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

1. 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 as the named executors of the Will. The husband of the deceased and father of the three children, Craig Owen Tanner (Mr Tanner), died on 14 May 2008.

2. More specifically in relation to the Summons, the plaintiff seeks the following relief:

1. A determination as to whether, upon the true construction of the last Will of the late Hilda Marion Tanner, Deceased, dated 16 December 2021, Probate of which was granted to the 1^st and 2^nd Defendants on 15 August 2024, the Plaintiff is entitled to an equal (1/3^rd) share of the whole of the rest and residue of the Decease’s estate (after the payment of the pecuniary legacies set out in clauses 3 (a), 3 (b) and 3 (c) of the Deceased’s Will) without regard to the terms or directions in clause 5 of that Will.

2. A Declaration that the Plaintiff is entitled to an equal one third share of the whole of the rest and residue of the estate of the Deceased after the payment of the reasonable costs of administration of the Deceased’s estate and the pecuniary legacies set out in clauses 3 (a), 3 (b) and 3 (c) of the Deceased’s Will only.

3. An order that the 1^st and 2^nd Defendant forthwith do all things reasonably necessary to effect payment of the whole of an equal one third share of the Deceased’s estate (after the payment of reasonable administration costs and the payment of the pecuniary legacies set out in clauses 3 (a), 3 (b) and 3 (c) of the Deceased’s Will only) to the Plaintiff.

4. Costs

5. Such further or other order that the Court thinks fit.

3. The Summons was heard on 25 August 2025. Mr D Flaherty of counsel appeared for the plaintiff and Mr A Katsoulas appeared for the defendants. Each of the plaintiff and defendants provided written submissions (PWS and DWS respectively). Mr J Lee of counsel assisted Mr Katsoulas with the preparation of the DWS.

4. The plaintiff read and relied on an affidavit affirmed by the plaintiff. The defendants read and relied on two affidavits, one affirmed by the second defendant, and one affirmed by the solicitor who took instructions for the Will and who is otherwise acting for the executors in the administration of the estate.

5. Amongst a number of objections to the defendants’ evidence made by the plaintiff was an objection to evidence that went to the actual intentions of the deceased, for example, by way of the solicitor’s evidence of the instructions the deceased provided for the Will. After hearing argument on the issue, the evidence of actual intention was admitted into evidence for the purposes of providing “contextual background” only. This being so, in closing submissions, no party sought to rely on that evidence inconsistent with that ruling, it not being contended that evidence of actual intention came within the terms of s 32 of the Succession Act 2006 (NSW).

6. No witness was required for cross-examination.

7. In oral submissions on the morning of the hearing, for the first time the defendants sought to rely on legal principles as they relate to “hotchpot” clauses, and counsel for the defendants made oral submissions accordingly. Out of fairness to the plaintiff, I made orders that the parties provide supplementary written submissions on the “hotchpot” issue (and any other issue arising by way of reply), with the defendant’s supplementary written submissions due on 26 August 2025 at 4:00pm (DSWS), and with the plaintiff’s written submissions in reply due 27 August 2025 at 4:00pm (PSWS). Both parties provided their supplementary written submissions in accordance with the orders made.

Terms of the Will and Issues

8. The pertinent clauses of the Will are set out below (underlining in original):

[3] I GIVE the whole of my estate to my trustees UPON TRUST as follows:

(a) AS TO a pecuniary legacy in the sun of TEN THOUSAND DOLLARS ($10,000.00) for my dear friend KEVIN TAYLOR in recognition of the years of kind care and friendship he and his late wife Faye have given me;

(b) AS TO a pecuniary legacy in the sum of FIFTY THOUSAND DOLLARS ($50,000.00) for each of my grandchildren JOHN HENRY TANNER TRAVERS, WILLIAM JAMES TANNER TRAVERS, LUCY BEATRICE PENRITH TANNER and ISABEL MAY PENRlTH TANNER. who shall survive me and attain the age of twenty-five (25) years;

(c) AS TO the rest and residue of my estate for my children JAMES COLIN TANNER, SUSAN LOUISE TRAVERS and JOHN ANDREW TANNER in equal shares.

[4] I DIRECT that any sum advanced by me during my lifetime to my son JAMES COLIN TANNER (and as recorded in my private books) shall be brought into account and taken in satisfaction to that extent of the gift in his favour in Clause [3](c).

[5] I ALSO DIRECT that the parcel of land formerly being part of ‘Eyton’ and transferred to my son JOHN ANDREW TANNER by my late husband and I during our lifetimes shall also be treated as an advancement to John and shall be brought into account and taken in satisfaction to that extent of the gift in his favour in Clause [3](c). If John shall still own that parcel as at the date of my death, then I DIRECT that its value, for the purpose of this clause, shall be its market value as at the date of my death as determined by a registered valuer appointed by my trustees. If it shall have been sold prior to my death, its value for the purpose of this clause shall be deemed to be its sale price.

9. I note that the relief sought in the Summons requests the Court to deal with the question of the plaintiff’s entitlement under the Will to the rest and residue of the deceased’s estate after the payment of “pecuniary legacies set out in clauses 3 (a), 3 (b) and 3 (c) of the Deceased’s Will” (emphasis added). The reference to a “pecuniary legacy” set out in clause [3](c) of the Will appears to be an error, as that sub-clause makes no such legacy. In any event, in his written submissions, the plaintiff made clear that the dispute was as to the plaintiff’s entitlement to an equal (1/3^rd) share of the rest and residue of the estate after the payment of the pecuniary legacies set out in clauses [3](a) and [3](b) as well as reasonable administration expenses: PWS at [2.5]-[2.7].

10. The relief sought by the plaintiff therefore raises the following question for determination: upon the true construction of the Will of the deceased, is the plaintiff entitled to an equal (1/3^rd) share of the whole of the rest and residue of the deceased’s estate without regard to the terms or directions in clause [5] (and clause [4]) of the Will?

