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Succession Law News, March 2011

Have you thought about updating your will as you and your proposed beneficiaries get older?

In the recent case of Fairbairn and Varvaressos, Mr. Varvaressos (George) died in 1961 aged 79 with a will dated in 1960. George was predeceased by his wife but had five children: Stephen, Demetrius, Iris, Kitty and Joan. Demetrius died in 1988 and Iris died in 2002. Kitty was alive but had no children at the time of the proceeding and had never married. Joan was the appellant.

George's will stipulated that Kitty was to have the use and benefit of a house, property, furniture and chattels at Rose Bay in NSW during her life and should the house be sold the proceeds would be held in two equal shares to go to:

  • Pay the income to Kitty during her life, the capital and income to go to her living children after her death at the age of 21. If she had no children, to be held on trust in equal shares as tenants in common for Demetrius and Iris in equal shares
  • Pay the other share to Iris and Demetrius in equal shares.

The residue of George's estate was left in equal shares to Iris, Kitty, Demetrius and Joan. The issue was what would happen to the house once Kitty died as Demetrius and Iris had both predeceased her and Kitty had no children.

The primary judge held that at Kitty's death, the interests of Demetrius and Iris would form part of their own estates. The Court of Appeal upheld this decision, looking at the will in its entirety to ascertain the probable intention of George at the time of writing the will. The Court noted that the will in its entirety favoured Kitty, Iris and Demetrius, especially considering the house at Rose Bay was the largest asset, and of his 5 children only four were mentioned in the will. Nothing in the will suggested the Demetrius and Iris would only receive their shares should they be alive.

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