Aileen Barbara Fotiadis v Mervyn Patrick Jinks & Anor [2002] NSWSC 420

Aileen Barbara Fotiadis v Mervyn Patrick Jinks & Anor [2002] NSWSC 420

On the construction of the will, the words 'all my personal estate and goods and $15,000 invested in Commonwealth Bank' as used by the testatrix, in context, show an intention to dispose of her whole estate, including the real property. The inclusion of 'and goods' provides a strong context for construing 'personal estate' as including realty in this will, justifying that the beneficiaries take real property under the will and there is no intestacy as to the real estate.

Jurisdiction
Australia
Judgment Date
06 May 2002
Procedural Posture
Will Construction / Probate / Judgment
Outcome
Declaration made; costs to be paid out of the estate.
Legal Topics
['construction of Wills' "interpretation of 'personal Estate'" 'intestacy' 'entitlement to Proceeds of Real Property']
['wills and Estates' 'equity'] ['construction of Wills' "interpretation of 'personal Estate'" 'intestacy' 'entitlement to Proceeds of Real Property']

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Procedural Posture

Will Construction / Probate / Judgment

Legal Issues

  1. 1 ["Whether 'personal estate' in the will includes real property" 'Whether the second defendant is entitled to the proceeds of sale of real property']

Ratio Decidendi

On the construction of the will, the words 'all my personal estate and goods and $15,000 invested in Commonwealth Bank' as used by the testatrix, in context, show an intention to dispose of her whole estate, including the real property. The inclusion of 'and goods' provides a strong context for construing 'personal estate' as including realty in this will, justifying that the beneficiaries take real property under the will and there is no intestacy as to the real estate.

Court Disposition

Declaration made; costs to be paid out of the estate.

Orders

  • ['A declaration that on the true construction of the will dated 27 November 1998 of Ivy Elizabeth Jinks, probate granted on 18 July 2001, the second defendant is entitled to participate in the proceeds realised from the sale of the real property at 284 Fullerton Street, Stockton.' 'The costs of the proceedings in...