Earl v Walkom (in the Estate of Walkom (Deceased))

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EARL v WALKOM (IN THE ESTATE OF WALKOM (DECEASED))
[2025] SASC 71
Judgment of the Honourable Justice Stanley
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - WHERE UNCERTAINTY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - CONDITIONS AND GIFTS OVER - AS TO DEATH OF BENEFICIARY BEFORE RECEIVING LEGACY OR SHARE
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - CONTINGENCY INVOLVING DEATH - DEATH COUPLED WITH CONTINGENCY - DEATH OF PERSON AFTER TESTATOR BUT BEFORE DISTRIBUTION
The applicant seeks advice and direction as to the proper construction of the will of Ms Marie Clare Walkom (the deceased). The deceased died on 29 July 2022. She was predeceased by her husband Nelson Bruce Walkom. A grant of probate was issued to the applicant on 7 November 2022.
The deceased’s will provides that in the event her husband predeceased her, the residue of her estate was to be divided equally between her three children, David, Gregory and Ian “who survived [her]”. Ian passed away eight weeks after the deceased on 21 September 2022.
The bequest to David, Gregory and Ian was made “subject to” a condition that if David or Gregory had already died, died before the deceased, or before attaining a vested interest, then their children would equally take the share their father would have otherwise taken. There was also a separate condition in relation to Ian. If Ian had already died, died before the deceased or before attaining a vested interest, his wife Janine would take one half of the share Ian would have otherwise taken and the other half of Ian’s share was to be distributed equally between the deceased’s grandchildren. However the gift was not expressly made “subject to” the separate condition relating to Ian.
The issue to be determined is whether by surviving his mother, Ian’s estate is entitled to receive one-third of the residue of the deceased’s estate, or, whether the gift is to be distributed in accordance with the separate condition in relation to Ian. In doing so the Court must also determine whether Ian attained a vested interest in the deceased’s estate prior to his death.
Held:
1.Paragraph 6.4(a) of the will of Marie Clare Walkom must be interpreted as being subject to paragraph 6.4(c). To receive a third share of the deceased’s estate, Ian must have been alive when the deceased made her will, alive when the deceased died, and have attained a vested interest prior to his death.
2.Ian William Walkom died before attaining a vested interest in the deceased’s estate. The will of the deceased is to be distributed in accordance with the contingency foreseen by paragraph 6.4(c). Ian’s widow Ms Janine Walkom is to receive half of the gift which would otherwise have been left to Ian. The balance of the share Ian would have otherwise taken is to be divided equally between the deceased’s grandchildren.

Administration and Probate Act 1919 (SA); Succession Act 2023 (SA); A. Learmonth KC, C. Ford and T. Fletcher, Theobald on Wills (Sweet & Maxwell, 19th ed., 2021); C.H. Sherrin, R.F.D Barlow and R.A. Wallington, Williams on Wills (6th ed., 1987), referred to.
Farrelly v Phillips (2017) 128 SASR 502; An Application by Elizabeth Marie Robinson [2015] NSWSC 1387; Re Hewitt [1945] SASR 102; Re Croxon; Croxon v Ferrers [1904] 1 Ch 252 at 258, applied.
Fell v Fell (1922) 31 CLR 268; Serwin v Dolso [2020] NSWSC 370; Re De Bruyn [2016] VSC 6; Kinloch v Manzione [2022] ACTSC 76, discussed.

EARL v WALKOM (IN THE ESTATE OF WALKOM (DECEASED))
[2025] SASC 71
Civil - Application
STANLEY J:
Introduction

The applicant, Peter Earl, the executor of the estate of Marie Clare Walkom (deceased) made an ex parte application for judicial advice and directions pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) seeking advice as to the proper construction of the last known will of the deceased dated 29 August 2019. In order to invoke the supplementary jurisdiction to make binding determinations pursuant to s 69 of the Act, the Court ordered the joinder of the respondents and the application was converted into an inter partes application that would be binding upon anyone joined to it. While judgment was reserved the Act was repealed by Sch 3, Cl 1 of the Succession Act 2023 (SA) (Succession Act). The equivalent section under the Succession Act is s 95. The application was completed under the Act pursuant to Sch 4, Cl 2 of the Succession Act as if the Succession Act had not been enacted.
