The Estate of Michael Andrew Kennedy [2019] NSWSC 1144

The Estate of Michael Andrew Kennedy [2019] NSWSC 1144

Given clear evidence of the deceased's intention and no objections from any beneficiaries, the executor is justified in administering the will on the basis of identified corrections to the mis-described names, without need for an inter partes construction suit.

Parties
Applicant: James Brendan Aubusson
Jurisdiction
Australia
Judgment Date
02 September 2019
Procedural Posture
Judicial Advice Application / Judgment
Outcome
Judicial advice given; costs order in favour of applicant from estate assets.
Legal Topics
Trusts and Trustees, Judicial Advice, Mis Description of Beneficiaries, Wills and Estates
Equity Trusts and Trustees Judicial Advice Mis Description of Beneficiaries Wills and Estates

Case Brief

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Parties

James Brendan Aubusson

Applicant

Procedural Posture

Judicial Advice Application / Judgment

Legal Issues

  1. 1 Whether the executor is justified in administering the will on the basis of correcting the mis-description of certain residuary beneficiaries.

Ratio Decidendi

Given clear evidence of the deceased's intention and no objections from any beneficiaries, the executor is justified in administering the will on the basis of identified corrections to the mis-described names, without need for an inter partes construction suit.

Court Disposition

Judicial advice given; costs order in favour of applicant from estate assets.

Orders

  • The applicant is justified in administering the will of Michael Andrew Kennedy dated 15 March 2016 on the basis that: (a) 'Marc Herbert' refers to Anthony Marc Herbert, husband of Marilyn Herbert (niece of deceased); (b) 'Michael Walsh' refers to Sean Robert Walsh (great nephew of deceased); (c) 'wife of Michael...
  • The applicant's costs of these proceedings be paid from the assets of the estate of the late Michael Andrew Kennedy on the indemnity basis.