Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Carrington v Wallace [2019] NSWSC 1301 Hearing dates: 2 August 2019 Decision date: 27 September 2019 Jurisdiction: Equity Before: Robb J Decision: (1) The Court proposes making the orders as set out in par [115] of these reasons for judgment.
(2) The parties should serve on the other parties and deliver to the Associate to Robb J any comments on the form of the orders that should be made within 14 days of the publication of these reasons for judgment.Catchwords: SUCCESSION — Wills, probate and administration — Proper construction and effect of testamentary dispositions
SUCCESSION — Wills, probate and administration — Construction and effect of testamentary dispositions — Admissibility of extrinsic evidence — Ambiguity at common law — Ambiguity under s 32 of the Succession Act — Ambiguity vs equivocation — No relevant ambiguity foundLegislation Cited: Administration of Justice Act 1982, (UK)
Succession Act 2006 (NSW)
Wills Act 1968 (ACT)
Wills Act 1997 (Vic)
Wills Act 2008 (Tas)Cases Cited: Allgood v Blake (1873) LR 8 Ex 160
Dore v Billinghurst [2006] QCA 494
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
James v Douglas [2016] NSWCA 178
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18
Lockrey v Ferris [2011] NSWSC 179
Lubke v Claridge [2016] TASSC 44
Marley v Rawlings [2015] AC 129; [2014] UKSC 2
Re Williams (deceased); Wiles v Madgin [1985] 1 All ER 964
The Estate of William John Gilbert [2017] NSWSC 1138Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths)
National Committee for Uniform Succession Laws Report (December 1997)
Sir K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Thomson Reuters (Professional) Australia Limited)Category: Principal judgment Parties: Mischa Grace Carrington (first plaintiff/first cross-defendant)
Dean Edward Carrington (second plaintiff/second cross-defendant)
Matthew Gary Wallace (first defendant/first cross-claimant)
Ashley Joseph Carrington (second defendant/second cross-claimant)Representation: Counsel:
Solicitors:
S Bell (plaintiffs/cross-defendants)
J D Cook (defendants/cross-claimants)
SR Law (plaintiffs/cross-defendants)
Minter Ellison (defendants/cross-claimants)
File Number(s): 2018/238530
Judgment
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This case raises a question of the proper construction of the will dated 18 April 2015 of the late Edward Joseph Carrington, who died on 19 December 2015.
The parties
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The plaintiffs are two of the children of the deceased, Mischa Grace Carrington (formerly known as Michelle Anne Wallace) and Dean Edward Carrington.
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The defendants are the executors and trustees of the will of the deceased, under a grant of probate made by this Court on 27 May 2016.
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The first defendant, Matthew Gary Wallace, was formerly married to the first plaintiff before their divorce in about 2011. The second defendant, Ashley Joseph Carrington, is the third child of the deceased.
The claims
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The plaintiffs commenced these proceedings by summons filed on 3 August 2018. By that summons, the plaintiffs seek the following relief:
1. A declaration that each of the Plaintiffs…
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- AGLC
- Carrington v Wallace [2019] NSWSC 1301
- Case
- [2019] NSWSC 1301
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the will contained any ambiguity that could be resolved through extrinsic evidence and if so, whether this ambiguity was sufficient to warrant a re-evaluation of the will's provisions under the Succession Act. The court had to determine whether any ambiguity found in the will was relevant to its interpretation or if it merely constituted an equivocation that did not impact the testator's intent.
The court carefully examined the language of the will and found no relevant ambiguity that would permit the admission of extrinsic evidence. The court distinguished between ambiguity, which affects the meaning of the will, and equivocation, which does not. Given that the will's language was clear and did not lead to any confusion regarding the testator's intent, the court concluded that no extrinsic evidence was admissible. As such, the will was to be interpreted based solely on its written terms.
The court's decision upheld the executors' interpretation of the will and dismissed the claims of the opposing heirs. The court ordered that the estate be distributed in accordance with the terms of the will as interpreted, with no alterations based on extrinsic evidence.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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