Reynolds v Bonnici [2017] NSWSC 828

Supreme Court New South Wales

Medium Neutral Citation: Reynolds v Bonnici [2017] NSWSC 828 Hearing dates: 11 November 2016 Decision date: 23 June 2017 Jurisdiction: Equity Before: Lindsay J Decision: DECLARE that the gifts in favour of the plaintiff (a former de facto partner of the deceased) for which the Will of the deceased provides were not adeemed by transactions effected by the deceased during his lifetime affecting his interests and those of the plaintiff. Catchwords: SUCCESSION – Wills, probate and administration – Ademption of testamentary gift – Presumption against double portions – Not applicable otherwise than to legacy for a child or particular purpose – Not generally applicable as between de facto partners without particularised purpose.

SUCCESSION – Wills, Probate and administration – Ademption of testamentary gift – Where presumption against double portions not available – Express ademption – Intention to adeem must be brought to knowledge of donee at time of acceptance of inter vivos gift.

EQUITY – Ademption – Types – Ademption of legacy by portions – Ademption of legacy given for particular purpose – Express ademption – Intention of donor – Knowledge of donee – Different criteria for different types of ademption. Legislation Cited: Family Law Act 1975 Cth NSW Trustee and Guardian Act 2009 NSW Powers Of Attorney Act 2003 NSW Succession Act 2006 NSW Superannuation Industry (Supervision) Act 1993 Cases Cited: Brown v Heffer (1967) 116 CLR 344 Fairweather v Fairweather (1944) 69 CLR 121 In re Everett; Executor Trustee and Agency Company of South Australia Limited v Everett [1917] SALR 52 In re Shields; Corbould-Ellis v Dales (1912) 1 Ch 591 Johnston v MacLarn [2001] NSWSC 932 Kirby v Allen (1998) 9 BPR [97734] Lake v Quinton [1973] 1 NSWLR 111 McBride v Hudson (1962) 107 CLR 604. Nagle v Corrigan (1948) 48 SR (NSW) 252 at 255 Parker v Dowling (1916) SR (NSW) 234 Plunkett v Bull (1915) 19 CLR 544 Pohlner v Pfeiffer (1964) 112 CLR 52 Public Trustee v Regan (1933) 33 SR (NSW) 361 Re Cameron [1999] Ch 286 Re Gibson [2014] 1 Qd R 553 Re Horrocks [1944] NZLR 314 Re Howes; Quinton v Howes [1971] 2 NSWLR 387 Re Morton [1963] VR 40 Re Sparrow, deceased [1967] VR 739 RL and NSW Trustee and Guardian (2012) 84 NSWLR 263 RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 Royal North Shore Hospital v Crighton-Smith (1938) 60 CLR 798 Zahra v Francica [2009] NSWSC 1206 Texts Cited: A text book of Roman Law" (Cambridge University Press, 3rd ed, 1975), WW Buckland Equity: Doctrine and Remedies Meagher, Gummow Equitable Ademption Within the Family (1987) 17 Western Australian Law Review 272, Neville Crago Snell's Equity (33rd ed, 2015) Equity (5th ed, 2015) Meagher, Gummow and Lehane NSW Law Reform Commission, Report 85 (April 1998), Uniform Succession Laws: The Law Of Wills, chapter 9.2 NSW Law Reform Commission Report 116 (April 2007), Uniform Succession Laws: Intestacy, Chapter 13 Category: Principal judgment Parties: Plaintiff: Narelle Jane Reynolds