Reinhard v Bell [2015] NSWSC 818

Reinhard v Bell [2015] NSWSC 818

In the context of clause 8(b) and the will as a whole, the construction treating "of" as retaining its ordinary wording was strained and unnatural, if not ungrammatical, and required reading in concepts such as descendants of any generation. The surrounding text showed that "them" and "those" referred to "such children of my said child". It was sufficiently clear that "of" was erroneously included when "or" was intended, so the gift should be construed as applying to those grandchildren then living or the children of those grandchildren then dead, taking their parent's share per stirpes and not per capita.

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Summons by Trustees Concerning Construction of Clause 8(b) of a Will / Hearing of Prayer 1; Principal Judgment
Outcome
Declaration made as to true construction of gift in will; plaintiffs' costs ordered to be paid out of the trust estate on an indemnity basis.
Legal Topics
['construction of Wills' 'typographical Error in Will' 'trustee Act Judicial Advice' 'real Estate Gifts Under Will']
['succession' 'trusts and Estates'] ['construction of Wills' 'typographical Error in Will' 'trustee Act Judicial Advice' 'real Estate Gifts Under Will']

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Procedural Posture

Summons by Trustees Concerning Construction of Clause 8(b) of a Will / Hearing of Prayer 1; Principal Judgment

Legal Issues

  1. 1 ['Whether clause 8(b) of the will contained an error in expression in the phrase "those of them then living of the children of those who may then be dead".' 'Whether the word "of" should be read as "or" in construing the gift of real estate after expiration of the period of postponement of distribution.']

Ratio Decidendi

In the context of clause 8(b) and the will as a whole, the construction treating "of" as retaining its ordinary wording was strained and unnatural, if not ungrammatical, and required reading in concepts such as descendants of any generation. The surrounding text showed that "them" and "those" referred to "such children of my said child". It was sufficiently clear that "of" was erroneously included when "or" was intended, so the gift should be construed as applying to those grandchildren then living or the children of those grandchildren then dead, taking their parent's share per stirpes and not per capita.

Court Disposition

Declaration made as to true construction of gift in will; plaintiffs' costs ordered to be paid out of the trust estate on an indemnity basis.

Orders

  • ['Declares that upon the true construction of the Will of William Gotlett Reinhard, late of Oddfield near Wellington in the State of New South Wales, made on 2 May 1925, the word "of" where it appears second in the seventeenth line on page 3 of the Will, is to be read as "or", so that such part of clause 8(b) is to...