Edmonds v Morrissey [2016] NSWSC 342

Edmonds v Morrissey [2016] NSWSC 342

The words 'issue children' in the will, in context, refer only to the children of Thomas Patrick Morrissey; the reference to 'grand-children' in a later clause does not, in the absence of a clear drafting error, expand the primary gift in remainder to include grandchildren. The gift in remainder is shared equally by the plaintiff and the first defendant as tenants in common.

Parties
Plaintiff: Nola Anne Edmonds; First Defendant: John Patrick Morrissey; Second Defendant: Paul Shiels; Third Defendant: Peter Shiels
Jurisdiction
Australia
Judgment Date
31 March 2016
Procedural Posture
Construction Summons / Judgment
Outcome
Declaration made affirming equal shares in remainder estate between plaintiff and first defendant as tenants in common.
Legal Topics
Construction of Wills, Meaning of 'issue Children', Distribution of Remainder Estate
Succession Law Construction of Wills Meaning of 'issue Children' Distribution of Remainder Estate

Case Brief

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Parties

Nola Anne Edmonds

Plaintiff

John Patrick Morrissey

First Defendant

Paul Shiels

Second Defendant

Peter Shiels

Third Defendant

Procedural Posture

Construction Summons / Judgment

Legal Issues

  1. 1 Whether 'issue children' in the will includes grandchildren
  2. 2 Whether words 'or grand-children' were used in error or omitted
  3. 3 How the remainder of the real estate should be distributed

Ratio Decidendi

The words 'issue children' in the will, in context, refer only to the children of Thomas Patrick Morrissey; the reference to 'grand-children' in a later clause does not, in the absence of a clear drafting error, expand the primary gift in remainder to include grandchildren. The gift in remainder is shared equally by the plaintiff and the first defendant as tenants in common.

Court Disposition

Declaration made affirming equal shares in remainder estate between plaintiff and first defendant as tenants in common.

Orders

  • Declaration that the gift in remainder of the testator's real estate is shared equally by the plaintiff and the first defendant as tenants in common.
  • Costs of the plaintiff and the first defendant to be paid out of the trust estate on the indemnity basis.