EGGLER v MITCHELMORE [1998] NSWCA 73

EGGLER v MITCHELMORE [1998] NSWCA 73

The burden of the court's orders is the difference between the interest Mrs Eggler would have received in residue under the will (absent the court's order) and the sum of $250,000, and this difference is to be borne equally by the five charities. The executor's interpretation, which would have increased the share of certain beneficiaries, was not supported by the will, the reasons of Master Windeyer or the Court in 1992, nor by any principle of construction applicable to these circumstances.

Parties
Applicant: Norma Mavis Eggler; Executor/respondent: Mitchelmore; Amicus/additional Party: Royal Blind Society of New South Wales
Jurisdiction
Australia
Judgment Date
30 September 1998
Procedural Posture
Family Provision Application/estate Distribution / Application for Directions Following Judgment; Clarification of Earlier Order
Outcome
Declarations and orders made as to construction of previous court order, addition of party, and costs.
Legal Topics
Construction of Will, Distribution of Estate, Interpretation of Court Orders, Addition of Parties (nunc Pro Tunc)
Wills and Estates Family Provision Construction of Will Distribution of Estate Interpretation of Court Orders Addition of Parties (nunc Pro Tunc)

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Parties

Norma Mavis Eggler

Applicant

Mitchelmore

Executor/respondent

Royal Blind Society of New South Wales

Amicus/additional Party

Procedural Posture

Family Provision Application/estate Distribution / Application for Directions Following Judgment; Clarification of Earlier Order

Legal Issues

  1. 1 What is the proper construction of the court's previous orders regarding the burden to be borne by the five charities under the will?
  2. 2 Whether the burden on the charities is the whole sum payable under order or only the difference between residue and $250,000

Ratio Decidendi

The burden of the court's orders is the difference between the interest Mrs Eggler would have received in residue under the will (absent the court's order) and the sum of $250,000, and this difference is to be borne equally by the five charities. The executor's interpretation, which would have increased the share of certain beneficiaries, was not supported by the will, the reasons of Master Windeyer or the Court in 1992, nor by any principle of construction applicable to these circumstances.

Court Disposition

Declarations and orders made as to construction of previous court order, addition of party, and costs.

Orders

  • The Royal Blind Society of New South Wales be added as a party nunc pro tunc.
  • Declaration made that the burden of the orders is the difference between the residue Mrs Eggler would have received absent the court's order and $250,000, and that this difference is to be shared equally by the five charities.