11. At its highest, the plaintiff contends that the terms of clause [3](c) have a plain meaning and that the expressed intention of the deceased is clear and unambiguous. Of clause [5], he submitted that the deceased did not have the power to do what she purported to do in that clause.

12. The defendants contend that the Will must be looked at as a whole, and that clause [5] (and clause [4]) adjusts the gift to the plaintiff (and the first defendant) under clause [3](c) to account for advancements by the deceased and her husband during their lifetimes.

13. For the reasons set out below, having regard to the whole of the Will and surrounding circumstances, I accept the construction of the Will contended for by the defendants is correct. That is, the plaintiff’s entitlement to an equal, one-third share of the rest and residue of the deceased’s estate pursuant to clause [3](c) of the Will is subject to the directions in clause [5] (and clause [4]) of that Will.

Factual background

14. The basic facts comprising the background to this application do not appear to be in dispute.

15. The deceased and Mr Tanner (the parents) are the parents of the plaintiff and the defendants.

16. In 2001, the parents were the registered proprietors of property referred to as the “Blandford Property” (and also referred to as “lot X deposited plan XXXXX XX” – see paragraph 29 below). At that time, that parcel of land was part of a property, also owned by the parents, known as “Eyton”.

17. By a memorandum of transfer dated 16 January 2001, the parents transferred the Blandford Property to the plaintiff and his wife (the Transfer).

18. The signed proforma “Transfer” document recorded that the transferors acknowledged receipt of the consideration of $100,000.

19. On the issue of consideration, there was no evidence before the Court that any consideration was actually paid. In his affidavit, the plaintiff simply states that “[t]he consideration recorded on the Transfer was $100,000” and does not provide any evidence as to actual payment of consideration or otherwise suggest that any consideration was actually paid.

20. Related to the consideration issue, and in relation to whether the Transfer was in fact a gift, the defendants made the following submission, when referring to clause [5] of the Will (TR P15 L48-49):

There is a reference to a parcel of land that was gifted by the deceased and, in fact, it was gifted by the deceased and her late husband jointly. Whether that’s right or wrong is, in my submission, immaterial.

21. In this, I understand the defendants to be submitting that, in construing this Will, the Court is not required to decide whether the Transfer was actually a gift, and whether no consideration was actually paid or expected to be paid.

22. I accept this submission and do not propose to make any finding as to whether the Transfer in fact represented a gift. In any event, I observe that there would have been a very slim evidentiary basis on which the Court would have been able to consider the issue.

23. For his part, the plaintiff in his oral submissions also referred to the Transfer as a gift. To provide just two examples to make the point, his counsel stated:

1. at TR P9 L14-16: “She [the deceased] made a gift of property 20 years ago and partly with her husband and also a gift was to his son and his then current wife …”; and

2. at TR P12 L12-14: “Irrespective of whether the sum of $100,000 was paid or not paid there is a presumption of [advancement] in any event”.

Other examples in the transcript of where the Transfer was referred to by the plaintiff as a “gift” can be found at TR P12 L13, P12 L28, P12 L45 and P13 L13.

24. I observe that whilst the plaintiff appeared to me to assume it was common ground that the Transfer represented a gift, he did not make any explicit submissions in relation to this issue nor did he put before the Court any evidence (other than the Transfer itself) going to the issue.

25. To repeat, I make no finding as to whether the Blandford Property was in fact a gift – that issue does not influence the resolution of this dispute.

26. On the same day as the Transfer was executed (16 January 2001), the parents informed the defendants that the parents had carried out the Transfer.

27. The plaintiff has not sold or otherwise encumbered the Blandford Property since it was transferred in 2001.

28. Mr Tanner made a will on 16 November 2004 (Mr Tanner’s Will).

29. Mr Tanner died on 14 May 2008. Probate of Mr Tanner’s Will was granted to the deceased and Graham Hook on 10 November 2008. The relevant terms of Mr Tanner’s Will provided as follows (underlining in original):

[3] I GIVE DEVISE AND BEQUEATH the whole of my estate:

(a) contingently on her surviving me for a period of twenty eight days (referred to as “the period”), to my wife the said HILDA MARION TANNER absolutely; or

(b) if my said wife does not survive me for the period, to my trustees UPON TRUST for such of my children JAMES COLIN TANNER, SUSAN LOUISE TRAVERS and JOHN ANDREW TANNER as shall survive me and if more than one in equal shares PROVIDED that if any child of mine predeceases me, whether before or after the date of my Will, or survives me and dies before attaining a vested interest in my estate leaving a child or children living at my death who attain the age of eighteen years, such issue shall take, and if more than one in equal shares, the share that his her or their parent would have taken had he or she survived me and attained a vested interest.

[4] In my lifetime I have transferred to my son JOHN ANDREW TANNER and his wife EMMA LOUISE TANNER the land comprised in lot X deposited plan XXXXX XX. I DIRECT that the transfer of that asset to them is to be treated as an advancement to JOHN ANDREW TANNER of his entitlement in my estate, and its value as at the date of my death is to be brought into account and treated as an asset of my estate for the purpose of determining the entitlements of my said children therein.

30. The property referred to in clause [4] of Mr Tanner’s Will is the same property referred to in clause [5] of the Will (which appeared to be common ground). As with the Will, this clause in Mr Tanner’s Will directs that the Blandford Property “is to be treated as an advancement to [the plaintiff] of his entitlement in [Mr Tanner’s] estate”, and that its value was to be “brought into account”.

31. As the deceased survived Mr Tanner for a period of 28 days, the whole of the estate was bequeathed to the deceased. Therefore, the terms of clause [4] did not arise for consideration at that time.

