Lockrey v Ferris [2011] NSWSC 179

Supreme Court New South Wales

Medium Neutral Citation: Lockrey v Ferris [2011] NSWSC 179 Hearing dates: 9 March 2011 Decision date: 18 March 2011 Before: Hallen AsJ Decision: Upon the true construction of the Will, all of the shares referred to in Clause 3(d), which would have passed to Mr Stone had he not predeceased the deceased, passes to the Defendant absolutely; the Cross-Claim is dismissed; the Plaintiff's costs calculated on the indemnity basis, and the Defendant's costs calculated on the ordinary basis, should be paid out of the estate Catchwords: Succession - Will construction - claim for rectification of Will Legislation Cited: Civil Procedure Act 2005 Probate & Administration Act 1898 Succession Act 2006 Cases Cited: ANZ Trustees Limited v Hamlet & Ors [2010] VSC 207 Arnott v Leong [2009] NSWSC 187 Coorey v Coorey (NSWSC, 22 February 1986, unreported) Bentinck v Duke of Portland (1877) 7 Ch D 693 Chaplins' Trust, re (1863) 12 WR 147 Mortensen v State of New South Wales, (NSWCA, 12 December 1991 unreported) The Estate of Cecil Douglas Brisbane (Powell J, 19 June 1992, unreported) Estate of Dippert [2001] NSWSC 167 Estate of Huzar, re [1999] NSWSC 388 Estate of Spinks; Application of Mortensen and Eassie, re (NSWSC, Needham J, 22 August 1990, unreported) Fairbairn v Varvaressos [2010] NSWCA 234 Fell v Fell [1922] HCA 55 Hatzantonis v Lawrence [2003] NSWSC 914 In the Estate of Epheser Deceased [2008] SASC 311 Kingsbury v Walter & Ors [1901] AC187 Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002 Muir v Winn [2009] NSWSC 857 Murdocca v Murdocca (No 2) [2002] NSWSC 505 Peacock deceased, In re; Midland Bank Executor and Trustee Co Ltd v Peacock [1957] Ch 310 Pearks v Moseley (1880) 5 App Cas 714 Peoples v Simpson [2005] NSWSC 355 Perpetual Trustee Co Ltd v Wright, Re Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18 Rawack v Spicer [2002] NSWSC 849 Swain, re [2008] NSWSC 1343 Tompkins v Simmons & Ors (1931) 44 CLR 546 Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 Woods, in re [1931] 2 Ch 138 Texts Cited: Black's Law Dictionary, 6th Edition, (1991) David M Haines, Construction of Wills in Australia (2007) Halsbury's Laws of Australia Vol 50 G L Certoma, The Law of Succession in New South Wales (3rd ed, 1997) Williams on Wills, C.H Sherrin, R F D Barlow and R A Wallington (eds), Williams on Wills (7th ed, 1995) Category: Principal judgment Parties: John Arthur Lockrey as executor of the estate of the late Henry Lloyd Brown (Plaintiff) Bruce Alexander Ferris (Defendant) Representation: Counsel: Mr G Van Der Vlag (Plaintiff) Mr D Liebhold (Defendant) Mr D Carbone (Sol) (Affected Person) Solicitors: Bollinger Law (Plaintiff) Owen Hodge Lawyers (Defendant) File Number(s): 2010/144347