Arnot v Arnot [2017] NSWSC 1741

Arnot v Arnot [2017] NSWSC 1741

On a proper construction of the deceased's will, the devise of 'share and interest in Flat 20' includes the car parking space as well as the residential unit, considering the deceased's treatment of the property, the acquisition circumstances, and the wording of the will.

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Declaration granted that the devise in clause 3 includes the car parking space as well as the residential unit. Costs to be paid out of the estate on an indemnity basis.
Legal Topics
['construction of Will' 'devise of Property' 'interpretation of Testamentary Instruments']
['succession Law' 'equity'] ['construction of Will' 'devise of Property' 'interpretation of Testamentary Instruments']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ["Whether the devise of 'share and interest in Flat 20' in the will includes both the residential unit and separately titled car parking space"]

Ratio Decidendi

On a proper construction of the deceased's will, the devise of 'share and interest in Flat 20' includes the car parking space as well as the residential unit, considering the deceased's treatment of the property, the acquisition circumstances, and the wording of the will.

Court Disposition

Declaration granted that the devise in clause 3 includes the car parking space as well as the residential unit. Costs to be paid out of the estate on an indemnity basis.

Orders

  • ['Declare that on the true construction of the will of the deceased dated 6 November 2001, as re-published by the codicil dated 22 October 2004, the car parking space being lot 37 in Strata Plan 4613 forms part of the devise in clause 3 of the will.' 'Order that the plaintiff and second defendant as executors be at...