John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449

John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449

Having regard to the surrounding circumstances at the time the Will was made, including that the defendant had been adopted shortly after birth, had no relationship or contact with the deceased before the Will, no contact was expected, Nicole was the deceased's only child with the plaintiff and was financially dependent on them, and the plaintiff, Nicole and the drafting solicitor were unaware of the defendant, it was appropriate to construe the first two instances of "children" in clause 3 as referring to Nicole Hamilton Condon only.

Jurisdiction
Australia
Judgment Date
13 April 2018
Procedural Posture
Succession; Construction of Will / Principal Judgment
Outcome
Declaration made by agreement; plaintiff's costs to be paid or retained from the estate on the indemnity basis; no order as to defendant's costs.
Legal Topics
['construction of Will' 'meaning of Children in Will' 'family Provision Eligibility' 'costs From Estate']
['succession'] ['construction of Will' 'meaning of Children in Will' 'family Provision Eligibility' 'costs From Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Succession; Construction of Will / Principal Judgment

Legal Issues

  1. 1 ['Whether, on the true construction of clause 3 of the Will of Margaret Mary Condon dated 12 October 1998, the first two references to "children" mean Nicole Hamilton Condon only and not Simon Anthony Tonkin.']

Ratio Decidendi

Having regard to the surrounding circumstances at the time the Will was made, including that the defendant had been adopted shortly after birth, had no relationship or contact with the deceased before the Will, no contact was expected, Nicole was the deceased's only child with the plaintiff and was financially dependent on them, and the plaintiff, Nicole and the drafting solicitor were unaware of the defendant, it was appropriate to construe the first two instances of "children" in clause 3 as referring to Nicole Hamilton Condon only.

Court Disposition

Declaration made by agreement; plaintiff's costs to be paid or retained from the estate on the indemnity basis; no order as to defendant's costs.

Orders

  • ['Declares that each of the first two instances of the word "children" in cl 3 of the Will dated 12 October 1998 of Margaret Mary Condon means Nicole Hamilton Condon only.' "Makes no order as to the defendant's costs with the intent that he will bear his own costs of proceedings." "Orders that the plaintiff's costs...