Estate of Aspasia Kandros [2019] NSWSC 757

Estate of Aspasia Kandros [2019] NSWSC 757

The Will of Aspasia Kandros should be construed in light of extrinsic evidence to give effect to the deceased's intention, notwithstanding misdescriptions of property. The specific devises in clause 4 should not fail because of such misdescriptions where the subject property can be identified and the intention is clear. Rectification of the Will in respect of the Caringbah property is not granted due to lack of evidence of a clerical error or failure to implement instructions, but construction allows the intention to be realised. Partition of the Marrickville property is appropriate to effect the devises as intended.

Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Succession—construction and Rectification of Will / Principal Judgment—post Hearing, Before Final Declarations/orders
Outcome
Proceedings adjourned for parties to agree on form of declarations and orders in line with reasons. No final declarations or rectification orders made at this stage.
Legal Topics
['wills' 'probate and Administration' 'construction of Testamentary Dispositions' 'rectification of Will' 'partition of Property']
['succession Law' 'equity'] ['wills' 'probate and Administration' 'construction of Testamentary Dispositions' 'rectification of Will' 'partition of Property']

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Procedural Posture

Succession—construction and Rectification of Will / Principal Judgment—post Hearing, Before Final Declarations/orders

Legal Issues

  1. 1 ['Proper construction of the Will of Aspasia Kandros regarding description of property' 'Whether rectification of the Will under s 27 Succession Act 2006 (NSW) is appropriate' 'Whether partition of real property under the Will is appropriate under s 57 Probate and Administration Act 1898 (NSW)']

Ratio Decidendi

The Will of Aspasia Kandros should be construed in light of extrinsic evidence to give effect to the deceased's intention, notwithstanding misdescriptions of property. The specific devises in clause 4 should not fail because of such misdescriptions where the subject property can be identified and the intention is clear. Rectification of the Will in respect of the Caringbah property is not granted due to lack of evidence of a clerical error or failure to implement instructions, but construction allows the intention to be realised. Partition of the Marrickville property is appropriate to effect the devises as intended.

Court Disposition

Proceedings adjourned for parties to agree on form of declarations and orders in line with reasons. No final declarations or rectification orders made at this stage.

Orders

  • ['Proceedings adjourned to a date to be fixed for the making of declarations and orders.' "The Plaintiff's costs of the application, on an indemnity basis, to be paid out of the estate of the deceased."]