The Estate of William John Gilbert [2017] NSWSC 1138

The Estate of William John Gilbert [2017] NSWSC 1138

On the proper construction of the Will, the term 'children' in clause 5 includes step-children, given the Testator's clear intention, reciprocal wills, absence of natural children, and the familial relationship established by evidence.

Jurisdiction
Australia
Judgment Date
23 August 2017
Procedural Posture
Succession Construction of Will / Principal Judgment
Outcome
Declaration made that 'children' includes step-children; costs ordered paid from estate; statement of claim otherwise dismissed.
Legal Topics
['will Construction' 'step Children Inclusion' 'intestacy Presumption']
['succession Law' 'equity'] ['will Construction' 'step Children Inclusion' 'intestacy Presumption']

Case Brief

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Procedural Posture

Succession Construction of Will / Principal Judgment

Legal Issues

  1. 1 ["Whether 'children' in the Will includes step-children" 'Proper construction of the Will of William John Gilbert']

Ratio Decidendi

On the proper construction of the Will, the term 'children' in clause 5 includes step-children, given the Testator's clear intention, reciprocal wills, absence of natural children, and the familial relationship established by evidence.

Court Disposition

Declaration made that 'children' includes step-children; costs ordered paid from estate; statement of claim otherwise dismissed.

Orders

  • ["Declare that, on the proper construction of the Will of William John Gilbert, the word 'children' in clause 5 includes 'step-children'." 'Order that the costs of Pamela Webster and Helen Anne Barnett be paid from the estate on the indemnity basis.' 'Order that the Statement of Claim be otherwise dismissed.']