Fisher v Fisher [2007] NSWSC 1526

New South Wales Supreme Court

CITATION : Fisher v Fisher [2007] NSWSC 1526

HEARING DATE(S) : 27 August 2007

JUDGMENT DATE : 27 August 2007

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Windeyer J at 1

EX TEMPORE JUDGMENT DATE : 27 August 2007

DECISION : Will construction - no right to take as substituted beneficiaries

CATCHWORDS : WILLS PROBATE AND ADMINSTRATION - construction of will - gift to children "who survive me" - substitution of grandchildren in case of children dying in lifetime of testatrix - one son had died before will made - whether substitution applied

Christopherson v Naylor [1816] 1 Mer 320; 35 ER 693 CASES CITED : Hawkins on the Construction of Wills 5th ed p337 Jarman on Wills 7th ed vol 2, p1309

Colin John Fisher (First Plaintiff) PARTIES : Stuart Norman Fisher (Second Plaintiff) Kevin Fisher (First Defendant) Troy Fisher (Second Defendant)

FILE NUMBER(S) : SC 110072/07

K F Morrisey (Plaintiffs) COUNSEL : L Ellison SC (First Defendant) No appearance (Second Defendant)

Coode & Corry (Plaintiffs) SOLICITORS : Bateman & Battersby (First Defendant) No appearance (Second Defendant)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

MONDAY 27 AUGUST 2007

110072/07 COLIN JOHN FISHER & ORS v KEVIN FISHER & ORS THE ESTATE OF JEANETTE RIEKE FISHER

JUDGMENT

1 HIS HONOUR: Jeanette Rieke Fisher died on 14 August 2006. She left a will dated 14 July 2000. Under that will she appointed two of her sons, Colin Fisher and Stewart Fisher, as executors. Clause 3 of the will, which disposed of the whole estate, is as follows: I GIVE DEVISE AND BEQUEATH to my trustees, the whole of my Estate of whatsoever nature and wheresoever situate UPON TRUST to pay my funeral and testamentary expenses and debts and all death probate estate succession and other like duties payable in respect of my estate and to hold the residue then remaining ("my residuary estate') UPON TRUST to such of my children who shall survive mean (sic) if more than one as tenants in common equally PROVIDED ALWAYS that if any child of mine shall die in my lifetime leaving a child or children living at my death then such child or children attaining the age of eighteen (18) years shall take by substitution and if more than one as tenants in common equally the share in my residuary estate which is his, her and their parent would otherwise have taken.