John Andrew Tanner v James Colin Tanner

2025/00480869

SUCCESSION – in 2001, Hilda Marion Tanner (the deceased) and her husband (the parents of the appellant and respondents) were the registered proprietors of property known as the Blandford Property – by a memorandum of transfer dated 16 January 2001, the parents transferred the Blandford Property to the appellant and his wife (the Transfer) – the signed proforma “Transfer” document recorded that the transferors acknowledged receipt of the consideration of $100,000, though there was no further evidence adduced that any consideration was paid – cl 3(c) of the deceased’s will dated 16 December 2021 provides that the rest and residue of her estate will be divided in equal shares between each of the appellant, the first respondent, and the second respondent – cl 4 provides that any sum advanced by the deceased during her lifetime to the appellant shall be brought into account and taken in satisfaction to that extent of the gift in the appellant’s favour in cl 3(c) – cl 5 provides that the Blandford Property shall also be treated as an advancement to the appellant and shall be brought into account and taken in satisfaction to that extent of the gift in his favour in cl 3(c) – the primary judge held that the scheme of the will disclosed an intention of the deceased to provide for her children equally, however that what is “equal” is only to be arrived at once regard is had to the whole of the structure of the will, with cl 3(c) providing for a starting point, and cll 4 and 5 providing for the extent to which the provision in cl 3(c) is qualified – whether the primary judge erred in holding that the Court was not required to decide whether the Transfer was a gift or advancement to the appellant – whether the primary judge erred in making various factual findings as to the Transfer – whether the primary judge erred in finding that the Transfer was an advancement or gift or settlement to the appellant such as to give rise or effect to the “hotchpot doctrine” in construing the terms of the deceased’s will – whether the primary judge erred in law in not accepting the evidence of the Transfer document as “uncontested evidence” of the receipt by the parents of $100,000 – whether the primary judge erred in holding that cl 3 of the will was qualified by cll 4 and 5.

Estate of Tanner [2025] NSWSC 1078