32. On 16 December 2021, the deceased made the Will.

33. The deceased died on 19 May 2024. Probate of the Will was granted to the defendants on 15 August 2024.

Legal Principles and admissibility

Construction principles

34. The legal principles to be applied by a court in the construction of a will are well settled, and have recently been summarised by Richmond J in Estate of Chaddock (Deceased) [2025] NSWSC 463 at [22]-[29], as cited by the plaintiff, and which I gratefully adopt:

[22] The starting point for the construction of a will is the following statement of Viscount Simon LC in Perrin v Morgan [1943] AC 399 at 406:

…the 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.

[23] In the same case, Lord Romer said at 420:

… 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. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, 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 has plainly said …

[24] This fundamental principle was recently stated by White JA (with whom Gleeson JA agreed) in De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50]:

The object of construction of a will is to give effect to what can be ascertained, having regard to admissible extrinsic evidence, the testatrix intended by the words she used: Fell v Fell (1922) 31 CLR 268 at 273–274; [1922] HCA 55; Perrin v Morgan [1943] AC 399 at 406, 416. The intention of the testatrix is to be determined from the language of the will read in the light of the circumstances in which it was made. The Court is entitled to sit in the ‘testatrix’s armchair’ to understand the language she employed: Hatzantonis v Lawrence [2003] NSWSC 914, [7] ff (Bryson J).

[25] The ‘armchair principle’ referred to in the above passages was summarised by White J (as his Honour then was) in an earlier decision, Parry v Haisma [2012] NSWSC 290 at [10] (emphasis in original):

There was no real controversy about the admissibility of extrinsic evidence for the purpose of construing the will [see below for discussion of admissibility of extrinsic evidence issues]. In Higgins v Dawson [1902] AC 1 the House of Lords said that evidence of surrounding circumstances could only be adduced where there was ambiguity (at 7, 8 and 11) and endorsed a very narrow approach to finding ambiguity (at 10). That approach is not consistent with the current approach to construction of wills (Perrin v Morgan [1943] AC 399) and was not urged in the present case. Evidence of the circumstances surrounding the testatrix was admissible to assist in the construction of the will so that the court could place itself ‘so to speak, in [the testatrix’s] arm-chair and consider the circumstances by which [she] was surrounded when [she] made [her] will to assist … in arriving at [her] intention’ (Boyes v Cook (1880) 14 Ch D 53 at 56; Allgood v Blake (1872–73) LR 8 Exch 160 at 162). As it was put in Allgood v Blake (at 162):

‘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.’

[26] As part of the process of construction it is necessary to consider the terms of the will as a whole and seek to ascertain the basic scheme which the deceased had conceived for dealing with his or her estate and then to construe the will, if possible, to give effect to that scheme: Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19].

[27] Isaacs J in Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 at 273-275 identified a number of principles of construction, including relevantly the following (citations omitted):

‘(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”

(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” …

(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”…

(4) An inference cannot be made “that did not necessarily result from all the will taken together” … A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed …

(5) “[The Court] cannot give effect to any intention which is not expressed or plainly implied in the language of” the “will” “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” …’

[28] Consistently with the second proposition stated by Isaacs J in Fell v Fell above, a word or phrase used in a will is given its ordinary and natural meaning, unless the context provided by the will as a whole or admissible extrinsic evidence indicates that the testatrix used it in a different sense or the ordinary meaning makes no sense in light of the surrounding circumstances, whereas a secondary meaning does make sense: GE Dal Pont, Law of Succession (3rd ed, 2021, Lexis Nexis) at [8.6]; P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [31.40(6)]. Where the ordinary meaning applies on this approach, it will be adopted even though the result of giving the word its ordinary meaning may appear harsh.

[29] Section 32 of the Succession Act 2006 (NSW) permits the admission of extrinsic evidence to assist in the construction of a will if the will or any part of it is meaningless or ambiguous. It was not suggested that it is relevant in the present case.

35. Each of the plaintiff and defendants relied on the principles set out in Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 (Fell v Fell) in their written and oral submissions.

Scheme of the Will

36. In undertaking the task of construing a will, in some circumstances a court may have regard to the “scheme” of the will. What is meant by this has been recently described by Meek J in Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932 (Hamilton) at [57]-[61] (omitting footnotes) as follows:

[57] Each of the counsel referred to authorities bearing upon the scheme of the Will. Bryson AJ in Muir v Winn [2009] NSWSC 857 (Muir v Winn) at [24] noted some instances in which schemes may be important:

‘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…’

[58] In some texts and case law, a form of construction primacy is claimed for certain guides indicating that ‘The first task is…’, [‘]secondly,…’. Thus, sometimes it is said that searching for a scheme is the first task. It is important to bear in mind that in the construction of a Will, the search is for the testator’s intention. It is not a search for a ‘scheme’ per se. The word ‘scheme’ connotes some plan, design or purpose generally (but not exclusively) with some rationality, connectedness, co-ordination or relationship between elements or parts. Conversely, some schemes in life are said to be harebrained, being irrational. A testator might have had a scheme or plan, or he might not. If there is a scheme or plan, generally speaking, it can be simple or complex. It might be logical and obviously ordered or it might be less so and apparently arbitrary.

[59] Properly understood, the task of searching for a ‘scheme’ or a ‘plan’ is not the unequivocal ‘first’ step or task in Will construction. Rather, it is simply one of a number of analytical or constructive tools to discern the deceased’s intention. The point is illustrated by White J in NSW Trustee and Guardian v Hirsch, who outlined five principles relating to the construction of Wills relevant in that case, the fourth of which was ascertaining whether the deceased had a basic scheme for dealing with the estate.

[60] The principal use of seeking to discern a scheme is that, in cases of doubt or ambiguity, if such discernment reveals a plan or design or purposeful relationship in dispositions of property, that ‘scheme’ might suggest that one of a number of competing possible constructions of the deceased’s intention is more likely than another or others.

[61] Further, without intending to be prescriptive or exhaustive, when judges refer to the usefulness of a scheme of disposition, it often occurs in circumstances where the document is of some length and there are more than a couple of dispositions. There is no need to probe the depth of the scheme approach. It suffices to note that where the dispositive parts of the Will are barely more than a few or several lines of writing (contrasted with texts counted in tens or hundreds of lines), the very paucity of wording may be a factor which tends to undermine the usefulness of detecting the so-called scheme of disposition.

