Estate of the late John Currie Docherty Hamilton

[2025] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932

Hearing dates:

11 August 2025

Date of orders:

11 August 2025

Decision date:

11 August 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Declaration that in the events that have occurred and upon the true construction of clause 3 of the Will dated 31 May 2019 of the late John Currie Docherty Hamilton, the plaintiff is entitled on the distribution of the estate assets to the deceased’s real estate situated in Terrigal.

Orders for costs of the determination.

Catchwords:

SUCCESSION — Will construction — “Home-made” Wills — Contention regarding whether two sentences deal with the same real property — Clauses of Wills should be read in their context — Submission that the sentences are disconnected rejected — Consequently, submission that property adeemed rejected

SUCCESSION — Will construction — 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

SUCCESSION — Rectification — Submissions regarding rectification rejected — Meaning can be effectively derived through an approach of construction

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Succession Act 2006 (NSW)

Trustee Act 1925 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Coorey v George (27 February 1986, unrep: BC8601222)

De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351

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

Keulemans v Attorney-General, New South Wales [2013] NSWSC 1772; (2013) 12 ASTLR 202

King v Perpetual Trustee Co Ltd (1955) 94 CLR 70; [1955] HCA 70

Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Muir v Winn [2009] NSWSC 857

Murdocca v Murdocca (No 2) [2002] NSWSC 505

NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397; (2013) 11 ASTLR 479

NSW Trustee and Guardian v Matthews [2024] NSWSC 595

Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18

Plunkett v Field [2025] NSWSC 797

Reeves v Reeves [2024] NSWSC 134

Reynolds v Bonnici [2017] NSWSC 828

RL v NSW Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39

Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48

Texts Cited:

Cahn, Edmond N, “Testamentary Construction: The Psychological Approach” (1937) 26 Geo LJ 17

Haines QC, David, Construction of Wills in Australia (1st ed, 2007, LexisNexis Butterworths)

Macquarie Dictionary, online ed

Visit Stockland, “Greenock” (Web Page) (see endnotes for accessible link)

Category:

Principal judgment

Parties:

Terrie Hamilton / First Plaintiff
Bianca Hamilton Cooper / Seventh Defendant
Grant Hutchinson / First Defendant

Representation:

Counsel:
A Lakeman / First Plaintiff
RD Turnbull / Seventh Defendant
DC Price / First Defendant
Solicitors:
Taperell Rutledge Lawyers / First Plaintiff
Roden Solicitors / Seventh Defendant
Toomey Pegg Lawyers / First Defendant

File Number(s):

2023/00429281; 2023/00440099 and 2023/00182244

ex tempore JUDGMENT (REVISED)

Introduction

1. HIS HONOUR: Greenock is a historic industrial town by the Firth of Clyde, 25 miles west of Glasgow. It grew from a fishing community to become the site of the first dock on the Clyde in 1711. ^[1] It is the birth place of the late John Currie Docherty Hamilton (deceased) born in September 1946.

   1. Visit Scotland, “Greenock” (Web Page) available here: (accessed 12 August 2025).

2. Reputedly, the town is home to the world’s first “Burns Club”, a club devoted to celebrating the life and works of the famous Scottish poet and lyricist, Robert Burns, with many of the founding members having known Burns himself. Burn’s love, Mary Campbell (Highland Mary), who died in the town, is said to be buried in the Greenock cemetery. ^[2]

   2. Ibid.

3. Whilst the deceased could apparently speed read, his composing skills, at least when it came to making his last Will, lacked the sublime expressive craft of Burns.

4. The Court today is determining, as a separate question, the true construction and possible rectification of the deceased’s last Will, which has been sought as a prayer for relief in one of three proceedings. Two of the proceedings relate to the deceased’s estate and one relates to the estate of his late brother, Robert. Other claims, including family provision claims, remain to be determined, though the parties have anticipated that their outcomes will be impacted by the initial decision regarding the proper construction of the deceased’s Will.

5. Ultimately, I have determined that properly contextualised and construed, the deceased’s rudimentary testamentary words reveal a clear dispositive intent and I reject a counter case of ademption with the consequence of intestacy regarding the deceased’s last residence, a property at Terrigal (Terrigal property).

6. The deceased and his family emigrated to Australia in or about 1951 to 1952 when the deceased was aged 5. ^[3]

   3. Court Book (CB) 24.

7. None of his upbringing or why he and his birth family ventured a life in Australia is readily disclosed by the evidence, which for Will construction purposes is unsurprising. The deceased was an ambulance officer by profession. ^[4] Though living to the relatively young age of 71 (well under four score years), the deceased’s life was filled with familial and personal tragedy.

