Bourne v Murphy

In *Bourne v Murphy and Ors*, the New South Wales Court of Appeal considered a dispute concerning the interpretation of a will. The appellant, Mr. Bourne, was the executor and beneficiary of the estate of the late Mr. Murphy, and the respondents were other beneficiaries. The central issue revolved around whether a specific bequest of a property was intended to be a gift of the property itself or a gift of the proceeds of sale of that property.

The Court was required to determine the true construction of the relevant clause in the will, specifically whether the testator intended to give the beneficiary the option to take the property in specie or whether the property was to be sold and the proceeds distributed. This involved an analysis of the testator's intention as expressed within the four corners of the will, considering the language used and the context of the entire testamentary instrument.

The Court applied established principles of will construction, emphasizing that the primary duty of the court is to ascertain the testator's intention from the words they have used. It considered the specific wording of the bequest, noting that the use of the phrase "my property at [address]" followed by directions for sale and distribution of proceeds created an ambiguity. The Court reasoned that the testator's clear intention was for the property to be sold and the proceeds distributed, rather than for the beneficiary to receive the property itself. The Court found that the direction for sale was paramount and that the gift was of the proceeds of sale.