Hotchpot clauses

The hotchpot doctrine

37. The doctrine of hotchpot derives from s 3 of the Statute of Distribution 1670, 22 & 23 Cha 2, c 10 in England in relation to intestacy, which provided for any land which had been advanced to a child (other than the heir at law) of an intestate during the latter’s lifetime to form the estate to be distributed to such child or children of the intestate.

38. As is described in the cases cited below, the doctrine required a child of an intestate who had already received a settlement or advancement to account for that benefit when the estate was distributed. The value of the prior benefit was deducted from the child’s share to ensure that all children received substantially equal portions. The doctrine operated irrespective of the intestate’s actual wishes, reflecting the equitable maxim that “equality is equity”.

Abolition of statutory hotchpot

39. The statutory hotchpot rules were repealed in England and Wales for deaths on or after 1 January 1996 by s 1, Sch 1 of the Law Reform (Succession) Act 1995 (UK) c 41, which removed ss 47(1)(iii), 49(1)(aa), 49(1)(a), 49(2) and 49(3) of the Administration of Estates Act 1925, 15 & 16 Geo 5, c 23.

40. In New South Wales, the rule was abolished earlier by the 1977 amendments to the pre-1978 Wills, Probate and Administration Act 1898 (NSW), which omitted the former hotchpot provisions in s 49(2)(a)(ii).

41. The position is now made explicit by s 140 of the Succession Act, which indicates that the doctrine of hotchpot in New South Wales does not apply in cases of intestacy. That section is set out below:

140 Effect of testamentary and other gifts

The distribution of an intestate estate is not affected by gifts made by the intestate to persons entitled—

(a) during the intestate’s lifetime, or

(b) in the case of a partial intestacy—by will.

42. Accordingly, since 1 January 1978, the hotchpot principle has had no application to intestate estates in New South Wales. Unlike in many other jurisdictions, benefits received under a will are not brought into account in cases of partial intestacy.

Hotchpot clauses in equity and in wills

43. In Federal Commissioner of Taxation v Lane (2020) 283 FCR 448; [2020] FCAFC 184, the Full Court of the Federal Court of Australia (Allsop CJ, with whom Perram and Farell JJ agreed) summarised the equitable hotchpot doctrine at [87]-[89] as follows:

[87] Hotchpot is an expression of equity’s concern for equality. “Equality is equity” as a maxim of equity lay at the foundation of doctrine concerning rights of all who are connected by any common bond of interest or of obligation. This reflected the notions of equality and impartiality lying at the foundation of the jurisprudence of Chancery, in contradistinction to the common law’s protection of the rights of the person as a distinct and separate individual: Pomeroy J N, A Treatise on Equity Jurisprudence (5th ed, S W Symons (ed), The Law Book Exchange Ltd, 1941) Vol 2 p 144 at §405. The maxim is the source of a number of doctrines: pro rata distribution, contribution, ownership in common in preference to joint tenancy and survivorship, settlement of insolvent estates, and marshalling: Pomeroy (1941) pp 145–159 at §406—§412.

[88] The principle of hotchpot reflected in the Statute of Distribution 1670 (22 & 23 Car 1 c 10) requiring settlements and advances to children in the lifetime of the intestate to be taken into account in their share of intestacy was, as Lord Chief Justice Raymond said in Edwards v Freeman (1727) 2 P Wms 435 ; 24 ER 803 at 806, cited by Barrett J in Idylic at 76 ACSR 138 [54], grounded on the ‘most just rule of equity, equality.’ (Emphasis in the original report.)

[89] The examples of the expression of the maxim take their form according to the nature of the common bond of interest or obligation concerned and what is necessary to vindicate equality and avoid unconscionability in respect of the common bond: Pomeroy (1941) p 144 at §405; Idylic at 76 ACSR 139 [60]; and Letten (No 20) at 92 ACSR 651 [73].

44. Specifically in relation to wills, in Re Courtenay House Capital Trading Group Pty Ltd (In Liq) [2020] NSWSC 780, at [79], Rees J set out the equitable doctrine of hotchpot specifically in relation to wills. Her Honour stated:

The equitable doctrine of hotchpot originally applied to the wills of fathers and their children as beneficiaries: Holt v Frederick (1726) 2 P Wms 357; Re Blume at 111 per Mansfield CJ. It was based on the equitable doctrine that it is the universal desire of every father of a family to abstain from all favouritism between his children and to give all equal portions. Where a father, during his lifetime, made gifts to his children and, by his will, left his residuary estate to his children in equal shares, those gifts were, in the absence of directions to the contrary in the will, taken into account as part or full satisfaction of the shares given by the will to maintain the same equality with the other children, to endeavour as far as possible to make all the children’s share equal as “equality is equity”: Edwards v Freeman (1727) 2 P Wms 435 at 443; see also Re Tennant (1942) 65 CLR 473; [1942] HCA 3; at 482 per Rich J and at 487 per Dixon J; Johnson v Smith [2010] NSWCA 306 at [32]; Prichard v Prichard [2015] WASC 170. The law of hotchpot was extended to intestate estates by the Statute of Distributions 1670 22, 23 Charles II, section 5. Wills may also contain a hotchpot clause directing that advances made by the testator are to be brought into hotchpot. In this event, such advances are notionally added back into the fund and the fund as notionally increased then divided with the recipient giving credit for what they have already received. Thus, the recipient must put back into the pot what they have already received and the pot is then shared out: John G Ross Martyn et al, Theobald on Wills (18th ed, 2016, Sweet & Maxwell) at 34-035. (emphasis added)

45. Thus, notwithstanding the hotchpot doctrine does not apply in intestacy, testators may still incorporate hotchpot clauses in their wills.

