Kean v Murphy [2012] NSWSC 948

Kean v Murphy [2012] NSWSC 948

Clause 5 requires the estate to be divided into three equal parts corresponding to the families of the three named siblings, and each part is to be divided equally among the children of that sibling—i.e., a distribution per stirpes by sibling group rather than per capita among all children.

Jurisdiction
Australia
Judgment Date
21 August 2012
Procedural Posture
Principal Judgment / Decision After Hearing
Outcome
Declared true construction of the will; orders as stated.
Legal Topics
['construction of Wills' 'residuary Estate' 'evidence of Intention']
['wills and Estates'] ['construction of Wills' 'residuary Estate' 'evidence of Intention']

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Procedural Posture

Principal Judgment / Decision After Hearing

Legal Issues

  1. 1 ['Whether the estate is to be divided equally among all children of the three named siblings, or into three equal parts per group of siblings and then divided among each group']

Ratio Decidendi

Clause 5 requires the estate to be divided into three equal parts corresponding to the families of the three named siblings, and each part is to be divided equally among the children of that sibling—i.e., a distribution per stirpes by sibling group rather than per capita among all children.

Court Disposition

Declared true construction of the will; orders as stated.

Orders

  • ["Declare that the executor must divide the estate into three equal parts, each to be paid per stirpes to the children of each of the deceased's siblings John Francis Kean, Thomas James Kean, and Dorothy Phyllis Kean, such that the group of each sibling's children receives one equal part to divide equally among...