Wardy v NSW Trustee and Guardian [2021] NSWCA 121 (04 June 2021) (Macfarlan JA at [1]; Meagher JA at [72]; White JA at [73])


Catchwords:


SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value

VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King

SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3