The deceased and her husband had three children, David Bruce Walkom (David), Gregory Richard Walkom (Gregory) and Ian William Walkom (Ian). The deceased made her last will on 29 August 2019. The deceased died on 29 July 2022. Ian died on 21 September 2022. He died intestate and without issue. He is survived by his wife, the fifth respondent Janine Helen Walkom (Janine).
The first to fourth respondents are grandchildren of the deceased and children of David and Gregory.
The deceased’s estate includes two real properties in South Australia and in Cape Paterson, Victoria.
The deceased’s husband, Nelson Bruce Walkom (Nelson), predeceased her by more than 30 days.
Probate in the deceased’s will was granted to the applicant on 7 November 2022.
Evidence
The Court received an affidavit of the applicant affirmed 17 November 2023, except for paragraphs 25 and 27, and a further affidavit affirmed 23 May 2024, as well as an affidavit of a solicitor, Catherine O’Donovan, sworn 31 May 2024.
The will
A dispute has arisen between the respondents concerning the proper construction of the deceased’s will. It pits the grandchildren against Janine.
By Clause 5.1 of the will the deceased left her estate to her husband, Nelson Walkom, if he survived her by 30 days. He did not.
Clause 5.2 of the will provides that the gift referred to in subclause 5.1 is contingent and does not vest unless Nelson survives the deceased by 30 days.
Clause 5.3 provides that income produced by the gift in subclause 5.1 between the deceased’s death and vesting accumulates to the gift.
Clause 6.4 of the will provides:
(a)    Subject to paragraph (b), to divide the residue of my estate equally among those of my children DAVID BRUCE WALKOM, GREGORY RICHARD WALKOM and IAN WILLIAM WALKOM who survive me;
(b)    If any of my sons DAVID BRUCE WALKOM or GREGORY RICHARD WALKOM has already died or dies before me or before attaining a vested interest leaving children who attain the age of 21 years then those children upon attaining the age of 21 years take equally the share which their father would otherwise have taken.
(c)    If my son IAN WILLIAM WALKOM has already died or dies before me or before attaining a vested interest then his wife JANINE WALKOM takes one half of the share which my son IAN WILLIAM WALKOM would otherwise have taken and those of my grandchildren who attain the age of 21 years take equally the other one half of the share which my son IAN WILLIAM WALKOM would otherwise have taken.
The applicant seeks a determination of the question of whether, in the events that have happened, and on the proper construction of the deceased’s will of 29 August 2019, the gift of one-third of the residual estate in clause 6.4(a) to Ian is to be distributed to his estate or whether the gift is to be distributed pursuant to the terms of clause 6.4(c).
Clause 6.4(a) says “subject to paragraph (b)” the executor is to divide the residue equally among her children David, Gregory and Ian, “who survive me”. Ian survived the deceased by eight weeks but paragraph 6.4(c) states that if Ian “dies … before attaining a vested interest” then his wife Janine takes half of the share Ian otherwise would have taken and the deceased’s grandchildren takes the other half. The issue is whether by having ‘survived’ the deceased Ian’s share of the residue passes to his estate or whether paragraph 6.4(a) is to be read subject to paragraph 6.4(c) and, if so, did Ian die “before attaining a vested interest”.
Relevant legal principles in interpreting wills
In Fell v Fell[1] Isaacs J identified ten principles of will construction in the following terms:[2]
[1] (1922) 31 CLR 268.
[2] Fell v Fell (1922) 31 CLR 268 at 273-276.
(1)Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used. (Lord Cranworth in Abbott v. Middleton; Lord Wensleydale in the same case).
(2) The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckley L.J. in Kirby-Smith v. Parnell).
(3) If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared. (Towns v. Wentworth; Hawkins on Wills, 2nd ed., at p. 6).
