Finlay v Tucker [2015] NSWSC 560

Supreme Court New South Wales

Medium Neutral Citation: Finlay v Tucker [2015] NSWSC 560 Hearing dates: 13 & 14 October 2014 Date of orders: 14 May 2015 Decision date: 14 May 2015 Jurisdiction: Equity Division Before: Slattery J Decision: See paragraphs [122] - [124]. Catchwords: SUCCESSION – wills, probate and administration – construction and effect of testamentary disposition – construction of will – where executor had solely occupied estate property left to beneficiary before that beneficiary's death – whether will created a life estate or a right of residence for beneficiary – whether beneficiary was therefore responsible for expenses incurred in relation to estate property – whether payment of proceeds from sale of estate property to beneficiary authorised by will – whether alleged payments for maintenance of estate property were in fact made – whether beneficiary failed to earn income on estate property to detriment of subsequent beneficiaries – whether executor entitled to commission. Legislation Cited: Probate and Administration Act 1898, s 86 Cases Cited: Estate of JA Gilmore, deceased [2014] NSWSC 1263 Fell v Fell (1922) 31 CLR 268 Foley v Cannon (1936) 53 WN (NSW) 223 Guazzini v Pateson (1918) 18 SR (NSW) 275 Hyde v Holland [2003] NSWSC 733 In the Will of Henry Sherringham (1901) 1 SR (NSW) (B&P) 48 In the Will of James Greer (1911) 11 SR (NSW) 21 In the Will of Oddie [1976] 1 NSWLR 371 James v Commonwealth Bank of Australia (1992) 37 FCR 445 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Perpetual Trustees WA Ltd v Darvell [2001] WASC 123 Re Craig (1952) 52 SR (NSW) 265 Re Estate of Lawrence (deceased) [2003] NSWSC 914 Re Estate of Wilson, deceased (1987) 11 NSWLR 493 Re Hillier, Primrose v Kewley (1939) 39 SR (NSW) 71 Re Keenan; Ford v Keenan (1914) 30 WN (NSW) 214 Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 Texts Cited: RP Meagher, JD Heydon & MJ Leeming, , (4th ed 2002, LexisNexis, Butterworths). Category: Principal judgment Parties: First plaintiff: Tamara Jodie Finlay Second plaintiff: Andrew Ian Macdonald Third plaintiff: Gordon William Macdonald Fourth plaintiff: Megan Jane Magill Fifth plaintiff: Rebecca Michelle Spears Sixth plaintiff: Angela Leith Tucker Defendant: Warren Frederick Tucker Representation: Counsel: Plaintiffs: A. Scotting; Ms E. Arulrajah Defendant: M Pringle