46. In Re Tennant (1942) 65 CLR 473; [1942] HCA 3 (Re Tennant), Rich J stated at 482 that (footnote omitted):

The intention of a testator in inserting a hotchpot clause in his will is to provide that there shall be a fair division among his children, and that they shall be equal inter se. Similarly the intention of the Statute of Distributions is ‘grounded upon the most just rule of equity, equality’ (Edwards v. Freeman).

Admissibility of extrinsic evidence

47. Consideration of the admissibility of extrinsic evidence is an issue that often arises in will construction cases, where evidence may be admissible at general law and under statute. Recently, this issue was considered by Meek J in Reeves v Reeves [2024] NSWSC 134 (Reeves) at [377]-[383]. His Honour said as follows:

[377] The Court adopts the ‘armchair principle’, putting itself in the position of the testator in considering all material facts and circumstances known to the testator with reference to how he is taken to have used the words in the Will: Warton v Yeo [2015] NSWCA 115 at [35] per Ward JA (as the President then was), citing Allgood v Blake (1873) LR 8 Exch 160 at 162 per Blackburn J.

[378] Evidence of surrounding circumstances (facts and circumstances known to the testator at the time the Will was created) is directed to context: King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 at 78 per Dixon CJ, Williams, Webb, Fullagar and Taylor JJ; [1955] HCA 70; James v Douglas [2016] NSWCA 178 (James v Douglas) at [19] per Meagher JA (Leeming and Simpson JJA at [77]-[78] agreeing). Thus, it is permissible to ascertain intention by reference to wording expressed within the Will, construed in context, as distinct from enquiring into the testator’s acts, feelings and intentions expressed outside the Will: GE Dal Pont, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) (Dal Pont, Interpretation of Testamentary Documents) at 42 [2.21].

[379] Under the general law, direct extrinsic evidence of the testator’s actual intentions is limited to equivocations: Dal Pont, Interpretation of Testamentary Documents at 40 [2.17].

[380] An equivocation arises where the testamentary language may be applied equally to each of two or more persons or things, and the Will as a whole and the available surrounding circumstances do not permit the Court to determine which of the alternatives was intended by the testator: Carrington v Wallace at [66] per Robb J.

[381] Section 32 of the Succession Act expressly applies to proceedings to construe a Will and modifies the general law regarding what evidence is admissible: James v Douglas at [19]. It was part of the original form of the Succession Act assented to on 27 October 2006 and which commenced on 1 March 2008. It applies to Wills made on or after that date.

[382] Section 32 is in the following terms:

(1) In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will—

(a) meaningless, or

(b) ambiguous on the face of the will, or

(c) ambiguous in the light of the surrounding circumstances.

(2) Despite subsection (1), evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c).

(3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.

[383] In ‘Will Construction’ (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023, I stated as follows (omitting footnotes):

104. Despite being operative for 15 years, s 32 has not received a significant amount of judicial attention. The Court of Appeal in James v Douglas referred to its effect in modifying the general law, but without discussing in detail its modifying effect.

105. Perhaps the most recent and helpful discussion regarding the operation of s 32 has been by Robb J in 2019 in Carrington v Wallace and in 2022 in Middleton v Schofield.

106. The term ‘ambiguous’ in the sense used in s 32 means that the term has two possible meanings, when the testator could only have intended to adopt one of those meanings.

107. Robb J observed in Carrington v Wallace that it is necessary to distinguish between ambiguity and mere difficulty of construction stating:

79. The terms of a particular will may give rise to intense difficulty in construction because different aspects of the wording tend to direct the mind to different possible meanings. Different lawyers, including judges, may form inconsistent opinions about the true meaning of the words in a particular will. That does not necessarily mean that the will contains an ambiguity…

…

81. The point is that a will is not ambiguous by reason only that it is difficult to determine its true construction. It is important that the distinction be carefully maintained because, otherwise, extrinsic evidence, including evidence of the actual subjective intention of the testator, will be too readily admissible to determine the testator’s testamentary intention, in a manner that is inconsistent with the fundamental requirement that the will be in writing, and the cardinal principle of construction that the testator’s intention is to be derived from the meaning of the words used in the will.

108. His Honour noted in Middleton v Schofield that consistency of operation of ss 6, 27 and 32 Succession Act may require the Court to take some care ‘o distinguish cases where the extrinsic evidence of the testator’s actual intention permits meaning to be given and ambiguity to be resolved, compared to cases where “in reality, the Court is asked to give a Will a meaning that depends upon a more probable than not conclusion about the contested effect of extrinsic evidence on so elusive a subject as the real subjective intention of a deceased person”.

109. It has been suggested by Dal Pont that the effect of s 32 is that evidence of surrounding circumstances is not admissible to create an ambiguity. The provision does not oust the ‘armchair principle’ but supplements it.

48. On the issue of a scheme (see above) in Reeves, Meek J also stated at [384]-[386]:

[384] Ms Fendekian submitted that the Court should consider whether any basic scheme can be discerned as to the outcome intended by the testator as to the distribution of his estate, citing inter alia Powell J (as his Honour then was) in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep) at 14, in a passage approved by Bryson J (as his Honour then was) in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 33: DCS [63(2)].

[385] Clearly the Court will, where it can, strive to interpret the wording of the Will to give effect to such a scheme where it is revealed: see also Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19] per Campbell JA (Macfarlan and Young JJA agreeing).

[386] Where the language is lengthy or obscure, or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, the scheme of dispositions is very important. However, if the terms of the Will are perfectly clear, such search for a ‘scheme’ may be of little use: Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.

49. Both parties submitted that there was no ambiguity in clause [5] and, to that end, the operation of s 32 of the Succession Act was not enlivened, and the Court was not required to turn to extrinsic evidence to construe the Will.