(4)An inference cannot be made that did not necessarily result from all the will taken together. (Sir R. P. Arden M.R. in Upton v. Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed. (James L.J. in Crook v. Hill).
(5)We cannot give effect to any intention which is not expressed or plainly implied in the language of the “will”. (Lord Watson in Scalé v. Rawlins). You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication. (Lord Brougham L.C. in Langston v. Langston).
(6)If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made. (Knight Bruce L.J. in Pride v. Fooks).
(7)When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy. (Page Wood V.C. in Hope v. Potter).
(8)There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense … ), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention. (Lord Brougham L.C. in Langston v. Langston).
(9)If on reading the will you can see some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself. (Langston v. Langston).
(10)The mind never inclines towards intestacy; it is a dernier resort in the construction of wills. (Lord Shaw in Lightfoot v. Maybery). In ascertaining the intention, I ought to a certain extent—we all know what the expression means—to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary. (Buckley L.J. in Kirby-Smith v. Parnell).
[Citations omitted]
In Farrelly v Phillips[3] the Full Court considered the applicable principles of construction of wills in the following terms:[4]
[3] [2017] SASCFC 111, (2017) 128 SASR 502.
[4] Farrelly v Phillips [2017] SASCFC 111 at [23]-[32], (2017) 128 SASR 502 at 507-510.
The task of a court when construing a will is to discover the intention of the testator. In Perrin v Morgan, Lord Romer said:
I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.
Lord Simon said:
… [t]he fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case — what are the “expressed intentions” of the testator.
In Fairbairn v Varvaressos Campbell JA cited with approval the dicta of Bryson J in Perpetual Trustee Co Ltd v Wright, where his Honour said:
… one’s task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.
In Muir v Winn Bryson AJ observed:
It is necessary to seek to understand the scheme of a testator’s dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important.
The appellant seeks to rely upon the so-called “armchair principle”. This was described in Allgood v Blake by Blackburn J as follows:
The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … the meaning of words varies according to the circumstances of and concerning which they are used. There are two qualifications to the armchair principle.
First, when the Court considers the circumstances known to the testator, it is only the circumstances existing at the time the testator made his will that may be considered. Second, extrinsic evidence cannot be used to make words in a will bear a meaning which on the face of the will they are incapable of conveying. This is sometimes described as the “incapable meaning rule” or the “plain meaning rule”. In relation to the armchair principle, Lord Romer observed in Perrin v Morgan, that when seated in the armchair the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he plainly said.
In Marley v Rawlings, the Supreme Court of the United Kingdom has recently approached the construction of wills on the same basis as the interpretation of contracts. The Court adopted the objective theory to ascertaining the testator’s intention, which it found to be consistent with the armchair principle. Lord Neuberger, with whom Lord Clarke, Lord Sumption and Lord Carnwath agreed, said:
When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan that “courts will never construe words in a vacuum”.
Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd.
…
[T]he approach to the interpretation of contracts … is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th ed (2010), chapter 15 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp). Indeed, the well known suggestion of James LJ in Boyes v Cook that, when interpreting a will, the court should “place [itself] in [the testator’s] arm-chair”, is consistent with the approach of interpretation by reference to the factual context.
Marley v Rawlings has been applied in a number of single judge decisions in Australia.
This approach is conducive to coherence in the law of construction of instruments consistent with the approach taken in the joint reasons of Heydon and Crennan JJ in Byrnes v Kendle.
While the task of the Court in construing the will is to ascertain the intention of the testatrix, the Court must take care to avoid interpreting the will on the basis of some a priori assumption about the testatrix’s intentions. The surest guide to the testatrix’s intention is the language of her will. Her expressed intentions are embodied in its text read in light of the surrounding circumstances in accordance with the armchair principle. The search is for her expressed intentions, not what she meant to say, but what she actually said.
