Love v Williams [2019] NSWSC 555

Love v Williams [2019] NSWSC 555

The Will was not ambiguous on its face or in light of surrounding circumstances. On its proper construction, the terms "descendants" and "children" include persons adopted into the Testator's family by siblings of the Testator and do not include biological children of siblings who have been adopted out of the Testator's family. However, the Instruction Document and solicitor's Notes showed that the Will did not give effect to the Testator's instructions and intentions concerning biological children of siblings adopted out of the family. Rectification under s 27 of the Succession Act 2006 (NSW) was therefore appropriate so that biological children of siblings of the Testator who had been...

Jurisdiction
Australia
Judgment Date
21 May 2019
Procedural Posture
Succession Proceedings in Equity Concerning Construction and Rectification of a Will / Principal Judgment on Further Amended Summons; Executor Directed to Bring in Short Minutes of Orders
Outcome
Executor directed to bring in short minutes of orders to reflect the conclusions of the judgment.
Legal Topics
['construction of Will' 'meaning of Descendants and Children' 'adopted Out Children' 'adopted in Children' 'rectification of Will' 'class Representation' 'costs of Will Construction Suit']
['succession' 'equity' 'wills and Estates' 'adoption'] ['construction of Will' 'meaning of Descendants and Children' 'adopted Out Children' 'adopted in Children' 'rectification of Will' 'class Representation' 'costs of Will Construction Suit']

Case Brief

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Procedural Posture

Succession Proceedings in Equity Concerning Construction and Rectification of a Will / Principal Judgment on Further Amended Summons; Executor Directed to Bring in Short Minutes of Orders

Legal Issues

  1. 1 ['Whether the term "descendants" in the definition of "Issue" in clause 2 of the Will includes biological descendants of siblings who have been adopted out of the Testator\'s family or persons adopted into the Testator\'s family.' 'Whether the term "children" in clauses 11, 12.1 and 12.2 of the Will includes biological children adopted out of the Testator\'s family or persons adopted into the Testator\'s family.' 'Whether the Will should be rectified under the Succession Act 2006 (NSW) if adopted out biological children are not included on the proper construction.' 'Whether infelicities in clauses 6.9, 10.1.1, 10.1.2, 10.1.3, 10.1.4, 10.1.5 and 12.2 should be corrected or rectified.' "Whether costs should be paid from the estate or borne by the Executor's solicitors."]

Ratio Decidendi

The Will was not ambiguous on its face or in light of surrounding circumstances. On its proper construction, the terms "descendants" and "children" include persons adopted into the Testator's family by siblings of the Testator and do not include biological children of siblings who have been adopted out of the Testator's family. However, the Instruction Document and solicitor's Notes showed that the Will did not give effect to the Testator's instructions and intentions concerning biological children of siblings adopted out of the family. Rectification under s 27 of the Succession Act 2006 (NSW) was therefore appropriate so that biological children of siblings of the Testator who had been...

Court Disposition

Executor directed to bring in short minutes of orders to reflect the conclusions of the judgment.

Orders

  • ['Declarations should be made that, on the proper construction of the Will, the terms "descendants" and "children" include persons adopted by siblings of the Testator into the family of the Testator.' 'Declarations should be made that, on the proper construction of the Will, the terms "descendants" and "children" do...