50. I accept those submissions and have not had regard to evidence of the deceased’s actual intention.

Surrounding circumstances

51. Upon application of the “armchair principle”, at the time the deceased made the Will, I find that the deceased can objectively be taken to have known the following:

1. Mr Tanner, her husband, was deceased;

2. the deceased had three adult children;

3. the deceased and Mr Tanner had been the registered proprietors of the Blandford Property;

4. in 2001, the deceased and Mr Tanner transferred the Blandford Property to the plaintiff and his wife;

5. the signed proforma “Transfer” document recorded that the transferors acknowledged receipt of the consideration of $100,000; and

6. the terms of Mr Tanner’s Will, including clause [4] as relating to the plaintiff (given the deceased was the co-executor and sole beneficiary of Mr Tanner’s Will).

52. Included in the evidence before the Court was extrinsic evidence as to the steps taken by the executors following the death of the deceased and on obtaining a grant of probate. I note that care needs to be taken in the construction of a deceased’s will not to attribute meaning to it informed by events subsequent to its execution or, still less, steps taken or not taken in administration of the deceased’s estate by the executors: Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371 at [27] (Lindsay J).

53. With this in mind, I do not consider that the evidence concerning the administration of the deceased’s estate is relevant to any construction issue, nor do I consider the facts which emerge from this particular evidence to be relevant “factual circumstances” as contemplated by the “armchair” principle. No party made any submission to the contrary.

Scheme of the Will

54. Consistent with the legal principles set out above, the task of the Court will be squarely directed to the search for the deceased’s intention, and not a search for a scheme, either as a first step or at all. Having said that, it appears clear that identification of a scheme may be one of a number of analytical or constructive tools to discern the deceased’s intentions, and, to this end, whether the deceased had a basic scheme for dealing with her estate will be considered: Hamilton at [59].

Submissions

55. On the issue of the scheme of the Will, the defendants submitted that the scheme was clearly established and expressed in the words of the Will, being that there “must be equalisation of the inter vivos advances with the calculation of the residue” (TR P21 L11-26). I understood this submission to mean that there was to be a deduction from the plaintiff’s share of the residue by reference to the valuation of the Blandford Property that had been advanced.

56. For his part, on the issue of any scheme of the Will, the plaintiff cited authority that any scheme of the Will will take second place to the language of the Will itself (TR P10 L13-14). He further submitted that even though there might be a scheme, if the words say something different or contrary to the scheme, then the scheme is of little use (TR P10 L47-49).

Consideration

57. I accept the submissions of both parties that, in effect, the intention of the testator can be derived from the words used in the Will, taken as a whole, and thus the Court is not required to seek further assistance from the scheme of the Will in order to determine the deceased’s intention.

58. However, to the extent it is open to me to have regard to the scheme of the Will as one of a number of “analytical or constructive tools to discern the deceased’s intention” (Hamilton at [59]), I accept that the submissions of the defendants on this issue, being that the scheme of the Will is aimed at “equalisation”, where inter vivos advances are brought into the calculation of the residue, which I accept is the effect of the “plain reading” of clauses [3](c), [4], and [5] together. In this, each of the clauses has work to do and the clauses operate together in the framework of the Will by way of direction as to how the rest and residue of the deceased’s estate is to be distributed.

Construction of the Will

Submissions

59. The plaintiff’s submissions focus squarely on clause [3](c) and the terms “the whole of my estate” (which he says cannot include the Blandford Property), “in equal shares”, and “rest and residue”, which is said to have well-known, ordinary and natural meanings, and where the expressed intention is clear and unambiguous.

60. In response to the plaintiff’s focus on clause [3](c), the defendants submitted that the plaintiff’s construction of clause [5] will mean that it and, by implication, clause [4], will have no work to do and will be rendered redundant (DWS [27]).

61. For his part, the plaintiff submits that it is not a question of whether clause [5] has “no work to do” but rather, that the deceased has attempted to do something that she has no “power” to do, in that the property the subject of the “advancement” and referred to in clause [5] was a property she did not own or have any interest or entitlement to.

62. On this “power” issue, the plaintiff refers to the reference to “the whole of my estate” and submits that the whole of the estate cannot include any property to which the deceased was not entitled to nor had any interest in at the time of her death. In this, I understand the plaintiff to be referring to the terms of clause [5], which makes reference to the Blandford Property.

63. In relation to the “power” issue, the defendants submitted that the better construction of clause [5] is that it does not direct any interest in the Blandford Property to be dealt with in any way, but rather it “look[s] backwards” to acknowledge that a gift was made and so adjusts clause [3] (TR P16 L21-30).

64. The plaintiff further contends that if the deceased had indeed wished to take “into account” the land transferred to the plaintiff and his wife in 2001, then the “simplest way” to do this would have been to not leave him an “equal share”, or to have defined the term “rest and residue” to include the land that had been transferred.

65. To this the defendants responded that what had been suggested by the plaintiff was “just an option”, and elsewhere submitted there was no limit on what a testator can do in dealing with hotchpot clauses (or equalisation clauses, as Mr Katsoulas noted they are now often called).

66. The defendants accepted that the “residuary clause” (ie, clause [3](c)) did not use words like, “subject to later direction”. However, they contended that the intention was clear in any event. That is because clauses [4] and [5] specifically link the terms of those clauses to clause [3](c).

67. Specifically on the relevance of the case of Re Tennant to the current proceedings, and of the “hotchpot” issue, the defendants made the following submissions at DSWS [9]-[19]:

9. In Re Tennant, the High Court construed a will containing similar provisions to those the subject of the present proceedings. The case gives guidance and context to the clauses the subject of the present proceedings. It does not support the plaintiff’s position.

10. The residue clause provided:

And as to my residuary funds in trust for all my chilldren (sic) in equal shares. (at 475)

11. It is observed that, as in the present case, the residue clause itself is not expressed to be qualified by any subsequent directions. Similarly, it does not rely on any redefinition of “estate” as was the case in Re Pendergast. Those being deficiencies said to be identified by the plaintiff in clause 3(c) of the Will.

