Salier v Watson [2014] NSWSC 237

Salier v Watson [2014] NSWSC 237

It is clear from the will and extrinsic evidence that the testator intended his daughter to have 'Unit 2', and, despite the lack of strata subdivision, the court must give effect to that intention. The administrator is entitled to take steps and expend funds to obtain strata subdivision as necessary to give effect to the will.

Parties
Plaintiff: Gordon Albert Salier; First Defendant: Lee Stephen Watson; Second Defendant: Raymond Winston Elyard; Third Defendant: Rhonda Janet MacBeth
Jurisdiction
Australia
Judgment Date
12 March 2014
Procedural Posture
Succession Suit / Principal Judgment
Outcome
Declarations made in favour of plaintiff; costs orders as per paragraph [20]
Legal Topics
Construction of Will, Subjective Intention of Testator, Recourse to Extrinsic Evidence, Difficulty in Implementing Intention, Ancillary Steps to Give Effect to Intention
Succession Construction of Will Subjective Intention of Testator Recourse to Extrinsic Evidence Difficulty in Implementing Intention Ancillary Steps to Give Effect to Intention

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Parties

Gordon Albert Salier

Plaintiff

Lee Stephen Watson

First Defendant

Raymond Winston Elyard

Second Defendant

Rhonda Janet MacBeth

Third Defendant

Procedural Posture

Succession Suit / Principal Judgment

Legal Issues

  1. 1 Whether the gift of 'Unit 2/163 Ocean Street, Narrabeen' to Denise Susan Watson is valid and effectual despite the lack of strata subdivision at the time of the testator's death
  2. 2 Whether the administrator is entitled to expend funds and take steps to obtain strata subdivision to give effect to the testator's will

Ratio Decidendi

It is clear from the will and extrinsic evidence that the testator intended his daughter to have 'Unit 2', and, despite the lack of strata subdivision, the court must give effect to that intention. The administrator is entitled to take steps and expend funds to obtain strata subdivision as necessary to give effect to the will.

Court Disposition

Declarations made in favour of plaintiff; costs orders as per paragraph [20]

Orders

  • Declaration that the gift of 'Unit 2/163 Ocean Street, Narrabeen' to Denise Susan Watson is valid and effectual.
  • Declaration that the administrator is entitled to take all reasonable steps and expend all necessary moneys on seeking and obtaining registration of a plan of strata subdivision to give effect to the will, including the gift of 'Unit 2'.