[Citations omitted]

As the Full Court explained, the task of construing a will is an objective exercise. The Court seeks to ascertain the testator’s actual testamentary intentions from a consideration of the terms of the will read as a whole. The Court’s role is not to give a more rational meaning to the deceased’s will but merely to determine the intention as stated, or interpret what has been expressed in the will. There is tension in how some of these principles are to apply. On their face some can appear to be contradictory. In Serwin v Dolso[5] the Court held that in interpreting words in the context of the will read as a whole, in some circumstances the Court may ignore, change or read in words by necessary implication.[6] However, in An Application by Elizabeth Marie Robinson,[7] Rein J held[8] a will must be so construed that effect is given to every word. The Court has no right to disregard a word provided some meaning can be given to it, and that meaning is not contrary to some intention plainly expressed in other parts of the will. The Court does not as a rule import to the testator an intention that he uses additional words without some additional purpose or without any purpose at all.
[5]    Serwin v Dolso [2020] NSWSC 370.
[6]    Serwin v Dolso [2020] NSWSC 370 at [52] adopting the reasons of McMillan J in Re De Bruyn [2016] VSC 6 at [17].
[7] [2015] NSWSC 1387.
[8]    An Application by Elizabeth Marie Robinson [2015] NSWSC 1387 at [27].
It seems to me that the tension between these two statements of principle can be resolved on the basis that a court, reading the will as a whole, cannot ignore any word within the document in identifying the testator’s intentions as a whole. No language within a will should be treated as otiose and disregarded unless the general purpose is violated by its effect or the language is altogether impracticable of application.[9]
[9] Re Hewitt [1945] SASR 102 at 107.
The contentions of the parties
The applicant submits the basic scheme of the will evidences a testamentary intention on the part of the deceased pursuant to which the residue of her estate was to be gifted to her husband Nelson and, if that gift failed, then it would go equally to those of her three sons who survived her, with a further gift over in the event that any one of them did not survive her.
The first to fourth respondents submit that the plain meaning of the entire will leads to a construction that enlivens paragraph 6.4(c) of the will. They submit that any other reading would result in that paragraph being otiose contrary to the applicable principles of construction. Alternatively, they submit that the phrase “and (c)” should necessarily be implied in paragraph 6.4(a) to give the entire will its natural construction so that paragraph should read:
“Subject to paragraph (b) and (c), to divide …”
On that basis they submit that Ian failed to attain a vested interest in the deceased’s estate as his interest was contingent and had not vested prior to his death. Indeed, Ian could not have attained a vested interest in the deceased’s estate because a grant of probate had not been issued or even applied for in the deceased’s estate prior to Ian’s death. As a result, it is submitted that the benefit that Ian would have received from the deceased’s estate is now held on trust according to paragraph 6.4(c) of the will i.e. one half for the fifth respondent and the other half to the first to fourth respondents in equal shares.
The fifth respondent submits that the meaning of paragraph 6.4(a) is clear and unequivocal. In contradistinction to subparagraph 6.4(b), subparagraph 6.4(a) is not made subject to subparagraph 6.4(c). The deceased has treated subparagraphs (b) and (c) in different ways. In the absence of error being proved in the drafting of the will the obvious conclusion is that the deceased did not intend to make subparagraph 6.4(a) subject to subparagraph 6.4(c). The direction found in subparagraph 6.4(a) that the executors receive, under the introductory words to clause 6, the deceased’s estate upon trust “to divide the residue … equally among those of my children … who survive me” is simple and clear. The only qualification for the entitlement to that share of the residue of any of the three named principal beneficiaries is that the named child survives the deceased. There is no other contingency expressed in paragraph 6.4(a) before the beneficiary becomes entitled, in interest, to receive the gift of a share of the residue. The fifth respondent submits that once Ian had survived the deceased on her death, which he did, his entitlement to an equal share of the residue pursuant to paragraph 6.4(a) had crystalised or vested in interest. There was no further requirement to be satisfied before the gift given by paragraph 6.4(a) took effect. She submits that as paragraph 6.4(a) is not made subject to paragraph 6.4(c) it follows that there is no other provision of the will which could operate to divest the gift given to Ian by paragraph 6.4(a).
