Longmore v Longmore & Ors; The Estate of Jean Longmore [2018] NSWSC 90

Supreme Court New South Wales

Medium Neutral Citation: Longmore v Longmore & Ors; The Estate of Jean Longmore [2018] NSWSC 90 Hearing dates: 27 October 2017 Date of orders: 01 March 2018 Decision date: 01 March 2018 Jurisdiction: Equity Before: Slattery J Decision: The words in the testatrix's will, "between such of my children as survive me as tenants-in-common", express an intention to negative the operation of WPA Act, s 29. The costs of the plaintiffs may be paid out of the estate on the indemnity basis. The costs of the defendants may be paid out of the estate on the ordinary basis. Catchwords: SUCCESSION - Wills - Wills, Probate and Administration Act 1898, s 29 (WPA Act) - a child of a testatrix predeceased her leaving issue - gift of residue in the testatrix's will made "of the whole of my Estate equally" to the testatrix's children - gift expressed to be "between such of my children as survive me as tenants common" - unless displaced by a contrary intention, WPA Act, s 29 will apply to save the gift for a child who predeceases the testatrix and will preserve the gift for the issue of that predeceased child - whether the gift in the testatrix's will expresses a contrary intention for the purposes of s 29. Legislation Cited: Succession Act 2006, s 4, Schedule 1.3, Item 2(2) Succession Act 1981 (Qld) Wills Act 1958 (Vic), s 31 Wills Act 1997 (Vic), s 45 Wills, Probate and Administration Act 1898 Cases Cited: Bassett & Ors v Hall [1994] 1 VR 432 Burman v Burman [1998] QCA 250 Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Fell v Fell (1922) 31 CLR 268 Kavanagh v Reardon [2012] VSC 174 Perpetual Trustee Co Ltd v Wright & Ors; Re the Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18 Public Trustee of Queensland v Jacob & Ors [2006] QSC 372 Public Trustee of Queensland v Robertson &Murray [2000] QSC 301 Public Trustee of Queensland v Robertson [2005] 2 Qd R 444 Re King [1953] VLR 648 Public Trustee v Freeman; In Re Lathbridge, deceased (1958) VR 366 Re Macaudo [1993] 2 Qd R 269 Re Meredith [1924] 2 Ch 552 Re Trenfield ((unreported) Supreme Court of Queensland, 10 October 1986) Texts Cited: I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Lawbook Co) Professor H A J Ford in "Lapse of Devises and Bequests" (1962) 78 LQR 88 Category: Consequential orders (other than Costs) Parties: Plaintiff: Roseanna Thelma Longmore