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. 5 The question for decision, then, is the distribution of the seven fifteenths share in residue which would have gone to Patrick McMahon had he survived his sister. As Anthony John McMahon predeceased the testatrix, no part of the estate passes to his estate. The basic principle of distribution of an estate is that those alive at the date of distribution, namely, in this case the date of death, are those who can take and those who are not alive at that date cannot take and neither can their estate. 6 The question, then, is what should happen to the one fifteenths share which would have passed to Anthony had he survived his father? That distribution is in my view determined by clause 21 of the will. There were children of Patrick McMahon alive and able to take at the date of distribution, namely, the date of death of the testatrix. Under clause 21 those children were to take the share which their father would have taken. I do not think an ordinary construction of clause 21 would mean that there was an intestacy as to a one fourteenth's share under the will. The will does not provide for further distribution to issue other than the children of Patrick. As there were people falling within the class of children of Patrick living at the date of death of the testatrix, then those children are entitled to take in equal shares the share which would have gone to their father had he survived the testatrix. What follows from that, as I have said, is that the children of Anthony cannot take under the will and they do not take under any intestacy because there is no intestacy. 7 The order is that, on the true construction of the will of Mary Margaret McMahon deceased dated 3 December 1984 and in the events which have happened, the share in residue which would have passed to Patrick McMahon had he survived the testatrix for 30 days passes in equal shares to such of the children of the said Patrick McMahon as were living at the death of the testatrix. 8 Costs of the plaintiffs on an indemnity basis be paid out of the estate of the deceased. ********** Last Modified: 10/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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