The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97

Supreme Court New South Wales

Medium Neutral Citation: The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97 Hearing dates: 2 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Equity Before: Slattery J Decision: Judicial advice given. Gifts of residue to named persons are not a class gift, such that gifts to individual named beneficiaries have lapsed. One half of the lapsed residuary gift (being 40 per cent of the residue) passes to the estate of the testator's brother who survived the testator, and the other half (being the other 40 per cent of the residue) pass under Succession Act 2006, s 129 to the two children of the testator's sister. Catchwords: TRUSTS AND TRUSTEES – judicial advice – Trustee Act 1925, s 63 – testator leaves residue of his estate to five named beneficiaries – four of the five beneficiaries pre-decease the testator – whether the gift to the five named residuary beneficiaries under the testator's will is a class gift, such that if one member of the class were to pre-decease the testator the gift would survive and other members of the class would take or whether the gift was to five named individuals – if there is a gift of residue to five named individuals which partially fails upon intestacy, what persons, in what proportions are entitled upon intestacy – operation of Succession Act 2006, s 129 considered. Legislation Cited: Succession Act 2006, ss 42, 129 Trustee Act 1925, s 63 Cases Cited: Arnott v Leong [2009] NSWSC 187 Bain v Lescher 59 E.R. 926; (1840) 11 Sim. 397 Booth v Alington (1858) 27 L J Ch 177 Cresswell v Cheslyn (1762) 2 Ed. 123 Ettricke v Ettricke (1767) Amb. 656 Fell v Fell (1922) 31 CLR 268 Gordon Salier v Robert Angius [2015] NSWSC 853 In Re-Selby (deceased); Cole v Cole [1952] VLR 273 Oakley v Wood (1868) 37 L.J. Ch. 28 Perkins v Baynton (1781) 1 B.C.C. 118 Sykes v Sykes (1867) LR 4 Eq 200 Texts Cited: John G Ross Martyn et al, Theobald on Wills (Sweet & Maxwell, 18th ed, 2016) Category: Principal judgment Parties: Plaintiff: Dawn Smith Defendants: Michele Carolyn Worthington and Diane Mary England Representation: Counsel: