NSW Trustee & Guardian v Bensley & Ors [2012] NSWSC 655

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee & Guardian v Bensley & Ors [2012] NSWSC 655 Hearing dates: 4 June 2012 Decision date: 04 June 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: 1. Declare that the gift of the "property [x/x-x xxx xxxxxx], Hornsby to my niece GLYNIS BENSLEY" per Clause 6 of the Will of the late Dawn Bensley dated 30 September 2009 has adeemed and, as such, the proceeds of sale of the property located at [x/x-x xxx xxxxxx], Hornsby passes into the rest and residue of the Estate to be dealt with in accordance with Clause 8 of the Will to the benefit of the First, Second and Third Defendants in the proportions nominated therein; 2. Order that the claim for relief in paragraph 2 of the summons be dismissed. 3. Order that the Plaintiff's costs of the Summons be paid Catchwords: WILLS, PROBATE AND ADMINISTRATION - construction and effect of testamentary disposition - ademption of specific bequest - whether change of substance of asset adeems gift - where valid sale of specifically bequeathed property during deceased's lifetime - held proceeds of sale of property to be dealt with as residue of estate

WORDS AND PHRASES - ademption Legislation Cited: Conveyancing Act 1919 NSW Trustee and Guardianship Act 2009 Protected Estates Act 1983 Powers of Attorney Act 2003 Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39 Category: Principal judgment Parties: NSW Trustee & Guardian as executor of the estate of the late Dawn Bensley (Plaintiff) Glynis Catherine Bensley (1st Defendant) Claire Connelly (2nd Defendant) Patrick Bensley (3rd Defendant) Representation: Counsel: M Lawson (Plaintiff) Solicitors: Public Trustee NSW (Plaintiff) File Number(s): 2012/71994