Rudge v Link [2008] NSWSC 1104

Rudge v Link [2008] NSWSC 1104

On the proper construction of the holograph will and codicil, the direction that the Longueville house proceeds be 'divided between' named family members meant a four-way division, not a moiety split, and any possible share of John Link was ineffective after his disclaimer. The residue was not effectively disposed of and therefore passed on intestacy to the four children equally. The $2,000 gift to grandchildren was adeemed. The codicil validly gave the term deposit money to all grandchildren living at the testatrix's death other than Bill Ormonde, with minors' shares to be held until they could give valid receipts.

Jurisdiction
Australia
Judgment Date
17 October 2008
Procedural Posture
Will Construction Proceedings / Ex Tempore Judgment Answering Construction Questions in Summons
Outcome
Will construed; construction questions answered; costs ordered out of the estate.
Legal Topics
['construction of Holograph Will and Codicil' 'distribution of Proceeds of Real Property' 'disclaimer by Beneficiary' 'ademption' 'residue Undisposed of and Intestacy' 'trust Account for Grandchildren' 'minor Beneficiaries']
['succession' 'equity'] ['construction of Holograph Will and Codicil' 'distribution of Proceeds of Real Property' 'disclaimer by Beneficiary' 'ademption' 'residue Undisposed of and Intestacy' 'trust Account for Grandchildren' 'minor Beneficiaries']

Case Brief

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Procedural Posture

Will Construction Proceedings / Ex Tempore Judgment Answering Construction Questions in Summons

Legal Issues

  1. 1 ["Whether the proceeds of the testatrix's Longueville house were to be divided into four equal shares or otherwise." 'Whether the bequest of $2,000 to the grandchildren was adeemed.' 'To whom the residue of the estate was distributable on the true construction of the will.' 'Whether the codicil gift of money in term deposit at Gateway Credit Union and Commonwealth Bank to be placed in a trust account for grandchildren was valid and who took it.' 'When the gift to grandchildren under the codicil took effect.' 'Whether the codicil revoked any part of the will.']

Ratio Decidendi

On the proper construction of the holograph will and codicil, the direction that the Longueville house proceeds be 'divided between' named family members meant a four-way division, not a moiety split, and any possible share of John Link was ineffective after his disclaimer. The residue was not effectively disposed of and therefore passed on intestacy to the four children equally. The $2,000 gift to grandchildren was adeemed. The codicil validly gave the term deposit money to all grandchildren living at the testatrix's death other than Bill Ormonde, with minors' shares to be held until they could give valid receipts.

Court Disposition

Will construed; construction questions answered; costs ordered out of the estate.

Orders

  • ["Question A answered: the proceeds of 'my house at … Longueville' are to be divided into four equal shares." 'Questions B, C, D and E do not arise.' 'Question F answered: the bequest of $2,000 to the grandchildren is adeemed.' 'Question G does not arise.' 'Question H answered: the residue is distributable as on...