Feltham as Executor of Estate Late J W Venn [2007] NSWSC 1198

New South Wales Supreme Court

CITATION : Feltham as Executor of Estate Late J W Venn [2007] NSWSC 1198

HEARING DATE(S) : 22 October 2007

JUDGMENT DATE : 22 October 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Court advises that testamentary gift lapses in respect of the three nieces and nephews who survived the testator's sister but predeceased the testator.

CATCHWORDS : SUCCESSION [251] – Wills, probate and administration – Construction and effect of testamentary dispositions – Legacies and devises – Lapse and interest undisposed of – Whether lapse of gift – Gift to such nieces and nephews of my mother as my sister shall appoint – Sister predeceases testator without having made appointment – Five nieces and nephews survive sister but three of them predecease testator.

LEGISLATION CITED : G L Certoma, Law of Succession in New South Wales, (3rd ed, 1997) 192

PARTIES : Kenneth Brian Feltham as Executor of the Estate of the Late John Webber Venn (P)

FILE NUMBER(S) : SC 2003/06

COUNSEL : C M Harris SC (P)

SOLICITORS : Russell Kelly & Associates (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 22 OCTOBER 2007

2003/06 KENNETH BRIAN FELTHAM as Executor of the ESTATE OF THE LATE JOHN WEBBER VENN JUDGMENT 1 HIS HONOUR: In these proceedings the executor has sought judicial advice concerning the incidence of a gift in the will of John Webber Venn, who died on 12 December 2004. Probate of the will was granted to the plaintiff on 24 November 2005. The relevant gift contained in clause 8(c) of the will was of three tenths of the net proceeds of the testator's estate to "such of the nieces and nephews of my mother and in such shares as my sister Doreen Kathleen Feltham shall appoint". Doreen Kathleen Feltham indeed predeceased the testator, having died on 16 March 2001. Search has not located any appointment made by her for the purposes of clause 8(c) of the will prior to her death. 2 As to whether or not her death before that of the testator destroyed the effect of clause 8(c) or what its effect should be in the events which happened was the subject of judicial advice given in these proceedings by Windeyer J on 5 June 2006. The advice given by his Honour was in the following terms: "That on the assumption the donee of the power made no appointment under her will and that proper searches have been made for any appointment by deed, then the gift under Clause 8(c) of the will of the deceased should be divided equally among the nieces and nephews of the deceased but reserving if necessary the decision as to whether the class closed on death of the testator or on death of the donee of the power."