Bain (deceased) & Bain (No 2)

The parties to this proceeding were the deceased, Mr Bain, and his wife, Mrs Bain, who brought the application in her capacity as executrix of his will. The dispute concerned the interpretation of a clause in Mr Bain's will, specifically clause 10, which dealt with the distribution of the residue of his estate. The matter came before Hogan J in the Supreme Court of Victoria.

The central legal issue before the court was whether clause 10 of the will, which stipulated that the residue of the estate was to be divided equally between the testator's children and grandchildren, was void for uncertainty. This uncertainty arose from the phrase "children and grandchildren," and the court was required to determine if this phrase could be given a definitive meaning in the context of the will.

Hogan J reasoned that the phrase "children and grandchildren" was not inherently ambiguous in a testamentary context. His Honour applied the principle that a testator's intention should be given effect if it can be ascertained with reasonable certainty. In this instance, the court found that the testator intended to benefit both his children and his grandchildren as distinct classes of beneficiaries. The court held that the clause was not void for uncertainty and that the residue of the estate was to be divided equally between the children and grandchildren of the deceased, with each child and each grandchild receiving an equal share.