Williams v Milone [2004] NSWSC 576

Williams v Milone [2004] NSWSC 576

Clause 8(i) was nonsensical if it operated only where no direct issue survived, because it named the testator's two daughters, who were direct issue, as beneficiaries together with the stepchildren. Leaning against intestacy, the proper construction was to read out as meaningless or nonsense the words "there being none of my direct issue", thereby giving effect to the testator's intention.

Jurisdiction
Australia
Judgment Date
28 June 2004
Procedural Posture
Succession Proceeding for Construction of a Will / Decision on Summons for Declaration
Outcome
Declaration for construction of the will made in terms of paragraph 1(b) of the summons.
Legal Topics
['wills' 'construction of Wills' 'omitting or Supplying Words' 'intestacy']
['succession' 'equity'] ['wills' 'construction of Wills' 'omitting or Supplying Words' 'intestacy']

Case Brief

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Procedural Posture

Succession Proceeding for Construction of a Will / Decision on Summons for Declaration

Legal Issues

  1. 1 ['Whether clause 8 of the will should be construed by inserting additional words, omitting words as nonsense, or leaving an intestacy.' 'Whether the words "and there being none of my direct issue (children or grandchildren) surviving at the date of my death" should be disregarded so as to give effect to the testator\'s intention.']

Ratio Decidendi

Clause 8(i) was nonsensical if it operated only where no direct issue survived, because it named the testator's two daughters, who were direct issue, as beneficiaries together with the stepchildren. Leaning against intestacy, the proper construction was to read out as meaningless or nonsense the words "there being none of my direct issue", thereby giving effect to the testator's intention.

Court Disposition

Declaration for construction of the will made in terms of paragraph 1(b) of the summons.

Orders

  • ['Declaration in terms of order 1(b) of the summons.' 'Costs in these proceedings to be part of the costs in the allied Family Provision Act proceedings 1097/02, save that costs of the third and fifth defendants as on the submitting appearance basis, but to include costs of the affidavits of D Yeates, be paid out of...