12. What followed in the will were subsequent directions with respect to advances made in the testator’s life. Those directions appear 476 to 477 and are reproduced as follows:

And I direct that the value of any land shares or property transferred by me in my lifetime to any child of mine including the sum of Twenty thousand pounds which I have settled on my daughter Jessie Clara as her marriage portion shall be taken as part of the share to which any such child is entitled under this my will and my Trustees shall accordingly deduct the value thereof from the share or portion to which such child is entitled under this my will

And I direct that the amount of the value of any land shares or property shall so far as my Trustees can arrive at such be the value thereof as at the date of my death but in the event of any such land shares or property being sold during my lifetime by any child to whom such land shares or property shall have been transferred then I direct that the net amount for which the same shall have been sold shall be deemed to be the value thereof within the meaning of the directions hereinbefore contained and such amount shall accordingly be deducted as aforesaid

(at 476 – 477)

13. Justice Dixon commenced his reasons at 487 explaining the effect of the subsequent directions:

The will of the testator contains directions that certain money and property which in his lifetime he gave to some of his children by way of advancement shall be taken as part satisfaction of their respective aliquot shares in residue, that is to say brought into hotchpot, and the question upon these two appeals is how the directions are to be applied in ascertaining the amounts or proportions of corpus taken by the testator’s children and the shares of income payable to them. When a disposition requires that a fund should be distributed equally among a class and then goes on to provide that those members of the class who have received advancements should bring them into hotchpot, the effect is to qualify the statement that the shares in the fund shall be equal and to direct a method of calculation which may be expected to result in some other proportions. The purpose of directing the hotchpot commonly is to ensure that children obtain from their parent by advancement and under his will equal portions or equality of benefit.

14. Clauses 5 (and 4) expressly seek to qualify the share in the residue in clause 3(c) by use of the words “shall be brought into account and taken in satisfaction to that extent of the gift in his [John and James respectively] favour in Clause [3](c).” The effect, to use the language of Dixon J, is to “qualify the statement that the shares in the fund shall be equal and to direct a method of calculation which may be expected to result in some other proportions.”

15. Whilst the language of the so-called hotchpot clause in Re Tennant was not identical to that in the Will (‘shall be taken as part of the share to which any such child is entitled under this my will’ vs ‘be treated as an advancement…and shall be brought into account and taken in satisfaction to that extent…’) at 491-492, his honour identified expressions to the same effect:

In particular, trusts of corpus for a class are expressed as if there were a fund of money in hand for division whether by payment or by appropriation. Directions that advances shall be brought into hotchpot take varying forms. The hotchpot provision may say that the advances are to be ‘deducted’ from the advanced child’s share, to be ‘taken in satisfaction’ or ‘in part satisfaction’ or ‘in or towards satisfaction of the share’ or to be ‘taken’ or ‘brought into account.’ Sometimes the words ‘by way of hotchpot’ are added or there is some other express reference to ‘hotchpot.’ With all such expressions it is natural to understand the direction as referring to a ‘deduction’ from, ‘satisfaction’ of, or ‘accounting’ against a money fund… (emphasis added by defendants)

68. The plaintiff in PSWS does not appear to challenge the relevance of the legal principles set out in Re Tennant. Rather, he focussed his reply on factual assumptions that had been made by the defendants in this matter. To this end, the plaintiff submitted (at PSWS [9]-[12]):

“9. Paragraphs 1 – 4 of the Defendant’s Supplementary Written Submissions and paragraph 5 of the Deceased’s will assume that the transfer of land to the Plaintiff and his wife in 2001 was an “advancement” or “settlement” or “gift” of the same or similar type discussed In re Tennant.[supra].

10. Here, the uncontested evidence is that the land was transferred to the Plaintiff and his wife in 2001 for a stated consideration of $100,00.00 the receipt of which was acknowledged by the Deceased and her late husband. See paragraph 5 and annexure “B” of the affidavit of the Plaintiff sworn 2 April 2025.

11. Further, the “Directions” in the second and third sentences of clause 5 take no account of the $100,000.00 the receipt of which was acknowledged in 2001.

12. It is thus submitted that that transfer of land cannot be subject to the “hotchpot” doctrine as alleged by the Defendants. Nor can the “Directions” in the 2^nd and 3^rd sentences of clause 5 of the will be made. The Deceased simply had no power to make such directions in respect of someone else’s property.”

(emphasis in original)

Consideration

69. I accept that if clause [3](c) was to be considered in isolation from the rest of the Will, it might well be that the “plain meaning” of that clause would support the construction of the Will contended for by the plaintiff. However, when determining the construction of a will, in addition to considering the text of the clauses centrally in issue by themselves, a court must have regard to the second “principle” set out in Fell v Fell, being that:

“(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’ …”

(emphasis added, references omitted)

70. Having regard to this principle, when I have come to ascertain the meaning of the words and phrases used in the Will, taken as a whole in order to give effect to the intention of its framer, I am of the view that the words contained in clause [3](c) are qualified by the terms of clauses [4] and [5]. Such a construction of the Will is in keeping with the construction contended for by the defendants, which includes reference to the “hotchpot doctrine” (see DSWS) and finds support from reasoning of Dixon J in Re Tennant at 487:

“When a disposition requires that a fund should be distributed equally among a class and then goes on to provide that those members of the class who have received advancements should bring them into hotchpot, the effect is to qualify the statement that the shares in the fund shall be equal and to direct a method of calculation which may be expected to result in some other proportions. The purpose of directing the hotchpot commonly is to ensure that children obtain from their parent by advancement and under his will equal portions or equality of benefit.” (emphasis added).

71. Further, I do not accept the submission of the plaintiff that the deceased has no power to give the direction she did in clause [5]. In this, I accept the submission of the defendants that the deceased is not seeking to confer an interest in property that she does not own, but rather, to direct that property previously advanced be “brought into account”.

