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. 2 The deceased had four children, namely, the executors, who are the plaintiffs in this action, Raymond Brian Fisher, and Edmund Sydney Fisher. Edmund Sydney Fisher died on 7 December 1984. The other three sons survived their mother. Edmund Sydney Fisher had two children, who are the defendants in this action. One was a child of the marriage of the said Edmund Fisher with Betty Ferguson, the other was a child of the marriage of Edmund Fisher with Frances Marion McCaught. Thus the defendants are half-brothers. 3 The question, then, is whether or not the defendants are entitled to take equally between them a one quarter share in the estate of their grand-mother. As I understand it, the law in these cases is accepted to have been decided in the case of Christopherson v Naylor, [1816] 1 Mer 320; 35 ER 693. In that case there was a gift to: [E]ach and every the child and children of my brother and sisters which shall be living at the time of my death; but, if any child or children of my said brother and sisters shall happen to die in my life-time, and leave issue, then the legacy or legacies hereby intended for such child or children so dying, shall be for his, her, or their issue. … 4 It was determined that this was a case where the issue took only by substitution and not with their parent. The Master of the Rolls, Sir William Grant said at 695 of the English Reports: The question, in this case, does not depend on the words ' shall happen to die in my life-time'. Though according to strict construction, importing futurity, those words might have been understood as speaking of the event at whatever time it may happen. But the context necessarily excludes this construction. The nephews and nieces are, here, the primary legatees. Nothing whatever is given to their issue, except in the way of substitution. In order to claim, therefore, under the will, these substituted legatees must point out the original legatees in whose place they demand to stand. But, of the nephews and nieces of the testator, none could have taken besides those who were living at the date of the will. The issue of those who were dead at that time can, consequently, shew no object of substitution; and to give them original legacies would be, in effect, to make a new will for the testator. 5 That statement has been accepted as correct, as far as I know, in all the usual English text books, including Hawkins on the Construction of Wills, 5th Edition, p 337, and Jarman on Wills, 7th Edition, vol 2, p 1309. 6 The difficulty in this case is that the clause provides that the grandchildren take by substitution the share which his or her parents would otherwise have taken. The deceased son, Edmund, would not have taken anything under cl 3, therefore, there are no funds which his children can take by way of substitution. I should add that if it is admissible, the evidence of Stewart Norman Fisher in his affidavit of 19 June 2007 is supportive of that, in that he says his mother said that all she wanted to do in changing her will was to remove Raymond as an executor, as he lived too far away. Under that will the estate was given to the three sons then surviving, in other words, not including Edmund. It is true that the will the subject of the grant did provide a substitution clause which did not exist before, and to that extent it is different, but I do not think that takes the matter any further. 7 Answer para 1 of the summons "no". Order the costs of the parties be paid out of the estate, those of the plaintiff on the indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.