   4. CB 24.

8. Each of the deceased’s wife and three of his four children predeceased him and he, himself, in later years suffered from prostate cancer and the devastating effects of motor neurone disease to which he succumbed, compounded with the effects of a COVID-19 lung infection. ^[5]

   5. CB 24.

Deceased’s family

9. The deceased was one of three children of the late Arthur Hamilton and Mary Welsh Hamilton.

10. The deceased had two brothers, Robert and Richard, who both predeceased him. Robert appears to have had close involvement in both the deceased’s life and that of the deceased’s surviving daughter and the plaintiff, Terrie.

11. The deceased married Pamela-Lee Henry in or about 1966. The deceased had four children, Terrie (born in September 1970, now aged 54), Aaron, Glenn and Leanne.

12. Glenn, it is said, died in infancy.

13. Aaron (Terrie’s younger brother) died aged 26 in a car accident in July 2000. ^[6] There is some dispute as to whether Aaron had any children or not. The Court was informed that Aaron spent time in the UK and in Australia and, whilst he was in Australia, he had a relationship with a Joanne Muirhead. Kieren Muirhead (the sixth defendant) is Joanne’s child. Kieren contends he is Aaron’s son. There has been some DNA testing which is inconclusive or perhaps, on another view, indicative that it is less likely that he is Aaron’s son. However, there is no occasion or need for me to determine that question.

    6. CB 12[32].

14. Leanne (an elder sister to Terrie) had a relationship with Kevin Reid. There are four children of that relationship, namely Chantelle, Marc, Callum and Angus. Leanne died on 21 July 2017.

15. Terrie has two children, being Bowie born in August 1996 from her relationship with Leslie Bicklie ^[7] (which appears to have lasted for barely a year in or about 1995 to 1996) and Bianca, who was born in May 2000 from her relationship with Aaron Cooper. ^[8]

    7. CB 12[27]-[30].

    8. CB 12[34].

Residence in Australia

16. The early background of the deceased’s movements in Australia is not entirely clear. Nonetheless, prior to 1975 he appears to have lived with family in Queensland. In about 1975, they moved to live in a property at Balgowlah and continued to live there until about 1991. In 1991, they moved to premises at James Street in North Manly and lived there until about 1994. The next movement appears to be to another location in Manly and then, ultimately, in about 1999, the deceased purchased a residence in Allambie Heights (Allambie Heights property).

17. By that stage, the deceased’s wife had predeceased him and his residence in the Allambie Heights property was with Terrie, Bianca and Bowie.

18. Some of the financial context regarding the deceased’s and Terrie’s residence at the Allambie Heights property is revealed in Terrie’s evidence. She states:

In or about 2000, after we moved to Allambie Heights, Dad retired from his job which meant that I took on greater responsibility financially to ensure that we had enough money to pay any bills and expenses. ^[9]

He paid half of the bills and tended to pay some of the maintenance costs of the house as I could not afford to pay 100% of the costs myself. ^[10]

Dad would give me the bills and I would give him the cash to pay the bills. I would also frequently attend the post office to pay off his credit card bill and any other liabilities for him. ^[11]

9. CB 17[83].

10. CB 18[84].

11. CB 18[85].

Background to Will

19. In various parts of her affidavits, Terrie provides some background to the events from the time of the purchase of the Allambie Heights property to the making of the Will by the deceased in 2019. I set out some of that detail from 2015, rearranged to be in chronological order:

In 2015 my father was diagnosed with prostate cancer. I would take him regularly to his cancer treatments at (sic).I would wait with him and assist him in whatever way he needed. This care continued for around 6 months with a small break in between treatments. ^[12]

By about 2018, Dad said to me, “We will have to sell the home in about two years. There is a period of grace under the mortgage before we have to sell.” ^[13]

When paying the bills Dad did not like to discuss the actual amounts with me. ^[14]

He gave me the bills sometimes with the actual amounts blacked out and gave me some of the cash that I had given him to pay the bills. ^[15]

I could see from his appearance that he was distressed, and he would keep repeating the amounts that were due. ^[16]

In or about early May 2019, at around midday I was sitting in the loungeroom next to the dining room table watching TV and my father came into the room and said words to the effect of ‘I have got to talk to you about something. ^[17]

He went over and turned the TV off which was unusual for him to do and I initially thought I may have been in trouble. ^[18]

