NSW Trustee and Guardian v Malone [2011] NSWSC 382

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Malone [2011] NSWSC 382 Hearing dates: 4 May 2011 Decision date: 04 May 2011 Jurisdiction: Equity Division Before: Windeyer AJ Decision: 1. Questions in the summons answered as follows: a) Paragraph 1(a), (b), (c), (d), (e), (f), (g), (h), (i) - no. b) In relation to paragraph 2, declare upon the true construction of the will dated 31 August 2006 of Patricia Flynn, deceased, and in the events which have happened, the gift of "my property and home" under the heading of "Gifts" in the said will is a gift to Michael Perroux upon trust, to be shared by him with his sisters Denise Perroux, Suzanne Malone, Narelle Perroux and Margaret Perroux as they think fit; and, if they do not agree, then upon trust for the five in equal shares as tenants in common. c) Questions in paragraphs 3-5 not answered. d) Paragraph 6 - no. 2. Costs of all parties be paid out of the estate of the deceased; those of the plaintiff on the indemnity basis. Catchwords: SUCCESSION - construction of will - gift of home to A to be shared with his sisters as they see fit - whether absolute gift to A; or gift to the five in shares as they agree and failing agreement in equal shares; or gift to A but to share right of use or occupation with his sisters as they agree; or gift of the legal estate to A to be held upon trust for A and his sisters in such shares as they agree and failing agreement in equal shares - held the last was correct Category: Principal judgment Parties: NSW Trustee and Guardian (plaintiff) Suzanne Patricia Malone (first defendant) Michael Perroux (second defendant) Thekla Samuel (third defendant) Peter Allmond (fourth defendant) Marist Mission Centre, Hunters Hill (fifth defendant) Mary (Molly) Perroux (sixth defendant) Keith Perroux (seventh defendant) Representation: P Blackburn-Hart SC (plaintiff) G Carolan (first defendant) M Gorrick (second defendant) Clinch Long Letherbarrow Lawyers (plaintiff) Thorburn & Marshall (first defendant) Teece Hodgson & Ward (second defendant) File Number(s): SC 2010/350204