Straughen-Nicholson v Straughen

1. [1]

   HER HONOUR: In this matter, by summons filed 6 August 2019, the plaintiff (Ms Emma Straughen-Nicholson) seeks a determination as to the construction of the last Will dated 22 August 2014 of the late Mr Roy Straughen (the deceased). The executor of the deceased’s estate (Ms Vikki Straughen), who is one of the three named beneficiaries, has filed a submitting appearance. The other surviving beneficiary (Mr Rodney Straughen) was notified of the application and does not seek to be heard on the application.

Background

1. [2]

   The deceased died on 3 April 2019. He was survived by two of his adult children, Rodney Straughen and Vikki Straughen. The third of the deceased’s three children, Karen Straughen (the mother of the plaintiff), predeceased him. Her death occurred between 17 and 18 January 2019. The cause of her death has not been established. Karen Straughen never married, and her only issue was Emma Straughen-Nicholson, the plaintiff.

2. [3]

   By his last Will, the deceased appointed Vikki Straughen as executor and, by cll 5, 6, and 7, left his whole estate, including real property at Lalor Park and residue, to:

3. [4]

   When the matter was before me for directions in the applications list, Counsel for the respective parties agreed that the matter would be determined on the papers without the need for oral argument. Accordingly, I have proceeded on that basis, having taken into account the affidavit sworn 2 September 2019 by Vikki Straughen and the brief written submissions filed on this application on behalf of the plaintiff.

Relevant provision

1. [5]

   Section 41 of the Succession Act 2006 (NSW) provides that:

Submissions

1. [6]

   It is submitted that, in the present case, s 41 applies because: the deceased made a disposition of property to a person who is his issue, (i.e., Karen Straughen, the “original beneficiary” for the purposes of the section); under the deceased’s Will, Karen Straughen’s interest in the property did not come to an end before her death; the disposition is not a disposition of property without limitation as to remoteness; and Karen Straughen did not survive her father for 30 days.

2. [7]

   Thus, it is submitted, the effect of s 41(2) is that Emma Straughen-Nicholson, as the issue of Karen Straughen, who has survived the testator (her maternal grandfather) by 30 days, takes her mother’s share of the property in place of her mother, as if her mother had died intestate, leaving only issue surviving. It is submitted that no contrary intention appears in the Will.

Determination

1. [8]

   The issue for determination is straightforward (albeit that there has been no contradictor on the present application).

2. [9]

   The gifts to the deceased’s children are unconditional and are not expressed to be dependent upon them being alive at the time of the deceased’s death. The gifts are not without limitation as to remoteness, being limited to the named issue (the three children) of the deceased (and not to the issue of the testator of all degrees of remoteness).

3. [10]

   Therefore, as Karen Straughen did not survive her father for 30 days, the requirements of s 41(1) are satisfied and the operation of s 41(2) has the effect that Emma Straughen-Nicholsontakes her mother’s one-third share of the estate (including the Lalor Park property and residue of the estate).

4. [11]

   That conclusion (and the making of an appropriate declaration) will determine the proceedings in this Court. The plaintiff (Emma Straughen-Nicholson) has sought an order that costs of the present application be reserved. It is not apparent for what purpose such an order is sought. If there is to be any such application as to costs it should be made promptly; for the time being I will simply make no order as to costs.

   1. (1)

      Declare that on the true construction of the last Will dated 22 August 2014 of the late Roy Straughen, who died on 13 April 2019, and pursuant to the operation of s 41(2) of the Succession Act 2006 (NSW), the plaintiff (Emma Straughen-Nicholson), as the only issue of Karen Anne Straughen who died between 17 and 18 January 2019, takes the share of Karen Anne Straughen under cll 5, 6 and 7 of the Will.

   2. (2)

      Subject to any application made as to costs within 14 days there be no order as to costs.