Warton v Yeo [2014] NSWSC 494

Supreme Court New South Wales

Medium Neutral Citation: Warton v Yeo [2014] NSWSC 494 Hearing dates: 22 April 2014 Decision date: 29 April 2014 Jurisdiction: Equity Division Before: Hallen J Decision: Order, by consent, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rules 7.6(1)(c) and 7.6(2)(c), that the Plaintiffs represent the class of persons who are step-children of Ailsa Josephine Lamond, the sister of the deceased, for the purpose of determining the proper construction of Clause 6(b) of the Will dated 25 August 1994 of the deceased. Declare that, upon the proper construction of Clause 6(b) of the Will, dated 25 August 1994, of Justin Huntley Augustine Callaghan, the whole of the share of the estate referred to therein passes to the deceased's nephew, David Lamond, the only child of the deceased's sister, Ailsa Josephine Lamond, absolutely. By consent, order that the costs of each party, calculated on the indemnity basis, be paid out of the part of the estate that has been retained. Order that the costs of the second Defendant of entering a submitting appearance should also be paid out of that part of the estate. Catchwords: Succession - Will construction - Gift to sister of deceased - Substitutionary gift to "such one of her children as shall survive me and if more than one in equal shares" - Whether "children" of sister includes "step-children" of sister Legislation Cited: Probate and Administration Act 1898 (NSW) Succession Act 1981 (Qld) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allgood v Blake (1873) LR 8 Ex 160 Bagot's Executor and Trustee Co Ltd v Minda Home Inc, Julia Farr Centre Inc, Ruth Loveday Morcom, Doris Lorna Pointon, Bryan Leonard Canty, Executor Trustee Australia Ltd and IOOF Australia Trustees Ltd (1994) 62 SASR 596 Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68 Coorey v Coorey (Supreme Court (NSW), Powell J, 22 February 1986, unrep) Estate of Jack Alexander Warren [2011] NSWSC 104 Fairbairn v Varvaressos [2010] NSWCA 234 Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 Harris v Ashdown (1985) 3 NSWLR 193 Hatzantonis v Lawrence [2003] NSWSC 914 Higgins v Dawson [1902] AC 1 Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213 Muir v Winn [2009] NSWSC 857 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 Perrin v Morgan [1943] A.C.399 Thomson v Down (2012) QSC 171 Thomson v Thomson [2008] VSC 375 Texts Cited: The Macquarie Dictionary (3rd Ed., 2007) J R Martyn, M Oldham, A Learmonth & C Ford, Theobald on Wills, (17th ed, 2010, Sweet & Maxwell/ Thomson Reuters) Category: Principal judgment Parties: Veronica Ann Warton (first Plaintiff) Gregory Charles Lamond (second Plaintiff) Richard Edmonds Yeo (first Defendant) David John Lamond (second Defendant) File Number(s): xx