Estate of JA Gilmore, deceased [2014] NSWSC 1263

Supreme Court New South Wales

Medium Neutral Citation: Estate of JA Gilmore, deceased [2014] NSWSC 1263 Hearing dates: 4 and 12 September 2014 Decision date: 16 September 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: 1. ORDER that the order made on 4 September 2014 for the separate determination of the claims for relief made in prayers 1A and 1B of the Amended Summons (filed 12 September 2014) be confirmed. 2. Upon the hearing of the claims for relief made in prayers 1A and 1B of the Amended Summons (pursuant to order 3 of the orders made on 4 September 2014 as confirmed by these orders): DECLARE that, on the proper construction of the Will dated 14 August 2007 of the late John Alfred Gilmore ("the deceased"), probate of which was granted by the Court to the defendant in proceedings numbered 2014/103861, the "right of occupancy" granted to the plaintiff by clause 6 of the Will is a proprietary right to "occupy" the main house on "Tattykeel" (and the adjoining area described in clause 6) by herself or a tenant, in the nature of a life estate, including a right to let out the land, and to receive rents and profits of the letting out of the land. 3. ORDER that the operation of Caveat No. AI639809 be extended until further order. 4. RESERVE the costs of the plaintiff's notice of motion filed 26 August 2014 and the costs of the separate determination of the claims for relief made in prayers 1A and 1B of the Amended Summons. 5. ORDER, subject to further order, that the proceedings be listed before the Family Provision List Judge for directions on 17 October 2014. 6. ORDER that these Orders be entered forthwith. Catchwords: Wills - Construction - Gift in Will of "continued right of occupancy" of matrimonial home for as long as occupant requires - Entitlement to "occupy" in person or a tenant - Proprietary interest in the nature of a life estate - Entitlement distinguished from a personal right of residence, a mere licence. Legislation Cited: Real Property Act 1900 NSW, ss 74J and 74K Succession Act 2006 NSW, s 59(1)(c) Cases Cited: Batey v Potts [2004] NSWSC 606 at [26] Binetter v Dunkel (unrep, 28 May 1993) Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed - In Liquidation) (1993) 43 FCR 510 at 539-542. Fell v Fell (1922) 31 CLR 268 at 273-275 Re Estate of Lawrence (Dec'd); Hatzantonis v Cox; Cox v Lawrence [2003] NSWSC 914 at [17] Perpetual Trustees WA Ltd (as Executor of the Estate of Darvell) v Darvell [2001] WASC 123 at [5]-[6] Re Estate of Lawrence (Dec'd) [2003] NSWSC 914 at [17] Warton v Yeo [2014] NSWSC 494 at [52]-[54 ] White v Arizon Pty Limited [2003] NSWSC 1051 at [20] Texts Cited: Spencer Bower and Handley, Res Judicata (Lexis Nexis, London, 4th ed, 2009), para 9.38 Category: Principal judgment Parties: Judith Gilmore (Plaintiff) Martin Andrew Gilmore (Defendant) Representation: Counsel: AL Hill (Plaintiff) L Ellison SC (Defendant) Solicitors: Bird Legal (Plaintiff) King Cain (Defendant) File Number(s): 2014/00173414 Publication restriction: Nil