have owned were owned jointly with her husband Alan. When Alan died probate of his will was granted to Clover Taylor. It would thus seem that on this possibility Clover Taylor is entitled to Sylvia Taylor's estate and is entitled to apply for administration. 8 If, on the other hand, there is a "contrary intention" shown by the will, then the rest and residue will pass as to one-half to the testatrix's son Raymond, and the other half to her grandson, son of Sylvia Taylor, Stephen Thomas Ivor Taylor. 9 Section 29 is in virtually the same words as s 33 of the English Wills Act of 1837. It has been reviewed by courts on a number of occasions over the last hundred and fifty years, but as Jarman on Wills says (Sweet & Maxwell, London, 8th ed, 1951) p 466, there are not many cases on the question as to what is a sufficient contrary intention. In Re Wilson (1920) 89 LJ Ch 216, 217, Eve J indicated that he considered that, ordinarily, a gift over would indicate a contrary intention. This thinking was reinforced in Re Meredith [1924] 2 Ch 552, where a testator wrongly thought that a gift to his son had lapsed because the son had predeceased him and provided in a codicil that as the gift had lapsed, he would make a provision for his grandchildren by that son. 10 It should be noted that the result I have just mentioned in Re Meredith applied only to realty. The testator made no further provision about personalty so that the section was held to apply with respect to the personalty. A similar result was obtained in Davies v The National Trustees Executor & Agency Co of Australasia Ltd [1912] VLR 397, where a codicil had made some provision following the death of a beneficiary's son, but not with respect to the whole of the benefit given to that son by the will. 11 There is academic opinion to the effect that s 29 should be strictly construed. In the words of Hardingham Neave & Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, Butterworths, Melbourne, 1989) p 240, "It is not enough for (the testator) to provide an alternative destination for the property if the legatee should predecease him; he must say what is to happen to the property if a legatee predeceases him leaving issue who survived the testator." The learned authors go on to say that that strict view might not be appropriate for sections such as s 29 of the NSW Act, but the expanded provision in s 31 of the Victorian Act of 1958 would be affected by that construction. 12 The Victorian Supreme Court Appeal Division did not accept that view in Bassett v Hall [1994] 1 VR 432, 435. Their Honours indicated that to take that view was "tantamount to saying that the only effective contrary intention would be an express exclusion of" the section. 13 There has not been any reported case as far as I am aware on the point since Bassett v Hall which, as a decision of an interstate Full Court, should normally be followed as of course. 14 Thus in my view I should not adopt any "strict view" of s 29 but follow the line of cases that indicates that it is ordinarily a sufficient contrary intention if the testator has in the will made a gift over in the event that a particular child does not survive the testator. 15 Accordingly, in the instant case the section does not operate and the testatrix died intestate as to her residue and that residue passes as on intestacy. 16 It seems to follow that Clover Taylor is not entitled to a grant of administration. 17 The estate is only a very small one consisting of about $17,800. For that reason the matter has been dealt with on the papers in chambers on the application of the solicitor concerned. The result would appear to be that the present application should be dismissed. A former application made in suit 115163/99 by Stephen Thomas Ivor Taylor appears to have been rejected. It would probably be appropriate if either a grant were made to Raymond or Stephen Taylor in the present suit, or alternatively, suit 115163/99 referred to me as Probate List Judge so that the initial rejection of the application can be reversed without further costs. 18 The costs of the application should come out of the estate as it was bona fide made in the interests of due administration of the testatrix's estate. ********************