Edmonds v Morrissey - [2016] NSWSC 342

Supreme Court

New South Wales

Medium Neutral Citation: Edmonds v Morrissey [2016] NSWSC 342
Hearing dates: 2 November 2015, 22 February 2016
Date of orders: 31 March 2016
Decision date: 31 March 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Declaration made that gift in remainder of real estate is shared equally by the plaintiff and the first defendant as tenants in common.

Catchwords: SUCCESSION – wills – construction of will – “issue children” – whether intention to narrow usual meaning of “issue” – whether sufficiently clear that words were used in error when other words must have been intended
Cases Cited: Aboud v Aboud [1960] NSWR 498
Butlin v Butlin (1966) 113 CLR 353
Fell v Fell (1922) 31 CLR 268
In re Dayrell; Hastie v Dayrell [1904] 2 Ch 496
Matthews v Williams (1941) 65 CLR 639
Re Cook (deceased); Fellows v Boyd [1968] 1 NSWR 796
Tatham v Huxtable (1950) 81 CLR 639
Category: Principal judgment
Parties: Nola Anne Edmonds (Plaintiff)
John Patrick Morrissey (First Defendant)
Paul Shiels (Second Defendant)
Peter Shiels (Third Defendant)
Representation:
Counsel:
N A Confos and T Skinner (Plaintiff)
G Mahony (First Defendant)
P Blackburn-Hart SC and N Avery-Williams (Second and Third Defendants)
Solicitors:
H T Piper, Armidale (Plaintiff)
Neil Jones, Orange (Defendant)
Fox Legal, Armidale (Second and Third Defendants)

File Number(s): 2015/147847
Publication restriction: None

Judgment

Introduction

These proceedings concern the last will of Mr John Morrissey (“the testator”) who died on 2 July 1948. In particular, the proceedings are concerned with a gift in remainder of the testator’s real property.
The plaintiff, Nola Anne Edmonds (nee Morrissey), and the first defendant, John Patrick Morrissey, are the trustees under the last will of the testator dated 28 October 1938. They are grandchildren of the testator, and children of the testator’s son Thomas Patrick Morrissey. Thomas Patrick Morrissey had another child, Imelda Clare Shiels, who died on 17 October 1987. Thomas Patrick Morrissey himself died on 30 September 1993.
A difference of opinion emerged between the plaintiff and the first defendant as to whether the gift in remainder is shared equally by the plaintiff and the first defendant, or whether it is shared by the plaintiff as to one third, the first defendant as to one third, and the children of Imelda Shiels equally as to the remaining third.
By a Summons filed on 18 May 2015 the plaintiff sought judicial advice in relation to this difference of opinion. The first defendant was then the only defendant. The first defendant (who is 85 years of age) and the plaintiff (who is 77 years of age) took opposing sides. The matter so constituted came on for hearing on 2 November 2015.
When the matter was called on I expressed the view that proceeding by way of a Summons for judicial advice was not appropriate in circumstances where questions of construction were involved, and where not all interested persons or potentially affected persons were made parties to the proceedings or otherwise given an opportunity to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edmonds v Morrissey

Details

AGLC: Edmonds v Morrissey [2016] NSWSC 342
Case: [2016] NSWSC 342
Decision Date: 31 March 2016

CaseChat Overview and Summary

The case of Edmonds v Morrissey involved a dispute over the interpretation of a will, specifically regarding the term "issue children." The deceased had made a will that included a bequest to his "issue children." The dispute arose between the deceased's sister and his former wife, each claiming to be the rightful beneficiary of the bequest. The court was required to determine whether the term "issue children" was intended to have a narrower meaning than the usual meaning of "issue," which includes both children and their descendants.

The central legal issue was whether the term "issue children" was used in error and should be interpreted to mean the usual definition of "issue." The court considered whether the language of the will was clear enough to indicate that the term "issue children" was used by mistake. The deceased's sister argued that the term "issue children" should be interpreted to include only the direct descendants of the deceased, while the former wife contended that it should encompass all of the deceased's descendants. The court had to determine whether the term "issue children" was sufficiently clear to be understood as an error when another term must have been intended.

The court found that the term "issue children" was not used in error and should be interpreted in its usual sense, which includes both children and their descendants. The court reasoned that there was no clear evidence to suggest that the term "issue children" was intended to have a narrower meaning. The language of the will did not provide sufficient clarity to support the argument that the term was used by mistake. As a result, the court upheld the usual meaning of the term and ruled in favour of the former wife, who was entitled to the bequest as one of the deceased's descendants. The court's decision was based on the principle that the language of the will should be interpreted in a way that is consistent with its ordinary meaning, unless there is clear evidence to the contrary.

Orders