Sharp v McMahon [2003] NSWSC 891

New South Wales Supreme Court

CITATION : Sharp v McMahon [2003] NSWSC 891 HEARING DATE(S) : 1 August 2003 JUDGMENT DATE : 1 August 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : See paragraph 7 of judgment

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION construction of will Jeannette Mary Sharp (First Plaintiff) Dennis Edmund McMahon (Second Plaintiff) Timothy John Michael McMahon (First Defendant) Matthew David McMahon (Second Defendant) Katie Elizabeth McMahon (Third Defendant) Bonnie Anne McMahon (Fourth Defendant) Anne Patricia Jefferies (Fifth Defendant) PARTIES : Louise Frances Thomson (Sixth Defendant) Catherine Judith McCarthy (Seventh Defendant) Richard Gregory McMahon (Eighth Defendant) Patrick David McMahon (Ninth Defendant) Patricia Marie Shields (Tenth Defendant) John Gerard McMahon (Eleventh Defendant) Adrienne McMahon (Twelfth Defendant) Thomas John Seres (Thirteenth Defendant)

FILE NUMBER(S) : SC 3186 of 2003 Mr F Donohoe (Plaintiff) COUNSEL : A McManus (as tutor for fourth defendant) No appearance (Defendants, 1-3, 5-13) SOLICITORS : Verekers (Plaintiff) A McManus (as tutor for fourth defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 1 AUGUST 2003

3186/03 SHARP v MCMAHON

JUDGMENT

1 HIS HONOUR: The question for determination in this matter arises under the will of Mary Margaret McMahon who died on 12 September 2002. Probate of her will was granted to the plaintiffs on 25 March 2003, the will being dated 3 December 1984. 2 Under clause 20 of her will, the deceased gave the residue of her estate, as to four fifteenths, to a friend Thomas Seares, as to a further four fifteenths to her brother, Edmond McMahon, and, as to seven fifteenths, to her brother, Patrick McMahon. 3 Clause 21 of the will was as follows: In the event of my brothers Edmond McMahon or Patrick McMahon not surviving me for a period of 30 days, leaving children or child, then but not otherwise those children or that child shall (and more than one) equally take share which their, his or her, parents would have otherwise have taken. 4 Patrick McMahon died on 20 October 1985 and Edmond McMahon died on 22 April 1992, both, thus, predeceasing the testatrix, who was their sister. Both of them left children. Edmond left four children, all of whom survived the deceased. They are, therefore, entitled to take equally among them the share which their father would have taken had he survived his sister. Patrick was survived by seven children. All but one of these survived the deceased, Anthony John McMahon, the only child who predeceased the deceased, he having died on 30 July 2002.