72. I am of the view there is no ambiguity in the words used in clause [5] and find that its terms are closely tethered both to clause [4] and clause [3](c). As to clause [3](c), that clause is expressly referenced in clause [5] and there is a clear direction in clause [5] that a certain fact (namely, the transfer of the Blandford Property to the plaintiff) should be taken to affect the operation of clause [3](c). As to clause [4], clause [5] opens with the words “I also direct” (emphasis added). The words “also direct” draw to the reader’s attention that another direction has been made – that being the one in clause [4]. Thus, there is an explicit linking between clause [4] and clause [5] – there are two directions by the testator which seem to operate together.

73. As to any dispute about the potential ambiguity of clause [5], the plaintiff appears to have conceded that there is no such ambiguity in his submissions.

74. I reject the plaintiff’s submission that clause [5] has no operation as the deceased had no power to make the direction as she did not own the property. I do not accept that, for the deceased to have made an “equalisation” or “hotchpot” clause, she was required to own the property the subject of the direction. To the contrary, I accept the submission of the defendants that if clauses [4] and [5] are not understood as legitimate equalisation clauses, those clauses would otherwise serve no purpose and would result in an inconsistency that is otherwise not apparent in the instrument (DSWS at [5]-[6]).

75. Having regard to the evidence before the Court and sitting in the deceased’s armchair, the deceased may be taken to have known about the Transfer in 2001 and that she was no longer the legal owner, noting also that no issue as to the deceased’s mental capacity to make the Will has been raised. Further, the Court may accept that the deceased was already familiar with equalisation clauses, noting the existence of a similar clause that existed in Mr Tanner’s Will.

76. As the submissions of the defendants have highlighted, and the case of Re Tennant illustrated, equalisation clauses are not uncommon and may arise in circumstances where there have been inter vivos transfers (or gifts) in the course of a testator’s lifetime. I note there has been no claim made by the plaintiff in these proceedings asserting an estoppel or any other associated claim.

77. In conclusion, having regard to the whole of the Will and surrounding circumstances, I accept that the construction of the Will as contended for by the defendants is the correct one. That is, that upon the true construction of the Will, the plaintiff is entitled to an equal (1/3^rd) 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 the Will.

78. I note this conclusion is arrived at without having regard to the scheme of the Will. Neither party contended that the Court was required to consider the scheme of the Will as part of its construction task. However, to the extent the Court may have regard to the scheme of the Will as one of a number of analytical or constructive tools to discern the deceased’s intention, I am of the view that any analysis of the scheme of the Will would, in any event, support the construction of the Will as contended by the defendants.

79. In this, I am of the view that the scheme of the Will discloses an intention of the deceased to provide for her children equally, however that what was “equal” was only to be arrived at once regard is had to the whole of the structure of the Will, with clause [3](c) providing for a starting point, and clauses [4] and [5] providing for the extent to which the provision in clause [3](c) is qualified.

Supplementary submissions

80. I note that in PSWS at [9]-[11], the plaintiff raises the issue of assumptions that had been made as to whether there had been an “advancement” or “settlement” or “gift”, and also refers to the “uncontested evidence” that the receipt of the $100,000 had been acknowledged, and that the “Directions” in clause [5] did not take account of the $100,000 “the receipt of which was acknowledged in 2001”.

81. To repeat what I stated in [19] for abundant clarity, there was no evidence before the Court that any consideration was in fact paid for the Transfer. The plaintiff’s evidence as to what, if any, consideration was paid went no further than his statement that “[t]he consideration recorded on the Transfer was $100,000”. I do not read into this statement a suggestion that any consideration was actually paid.

80. In contrast to the plaintiff’s case prior to his written submissions in reply being provided, which, as I have said, did not go far in proving one way or the other whether the plaintiff paid consideration, PSWS [9]-[11] appears to invite an inference that consideration was actually paid. This is particularly so at PSWS [10], where the plaintiff states that “the uncontested evidence is that the land was transferred to the Plaintiff and his wife in 2001 for a stated consideration of $100,000.00 the receipt of which was acknowledged by the Deceased and her late husband” (emphasis in original).

81. I do not propose to deal with these submissions to the extent that I might otherwise have been required to deal with all of the plaintiff’s submissions.

82. These contentions were raised for the first time by the plaintiff in written submissions in reply, which were provided two days following the hearing of the matter. The defendants have had no opportunity to respond to these contentions. At no point before the plaintiff’s written submissions in reply, either in written submissions or in the course of the hearing itself, did the plaintiff seek to suggest the consideration recorded on the Transfer was actually paid. From the perspective of procedural fairness alone it would not be appropriate for the Court to engage with this part of the plaintiff’s submissions, in circumstances where the plaintiff has had ample opportunity to otherwise fairly and explicitly raise this issue.

83. I add, however, that to the extent that the plaintiff refers to “uncontested evidence” that “the land was transferred to the Plaintiff and his wife for a stated consideration of $100,000 the receipt of which was acknowledged by the Deceased and her late husband” (emphasis in original), I do not accept the accuracy of the reference to “uncontested evidence” nor do I make the inherent inference apparently sought that the consideration was actually paid.

84. As set out above at [18]-[19], there is no evidence before the Court that any consideration was actually paid. Further, the plaintiff appeared to have used the term “gift” in association with reference to the Transfer in the course of his oral submissions.

85. The “Factual background” section of this judgment sets out the extent to which any evidence before the Court is “uncontested”.

86. Further, and in any event, I accept the submissions of the defendant that whether the deceased was right or wrong when she referred to the Transfer as a “gift” is immaterial.

Costs

89. The usual rule as to costs is that they follow the event, unless the Court is satisfied that some other order is appropriate: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

90. I have determined that the construction of the Will as contended by the plaintiff fails, and that he therefore is not entitled to the relief sought in the Summons. As such, I am satisfied that the plaintiff should pay the costs of the defendants and that there is no reason to depart from the usual rule as to costs.

ORDERS

91. For the reasons set out above, the Court makes the following orders:

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 (1/3^rd) 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.

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Decision last updated: 19 September 2025