Slack-Smith v Slack-Smith & Ors [2009] NSWSC 847

New South Wales Supreme Court

CITATION : Slack-Smith v Slack-Smith & Ors [2009] NSWSC 847

HEARING DATE(S) : 19 August 2009

JUDGMENT DATE : 19 August 2009

JURISDICTION : Equity

JUDGMENT OF : Windeyer AJ

DECISION : Gift held to be vested.

CATCHWORDS : WILLS - Probate – Construction of wills - Will giving life estate in shares to widow and the remainder to sister of widow - Sister of widow predeceased the life tenant – Whether interest in the remainder vested absolutely or vested subject to defeasance or was contingent upon surviving the life tenant.

CATEGORY : Principal judgment

Alan Richard Slack-Smith (P) Victor John Slack-Smith (D1) PARTIES : Thelma Margaraet Phelps (D2) Phillip Charles Robert Slack-Smith (D3) Leah Evelyn Carolan (D4)

FILE NUMBER(S) : SC 1795/09

L J Ellison SC and M Meek (P) COUNSEL : J Needham SC and D Williams (D1&3) A Rogers (D2) J E Armfield (D4)

Lee & Lyons (P) SOLICITORS : Collaery Lawyers (D1&3) Doyle & Associates (D2) R J O'Halloran & Co (D4)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER AJ

WEDNESDAY, 19 AUGUST 2009

1795/09 ALAN RICHARD SLACK-SMITH v VICTOR JOHN SLACK-SMITH & ORS JUDGMENT 1 HIS HONOUR: Ivan James Slack-Smith died on 18 July 1969. He left a will dated 31 January 1963. Probate of that will was granted to his widow and a brother Evyn Jack Slack-Smith on 3 March 1970. 2 There have been various appointments of trustee as a result of deaths or age of the original executors and trustees and the present trustees of the will are Victor John Slack-Smith and Thelma Margaret Phelps, the first and second defendants to these proceedings. 3 The third defendant in the action is Phillip Charles Robert Slack-Smith and he and the first defendant have been appointed to represent the estate of Ellen Margaret Slack-Smith who died on 16 June 2004. The first and third defendants are the children of Ellen, and the plaintiff is also one of her children. The widow of the deceased is still living aged 102. 4 There have been various vicissitudes this morning in connection with the proper constitution of these proceedings but, as a result of representative orders made, the estate of Ellen is now represented. There has been no grant of probate of her will which is said to have been made on 3 November 1993, and there is of course no evidence that it is a valid will or that it is her last will. 5 The fourth defendant has been appointed to represent those persons who would be entitled on intestacy or partial intestacy in the estate of the said Ivan James Slack-Smith, deceased, if the result of these proceedings is that it were held that there was a partial intestacy in his estate. 6 By his will, to which I have referred, Ivan James Slack-Smith - whom I will refer to as 'the deceased' - after making various administrative provisions, provided the following in paragraphs 5, 6 and 7 of his will. " 5 I DIRECT my Trustees to hold the shares entitling me to occupy the flat number 3 in Corowa Home Units Pty Limited at 89 Ocean Beach Road, Manly, UPON TRUST to allow my Wife to reside therein during her lifetime AND UPON the death of my said Wife I GIVE DEVISE AND BEQUEATH such shares UNTO the Sister of my Wife namely ELLEN MARGARET SLACK-SMITH absolutely.