Estate of Tanner - [2025] NSWSC 1078

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Tanner [2025] NSWSC 1078
Hearing dates: 25 August 2025; supplementary written submissions 26 and 27 August 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Jurisdiction: Equity
Before: Bennett J
Decision:
(1)   DECLARE that on the true construction of the Will of the late Hilda Marion Tanner (the deceased) dated 16 December 2021, the plaintiff is entitled to an equal (1/3rd) share of the rest and residue of the deceased’s estate (after the payment of the pecuniary legacies set out in clauses [3](a) and [3](b) of the deceased’s Will, and the reasonable costs of administration of the estate), subject to the terms or directions in clause [5] (and clause [4]) of that Will.
(2)   ORDER that the Summons be otherwise dismissed.
(3)   ORDER that the plaintiff pay the costs of the defendants.

Catchwords:
SUCCESSION – Construction – Gifts – Where deceased’s will provided for a gift of residue to three children, including the plaintiff, in equal shares – Where deceased’s will also provided for land previously transferred to the plaintiff to be “brought into account” and “taken in satisfaction to that extent” – Whether gift of residue to the plaintiff should be construed as subject to reduction by the value of the land previously transferred to him – Principles for construction of wills – Whether “scheme” of will should be considered – Hotchpot clauses

Legislation Cited:
Law Reform (Succession) Act 1995 (UK), c 41, Sch 1, s 1
Statute of Distribution 1670, 22 & 23 Cha 2, c 10, s 3
Succession Act 2006 (NSW), ss 32, 140
Wills, Probate and Administration Act 1898 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Estate of Chaddock (Deceased) [2025] NSWSC 463
Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932
Federal Commissioner of Taxation v Lane (2020) 283 FCR 448; [2020] FCAFC 184
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Re Courtenay House Capital Trading Group Pty Ltd (In Liq) [2020] NSWSC 780
Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371
Re Tennant (1942) 65 CLR 473; [1942] HCA 3
Reeves v Reeves [2024] NSWSC 134

Category: Principal judgment
Parties:
John Andrew Tanner (Plaintiff)
James Colin Tanner (First Defendant)
Susan Louise Travers (Second Defendant)
Representation:
Counsel:
D Flaherty (Plaintiff)
A Katsoulas (with J Lee on the written submissions) (Defendants)
Solicitors:
Kate Mailer & Associates (Plaintiff)
Sparke Helmore (Defendants)

File Number(s): 2025/00127492
Publication restriction: Nil

JUDGMENT

Introduction

Procedural context

By Summons filed on 3 April 2025, John Andrew Tanner (the plaintiff) seeks declaratory (and other) relief regarding the proper construction of the will of the late Hilda Marion Tanner (the deceased) dated 16 December 2021 (the Will). The plaintiff is the son of the deceased. The first and second defendants, James Colin Tanner and Susan Louise Travers (together, the defendants), are the other children of the deceased, as well…

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: [2025] NSWSC 1078
Decision Date: 19 September 2025

CaseChat Overview and Summary

The case of the Estate of Tanner involved a dispute among the beneficiaries of the deceased's estate. The plaintiff, one of the three children mentioned in the will, contested the interpretation of the will which included provisions for gifts of residue to be shared equally among the children. The will also contained a clause that directed a specific parcel of land, previously transferred to the plaintiff, to be "brought into account" and "taken in satisfaction to that extent." The plaintiff argued that the gift of residue should not be reduced by the value of the land in question, while the other beneficiaries contended that the language of the will necessitated such a reduction.

The legal issues before the court were primarily concerned with the interpretation of the will and the application of principles of will construction to determine the meaning of the relevant clauses. The court needed to decide whether the gift of residue to the plaintiff should be construed as being subject to a reduction by the value of the land previously transferred, and whether the overall "scheme" of the will should be considered in this construction. The specific wording of the clauses and the established legal principles regarding the construction of wills and the operation of so-called "hotchpot" clauses were central to the court's deliberations.

The court examined the language of the will and the established legal principles concerning will construction. It found that the phrase "brought into account" and "taken in satisfaction to that extent" indicated that the value of the land in question should indeed be deducted from the gift of residue to the plaintiff. The court concluded that the language of the will was clear and unambiguous, and that there was no need to consider the overall "scheme" of the will to interpret these specific clauses. The court rejected the plaintiff's argument that the gift of residue should not be reduced by the value of the land, adhering to the principle that the language of the will should be given effect as written, provided it is clear and unambiguous.

The final orders of the court confirmed the interpretation of the will as decided. The gift of residue to the plaintiff was held to be subject to reduction by the value of the land previously transferred to him. The court directed that the estate be administered in accordance with this interpretation, ensuring that the will was given effect in line with the clear and unambiguous language used by the deceased.

Orders