Estate of Grahame David Wright - [2016] NSWSC 1779

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Grahame David Wright [2016] NSWSC 1779
Hearing dates: 8 December 2016
Date of orders: 08 December 2016
Decision date: 08 December 2016
Jurisdiction: Equity - Probate List
Before: Kunc J
Decision:
Will rectified

Catchwords: WILLS, PROBATE AND ADMINISTRATION – Construction – Whether “descendants” and “children” included step-grandchildren – Whether rectification available out of an abundance of caution – Succession Act 2006 (NSW), s 27
Legislation Cited: Succession Act 2006 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Cases Cited: Estate of Jack Alexander Warren [2001] NSWSC 104
Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No 2) [2014] NSWSC 1059
Rawack v Spicer [2002] NSWSC 849
Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274; (2010) 3 ASTLR 619
Category: Principal judgment
Parties:
Lesley McPherson, James Wright and Christopher Kirkwood as Executors of the estate of the late Grahame David Wright (Plaintiffs)
David Charles Wright (First Defendant)
Tara Elizabeth Wright (Second Defendant)
Representation:
Counsel:

T Maltz (Plaintiffs)

Solicitors:
TressCox Lawyers (Plaintiffs)

File Number(s): 2016/214511
Publication restriction: No

EX TEMPORE JUDGMENT (REVISED)

Summary

The plaintiffs and the first defendant are the executors and trustees of the will of the late Grahame David Wright (“Mr Wright”) made on 27 June 2014 (the "Will"). By summons filed on 15 July 2016, the plaintiffs seek declarations as to the proper construction of certain parts of the Will and, if necessary, orders for rectification.
The proceedings raise four questions:

Whether, upon the proper construction of the Will, references to "descendants" and "children" include Mr Wright's step-grandchildren?

Whether an order extending the time for making the present application for rectification under s 27 of the Succession Act 2006 (NSW) (the "Act") should be granted?

Whether certain clerical errors in relation to the identity of the trustees of trusts created by the Will should be rectified?

Whether the references to “descendants” and “children” in the Will should be rectified to make it clear that they include Mr Wright's step-grandchildren?

As a result of directions made by Lindsay J sitting as Probate Judge on 15 August 2016, all persons interested in these questions (including the step-grandchildren) are represented today before the Court. They all agree that the relief sought by the plaintiffs should be granted. That agreement does not relieve the Court of its obligation to be satisfied that the relief, or any other relief, should be granted.
The Court notes with gratitude that both the evidence and submissions have been thoroughly prepared and presented by the legal representatives of the plaintiffs. That enables the matter to be dealt with today in relatively short compass. The plaintiffs were represented by Mr T Maltz of Counsel. The defendants appeared for themselves. The brevity with which I propose to deal with the matter is not intended to diminish the assistance which the Court has derived from the careful and compendious submissions that have been presented by counsel.

The facts

Without any disrespect intended, I shall…

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: [2016] NSWSC 1779
Decision Date: 08 December 2016

CaseChat Overview and Summary

The case of the Estate of Grahame David Wright involved a dispute over the distribution of assets under his will. The will specified that assets were to be distributed to his "descendants" and "children." The court was required to determine whether the term "descendants" included step-grandchildren, and whether the term "children" included step-grandchildren. Additionally, the court considered whether rectification of the will was appropriate to ensure the testator's intentions were carried out.

The court examined the relevant provisions of the Succession Act 2006 (NSW), particularly section 27, which defines "children" and "descendants." The court noted that "children" is defined to include only biological or adopted children, while "descendants" is not explicitly defined but is generally interpreted to include all biological or adopted descendants. The court found that step-grandchildren did not fall within the definition of "children" or "descendants" as per the Act. The court also considered the issue of rectification, finding that while it is a remedy available to correct obvious errors or omissions, there was no clear evidence of the testator's intention to include step-grandchildren. Therefore, rectification was not warranted in this instance.

The court concluded that the terms "descendants" and "children" in Grahame David Wright's will did not include step-grandchildren. As a result, the assets were to be distributed to his biological or adopted descendants and children. The court denied the application for rectification, finding no basis to alter the clear terms of the will. This decision ensures that the distribution of assets adheres to the testator's express intentions as defined by the legislation.

Orders