Hay v Aynsley [2013] NSWSC 1689

Supreme Court New South Wales

Medium Neutral Citation: Hay v Aynsley [2013] NSWSC 1689 Hearing dates: 12 September and 15 November 2013 Decision date: 15 November 2013 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: (1) Declare that, in the events which have happened, the gift by the deceased of the property at 64 Bayview Street, Soldiers Point (being Lot 2 in DP 215680) to the late David Ronald Brook in clause 8 of her Will dated 31 May 2006, has adeemed by virtue of the sale of the property on or about 19 January 2011, and any remaining proceeds of sale, together with any interest accrued thereon, form part of the residuary estate of the deceased to be divided as provided for in clause 10 of the Will. (2) Order that the costs of all parties be paid out of the estate of the deceased. (3) Order that the costs of the plaintiff and the first and second defendants be assessed on the indemnity basis. (4) Order that the costs of the third, fourth and fifth defendants be assessed on the ordinary basis, not limited to the costs of a submitting appearance. Catchwords: Wills, probate and administration - Construction of Will - Ademption of a gift by sale under an enduring power of attorney - Intended beneficiary predeceased deceased - Succession Act 2006 NSW, s 41 conferred standing on issue of intended beneficiary to contend that the Powers of Attorney Act 2003 NSW, s 22 applied to save gift from complete failure - Section 22 not applicable on proper construction of the Powers of Attorney Act 2003, s 6 - Ademption under general law. Legislation Cited: Conveyancing Act 1919 NSW s 163B NSW Trustee and Guardian Act 2009 NSW Powers of Attorney Act 2003 NSW, ss 6(1), 6(2) and 6(5) 6(5), s 36 Succession Act 2006 NSW, s 41 Wills Probate and Administration Act 1898 NSW Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39 at [151] and [175]-[176] Texts Cited: - Category: Principal judgment Parties: Plaintiff: Louise Anne Hay First Defendant: David Jesse Aynsley Second Defendant: Peter John Brook Third Defendant: Timothy John Brook Fourth Defendant: Lisa Marie Brook Fifth Defendant: Gregory David Brook Representation: Counsel: Plaintiff: RD Wilson SC First & Second Defendants: J Heazlewood Third, Fourth & Fifth Defendants: K Conte-Mills (12 September 2013 only) Solicitors: Plaintiff: Coleman & Greig Lawyers First & Second Defendants: Barber & Massey Third, Fourth & Fifth Defendants: Lewarne & Goldsmith File Number(s): 2013/00128627