Peter Parkinson v Diabetes Australia & Anor [2011] NSWSC 1530

Peter Parkinson v Diabetes Australia & Anor [2011] NSWSC 1530

Although the description "DIABETES AUSTRALIA" was ambiguous in the circumstances because it could have fitted the second defendant if the first defendant had not existed, it was the correct name of the first defendant. The evidence did not clearly show that the testator did not intend to benefit the body he literally named, and did not establish that he meant the second defendant. The gift in cl (b) was therefore to the first defendant.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Proceedings for Construction of Will and Determination of Beneficiary / Principal Judgment After Hearing
Outcome
The gift in cl (b) of the will to "DIABETES AUSTRALIA" was declared to be a gift to the first defendant, Diabetes Australia.
Legal Topics
['construction of Will' 'identification of Beneficiary' 'ambiguous Name in Will' 'extrinsic Evidence' 'costs From Estate']
['wills, Probate and Administration' 'equity'] ['construction of Will' 'identification of Beneficiary' 'ambiguous Name in Will' 'extrinsic Evidence' 'costs From Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Proceedings for Construction of Will and Determination of Beneficiary / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the gift in cl (b) of Noel James Poore\'s will to "DIABETES AUSTRALIA" referred to the first defendant or the second defendant.' "Whether extrinsic evidence of the testator's association with the second defendant and the use of names by persons associated with it displaced the literal identification of the first defendant."]

Ratio Decidendi

Although the description "DIABETES AUSTRALIA" was ambiguous in the circumstances because it could have fitted the second defendant if the first defendant had not existed, it was the correct name of the first defendant. The evidence did not clearly show that the testator did not intend to benefit the body he literally named, and did not establish that he meant the second defendant. The gift in cl (b) was therefore to the first defendant.

Court Disposition

The gift in cl (b) of the will to "DIABETES AUSTRALIA" was declared to be a gift to the first defendant, Diabetes Australia.

Orders

  • ['Order and declare that upon the true construction of the last will of the late Noel James Poore made on 19 March 2007 and in the circumstances which have happened the object of the gift contained in cl (b) of this will and there referred to as, "DIABETES AUSTRALIA", is the first defendant.' 'Order that the costs...