The correct construction
In my view the proper construction of paragraph 6.4 of the will read in context is that in the circumstances of this case what would have been Ian’s one-third share of the deceased’s residual estate is to be gifted over to the respondents in accordance with the terms of paragraph 6.4(c). In my view the will provides a three-limbed test in order for the gift in paragraph 6.4(a) to be effective. Ian, like David and Gregory, must have been alive when the deceased made her will, alive when the deceased died and have attained a vested interest prior to his death in order to take a one-third share of the deceased’s estate in accordance with the testamentary disposition made by paragraph 6.4(a).
This construction has the result that, in the case of Ian, the gift provided by paragraph 6.4(a) is made subject to paragraph 6.4(c) in circumstances where satisfaction of the conditions in paragraph 6.4(c) is not made express in his case, unlike the case of his brothers, which are expressly subject to paragraph 6.4(b). Nonetheless I am satisfied that this is the correct construction properly reflecting the deceased’s actual intention.
I reach this conclusion for a number of reasons.
First, notwithstanding that clause 6.4(a) imposes a single test of survival in order for Ian to qualify for the gift, that construction would impermissibly involve reading paragraph 6.4(a) in isolation. Reading the will as a whole, reveals a contrary intention to the terms of paragraph 6.4(a).
The Court’s first task, if it is possible, is to ascertain the basic scheme which the deceased had conceived for dealing with her estate and then to construe the will, if possible, to give effect to that scheme. When the will is read as a whole, it is apparent that a scheme is revealed, the purpose of which is to divide equally the residue of the deceased’s estate between her three sons, and recognises the different circumstances of Ian on one hand and David and Gregory on the other hand. I am satisfied that the deceased intended in making her will to make separate provision for her two sons who had children, as well as Ian who did not have children. This can be seen in the terms of paragraph 6.4(a) which divides the residue of the deceased’s estate in equal shares to her children, David, Gregory and Ian as long as they survive her. While paragraph 6.4(a) provides that the gift conferred by that paragraph is subject to paragraph 6.4(b), I consider it is apparent that the deceased intended there should be a comparable limitation on the gift made to Ian in paragraph 6.4(a), in terms of paragraph 6.4(c) which effects a similar and understandable condition on the gift to Ian that applies to David and Gregory. The difference in drafting between paragraphs 6.4(b) and 6.4(c) reflects the deceased’s intention to adjust the mechanism for gifting over the share of the estate she intended to give Ian compared to the mechanism for gifting over the shares of her estate she intended to leave to David and Gregory.
Second, if the alternate construction for which the fifth respondent contends was adopted there would be no work for paragraph 6.4(c) to perform. To adopt that construction would be contrary to the principle that, in construing a will, effect is to be given to every word[10] and no words should be treated as otiose and disregarded unless the general scheme of the will is violated by its terms or effect or its application is rendered impracticable.[11]
[10] Re Hewitt [1945] SASR 102 at 107.
[11] Re Hewitt [1945] SASR 102 at 107 citing Re Croxon; Croxon v Ferrers [1904] 1 Ch 252 at 258.
In this case the general scheme of the will would be frustrated if the Court was to construe paragraph 6.4 in the way submitted by the fifth respondent. In order to avoid that outcome the Court in this case must, by necessary implication, read in words that make the operation of paragraph 6.4(a) subject to paragraph 6.4(c).
Third, the terms of clause 6.4(a) when read in the context of the will read as a whole, expressly contemplated three circumstances in which the deceased’s sons’ share of the gift is to go to the gift over beneficiary. The separate identification of these three circumstances supports an inference that the deceased understood them to differ from each other.[12]
[12] Kinloch v Manzione [2022] ACTSC 76 at [17].
Construing the will as a whole satisfies me that the deceased intended to gift her residuary estate in three equal parts to her children if they survived her and, if they survived her, had attained a vested interest in the residuary estate.
However, in the alternative, the fifth respondent submits that even if the will is read as being subject to clause 6.4(c), the qualifying events for gifting a third of the residuary estate to Ian pursuant to paragraph 6.4(c) is satisfied because Ian survived the deceased and attained a vested interest in the deceased’s estate before his death.
I do not accept this submission.