He then walked around to the table, pulled out a chair and sat it down directly in front of my lounge chair and looked me in the eyes. He then said words to the effect of ‘I want to buy you a house because, I do not think I will live past 80.’ I knew what he was saying and it made me feel sad so I believe I said, ‘I don’t want to have this conversation. ^[19]

On or about 31 May 2019, whilst we were watching television dad said to me, “I made a will out today and I have left the house to you.” I remember being in shock and perhaps telling him I didn’t want to have the conversation because it was upsetting. ^[20]

12. CB 13[41].

13. CB 60[12].

14. CB 60[13].

15. CB 60[14].

16. CB 60[15].

17. CB 19[91].

18. CB 19[92].

19. CB 19[93].

20. CB 19[94].

20. Subsequent to the deceased making his Will, the Allambie Heights property was sold and the Terrigal property purchased. Terrie states:

In 2020, we sold the [Allambie Heights property] due to financial pressures. Dad was a pensioner and my income was only covering the interest of the mortgage and there was financial hardship grace period of 2 years but then it had to be released. Dad was diagnosed with Motor Neurone Disease during this time. After some time Dad with Uncle Bob and myself inspected [the Terrigal property] and it was purchased. ^[21]

Dad did not discuss the sale of the property with me in any detail. He told me he chose the real estate agent to sell the property because they were the cheapest and they had a lot of good connections. ^[22]

Dad organised all the details concerning the sale. I was aware of people coming to the house to look at the property. Quite often I was in bed because I had worked casual shifts during the evening. ^[23]

The sale of [the Allambie Heights property] and the purchase of [the Terrigal property] took place very quickly. We were able to move from one home to the other without any temporary accommodation in between. ^[24]

Although I was paying the household bills Dad was reluctant to discuss the amounts of the debts or the amounts of the payments with me in any detail. ^[25]

21. CB 13-14[42].

22. CB 60[16].

23. CB 60[17].

24. CB 60[18].

25. CB 60[19].

21. On 25 September 2020, the deceased sold the Allambie Heights property for $1.6m. There was a mortgage to Heartland Senior Finance (HSF) for $482,158.75. ^[26]

    26. CB 19[97].

22. Terrie also gave evidence that:

Because of the ongoing care required for my father throughout his latter (sic) life I have frequently had to take a significant amount of time of my work. Especially during the period where my father had cancer as the days after his treatment were difficult. ^[27]

During these periods, I would also be the sole income earner for both my father and I to ensure that we could still maintain the Terrigal property as well as food for both of us. ^[28]

I solely relied on my Dad for accommodation as he needed me nearby but I had no means to purchase a property and my earning capacity to rent a property in the area was out of reach for me. ^[29]

27. CB 14[49].

28. CB 14[50].

29. CB 19[98].

Deceased’s Will

23. It is clear enough that the deceased prepared his Will using what is described as a “plain English Will kit”. A form of the type of Will kit was adduced.

24. Notwithstanding that Will kits are designed with the laudable intention of permitting a testator to inexpensively prepare a document to effectively dispose of his or her estate, there are risks which are often materialised that the testator does not do so effectively by the use of such kits.

25. The Will kit brochure in evidence bears the bold claim “The Gold Standard in Will Kits”. The Will kit, several lines under the heading “write” provides “After you have left a particular gift, you should include a gift for what is left over, for example: I give the rest of my estate to my son Thomas Rottler of 44 Kewmeadows Street, Carlmond, Queensland.” However, the notion of residue of the estate is not expressly referred to. It is certainly not highlighted within the document, nor does the actual pro forma Will form, under the heading “Give”, contain any prompt or reminder to the testator of the importance of disposing of all of the deceased’s estate.

26. The Will in question contains some infelicities in both spelling and wording. The form of the Will is annexed to the end of this judgment as Annexure A.

27. The deceased’s estate as at the time of his death comprised the following assets:

1. Terrigal property $1,050,000

2. G&C Mitchell Bank account $567.88

3. CBA (GoalSaver account) $980.85

4. CBA (Pensioner Security account) $5802.87

5. 2000 Mercedes-Benz vehicle $5,000

6. Interest in residuary estate of Robert $1,385,088.06

7. Personal effects (furniture, watches, jewellery various chattels) $5,000

Total $2,452,439.66

28. On 2 February 2024, probate of the deceased’s estate was granted to Mr Hutchinson. ^[30] This appears to have been upon the premise that he claimed to be the person answering the description of being the substituted executor appointed by default as the “senior lawyer of The Probate Professionals or its successor”. ^[31]

    30. CB 86.

    31. CB 86; Mr Lakeman’s submissions dated 29 July 2025 (PS2) [12]-[13] (CB 90).

29. On 9 April 2024, letters of administration in Robert’s estate were also granted to Mr Hutchinson.

Associated litigation

30. The events of the deceased’s and Robert’s death have given rise to at least three sets of proceedings affecting their estates.

