Ditton v Whitton

In *Ditton v Whitton* [1997] NSWCA 88, the New South Wales Court of Appeal considered a dispute concerning the interpretation of a will. The primary issue before the court was whether a specific bequest of a property was intended to be a gift of the property itself, or merely a gift of the testator's interest in the property at the time of their death. This distinction was crucial for determining the beneficiaries' entitlements.

The court was required to determine the proper construction of the relevant clause in the testator's will. Specifically, it had to ascertain the testator's intention regarding the disposition of the property, considering the wording used and the surrounding circumstances at the time the will was made. The central legal question was whether the testator intended to give the beneficiaries the property absolutely, or only whatever interest they held in it at the time of their passing.

The Court of Appeal held that the language of the will indicated a clear intention to gift the property itself, rather than merely the testator's existing interest. The court applied established principles of testamentary construction, emphasising that the primary aim is to ascertain the testator's intention from the words used in the will, read as a whole. Where the language is clear, it should be given its ordinary meaning. The court found that the testator had intended to confer an absolute interest in the property upon the beneficiaries, irrespective of any subsequent changes to the testator's interest in that property prior to death. The appeal was accordingly dismissed.