The fifth respondent submits that Ian attained a vested interest in his share of the residuary estate upon the deceased’s death.
This submission directs attention to the meaning of the expression in paragraph 6.4(c), and for that matter, paragraph 6.4(b).
Vested interests are either vested in possession or vested in interest.[13]
[13] A. Learmonth KC, C. Ford and T. Fletcher, Theobald on Wills (Sweet & Maxwell, 19^th ed., 2021) at [34-001].
In Williams on Wills[14] the learned author states that the proper legal meaning of the word “vest” is to vest in interest, and when a testator uses this word by directing, for example, that a gift is to vest on a certain event, it must in general be given its proper legal meaning, and the gift is then contingent until the happening of that event. In cases where there is a doubt as to the time of vesting, the presumption is in favour of early vesting of the gift and accordingly it vests on the death of the testator or at the earliest moment after that date which is possible in the context, whether the gift is of real or personal property. It is presumed that the testator intended the gift to be vested rather than remain in suspense. A bequest making no reference to the time of vesting takes effect at the testator’s death unless this date would disturb provisions already made in the will, or unless an intention that the bequest shall operate at a later date clearly appears.
[14] C.H. Sherrin, R.F.D Barlow and R.A. Wallington, Williams on Wills (6^th ed., 1987) at 673-674.
In Fairbairn v Varvaressos[15] Campbell JA, with whom Macfarlan JA and Young JA agreed, said the preference of the law is to construe a gift as being vested if the language permits.
[15] [2010] NSWCA 234 at [72], (2010) 78 NSWLR 592.
In this case however, I consider the language does not permit vesting at the time of the deceased’s death. That conclusion follows from the terms of paragraph 6.4(c) which identifies three distinct events which, if they have occurred, would require the gifting over of what would otherwise be Ian’s share of the residuary estate, in accordance with the terms of paragraph 6.4(c). If the interest vested upon the deceased’s death, there would be no need to identify the time Ian attains a vested interest as a relevant event if it means no more than when the deceased died. If “vested” merely means outlived the deceased then no work is performed by the condition of vesting in paragraph 6.4(c). The reference to “before attaining a vested interest” would be rendered mere surplusage.
The addition of the words “dies before attaining a vested interest” indicate that merely by surviving the deceased Ian was not to be treated as having a vested interest and that more was required. In my view, in the context of this will, to require that Ian attained a vested interest before he died, the estate must have been administered to the point that the executors were ready, or ought to have been ready to distribute the relevant amount to Ian prior to his death.[16] The evidence does not prove that this was the true situation. Accordingly, the necessary condition for Ian to take under the will was not established.
[16] Application by Elizabeth Marie Robinson [2015] NSWSC 1387 at [28].
Finally, I accept the submission by the fifth respondent that the relevant provisions in the wills considered in Serwin,[17] De Bruyn,[18] Robinson[19] and Kinloch[20] are in materially different terms from paragraph 6.4. However, the reasons by which I have reached the conclusion that Ian’s share of the residuary estate, as provided for in paragraph 6.4(a), is subject to the operation of paragraph 6.4(c) and that he died before attaining a vested interest in the estate, such that his one-third share of the residuary estate must be gifted over in accordance with paragraph 6.4(c), does not depend on a comparison of the specific terms of the provision in those wills. The basis for the conclusion in this case is not reached by any particular comparison of other wills in other cases.
[17] Serwin v Dolso [2020] NSWSC 370.
[18] Re De Bruyn [2016] VSC 6.
[19] Application by Elizabeth Marie Robinson [2015] NSWSC 1387.
[20] Kinloch v Manzione [2022] ACTSC 76.
Conclusion
Accordingly, the answer to the question asked by the executor as to whether, in the events that have happened and on the proper construction of the last will of Marie Clare Walkom dated 29 August 2019, the gift of one-third of the residuary estate in clause 6.4 of the will to Ian William Walkom (now deceased) is to be distributed pursuant to clause 6.4(c).
I will hear the parties as to costs.

[2025] SASC 71

20 May 2025