Equity Trustees Wealth Services Limited v Astill - [2023] NSWSC 1209

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209
Hearing dates: 7 June 2023
Date of orders: 11 October 2023
Decision date: 11 October 2023
Jurisdiction: Equity
Before: Richmond J
Decision:
See [76]–[78] parties to bring in short minutes of order to reflect these reasons.

Catchwords:
SUCCESSION — construction — general principles — presumption against intestacy
SUCCESSION — construction — general principles — structure and scheme of will
SUCCESSION — construction — use of extrinsic evidence — ambiguity on the face of the will
SUCCESSION — construction and effect — validity of gift — conflicting instructions to executor

Legislation Cited:
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Trustee Act 1925 (NSW)
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Betts v Connolly (1970) 120 CLR 417; [1970] HCA 18
Butlin v Butlin (1966) 113 CLR 353; [1966] HCA 4
Cobcroft v Bruce (2013) 9 ASTLR 397; [2013] NSWSC 774
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
Estate of Kallidis; Kallidis v Kallidis [2012] NSWSC 1485
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Farrelly v Phillips (2017) 128 SASR 502, [2017] SASCFC 111
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
In re Harrison (1885) 30 Ch D 390
In re Solomon [1946] VLR 115
Marley v Rawlings [2015] AC 129, [2014] UKSC 2
Parry v Haisma [2012] NSWSC 290
Perrin v Morgan [1943] AC 399
Rawstron v Freud [2014] EWHC 2577
Re Bowen (deceased) [1965] VR 113
Re Doland’s Will Trusts [1970] Ch 267
Re Michell (deceased) (1971) 2 SASR 312 at 320
Re Redfern (1877) 6 Ch D 133
Re Smith [1948] Ch 49
Re Whelan [1961] VR 706
Re Whitrick(deceased) [1957] 1 WLR 884
Tatham v Huxtable (1950) 81 CLR 639; [1950] HCA 56
Thomson v Thomson [2008] VSC 375
Towns v Wentworth (1858) XI Moore 526; 14 ER 794

Texts Cited:
Alexander Learmonth QC et al, Theobold on Wills (Thomson Reuters, 19th ed, 2021)
G E Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2021)

Category: Principal judgment
Parties: Equity Trustees Wealth Services Limited (Plaintiff)
Peter John Astill (Defendant)
Representation:
Counsel:
Mr H Morrison with Ms A Green (Plaintiff)
Ms P Thew (Defendant)
Solicitors:
Bartier Perry (Plaintiff)
Nash Allen Williams & Wotton (Defendant)

File Number(s): 2022/161343
Publication restriction: Nil

JUDGMENT

These proceedings concern the construction of the will dated 15 August 1988 of the late Cedric Charles Hopping (the Will). Under the Will, the deceased (Cedric) left a right of residence in a property at 1 Summerside Street, Toukley, NSW (the Toukley property) to Margaret Astill (Margaret). The central issue is who, on the proper construction of cll 3 and 4 of the Will, is entitled to the remainder interest in the Toukley property.
The plaintiff, Equity…

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.

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Details

Case: [2023] NSWSC 1209
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the case of Equity Trustees Wealth Services Limited v Astill, the dispute arose from the interpretation of a deceased's will, leading to contention over the distribution of the estate. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the will should be interpreted in a way that would result in partial intestacy, which the court must avoid unless necessary. The court had to decide whether extrinsic evidence could be used to resolve apparent ambiguities in the will and how to reconcile conflicting instructions given to the executor.

The court examined the structure and scheme of the will to understand the deceased's intentions. It considered whether the use of extrinsic evidence was permissible to clarify the meaning of the will when there was ambiguity on its face. The court also had to determine the validity of the gifts made in the will in light of conflicting instructions provided to the executor by the deceased. The court needed to ensure that the will was interpreted in a way that gave effect to the deceased's intentions without resulting in partial intestacy.

The court concluded that the will should be interpreted to avoid partial intestacy where possible. It held that extrinsic evidence could be used to resolve ambiguities on the face of the will, but only if necessary to ascertain the deceased's true intentions. The court found that the instructions given to the executor were valid and should be followed to the extent they were consistent with the will's provisions. The court held that the will should be construed to give effect to the deceased's intentions as clearly expressed, and where there were conflicting instructions, the court would give precedence to those that were consistent with the will.

The court ordered that the estate be distributed in accordance with the deceased's instructions, as interpreted by the court. The court also directed that any extrinsic evidence that could clarify the deceased's intentions should be considered in the distribution of the estate. The decision underscored the importance of interpreting wills to give effect to the deceased's intentions while avoiding partial intestacy and the need to reconcile conflicting instructions with the will's provisions.

Orders