31. On 2 June 2023, Bianca filed a summons seeking essentially family provision relief in respect of Robert’s estate. On 1 August 2023, her summons in that matter was amended to name Mr Hutchinson as the appropriate defendant.

32. On 27 November 2023, Terrie commenced proceedings by summons seeking construction and rectification of the deceased’s Will, as well as a family provision claim on the deceased’s estate.

33. On 5 December 2023, Bianca commenced separate proceedings seeking family provision relief in respect of the deceased’s estate.

34. On 7 December 2023, on a listing of the matters before me, I noted the associated proceedings and ordered, subject to further order, that the associated proceedings be dealt with contemporaneously with evidence in one being evidence in the other.

35. The associated proceedings for the next 18 months were the subject of preparation and case management.

36. On 4 June 2025, the matter was listed before Williams J for hearing. Her Honour declined to hear the matter for three reasons. First, no order had been sought or made for separate determination of the construction and rectification issues. Secondly, affected parties with an interest in intestacy had not been joined. Thirdly, Bianca had not been joined.

37. Her Honour delivered brief ex tempore reasons for judgment explaining this and made orders pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the joinder of 6 parties to the proceedings. Those are the four children of Leanne (Chantelle, Marc, Callum and Angus) as second to fifth defendants, Kieren as sixth defendant and Bianca as seventh defendant. The matter was stood over to a subsequent date in the Registrar’s list.

38. On 15 July 2025, Lauren Gidley, solicitor, filed a notice of submitting appearance on behalf of the second to sixth defendants.

39. On 17 July 2025, the associated matters were the subject of a referral to me as the Family Provision List judge. On that occasion, each of Messers Lakeman, Turnbull and Price of counsel appeared and, at their request, I made, considering it appropriate, an order for separate determination of the relief in [1]-[2] of the amended summons filed on 30 June 2025.

40. On 24 July 2025, Registrar Walton listed the matter before me for hearing today.

Separate determination relief

41. The relief sought that is the subject of the separate questions, in [1]-[2] of the amended summons is as follows:

1 A Declaration that in the events that have occurred and upon the true construction of clause 3 of the will dated 31 May 2019 of the late John Currie Docherty Hamilton deceased, the Plaintiff is entitled on the distribution of the estate assets to the deceased’s real estate situate at and known as [the Terrigal property].

2 An order that the second paragraph of clause 3 of the will dated 31 May 2019 of the late John Currie Docherty Hamilton deceased be rectified pursuant to section 27 of the Succession Act 2006, to read as, ‘I give my [Allambie Heights property] to my daughter Terrie Hamilton AND all money from the sale of the property after mortgage is paid AND to be ^[32] used to buy a property (house/apartment) THAT cannot be given to any partner of OR friend or used for any other purpose i.e. business.”

32. The words “to be” are struck through which is only viewable on the Caselaw website.

42. The persons who are affected by the relief are, as I have indicated above, now all joined to the proceedings.

Issues

43. The essential issue in question focuses upon wording in clause 3 of the Will and, in particular, five lines which form what I will describe as the final two sentences of clause 3, being the contested clause:

My property [redacted] Allambie Hts

To My Daughter Terrie Hamilton.

All Monies From The Sale After Mortgage Is Paid To Be Used

To Buy A Property (House/Apartment) Cannot Be Given To Any

Partner Of Friend Or Used For Any Other Purpose I.E Busines

44. The plaintiff contends that the contested clause is effective to give her the Terrigal property. Bianca, for her part, supports that position. The defendant disputes that and says that the gift fails and falls to be distributed under intestacy rules.

Hearing

45. On the hearing of the matter before me this morning, Mr Lakeman appeared for Terrie, Mr Price appeared for Mr Hutchinson (the first defendant), and Mr Turnbull appeared for Bianca.

46. Ms Gidley, who has been appointed as the solicitor by the second to sixth defendants, filed a submitting appearance and earlier indicated she did not intend to appear at the hearing. Ms Gidley’s position is entirely explicable as, on the face of it, the interests of those defendants is not effectively different from the position and submissions advanced by the first defendant.

47. On the hearing of the matter, a number of affidavits were read. These included affidavits of Terrie, sworn 27 November 2023 and 2 April 2025, an affidavit of Claudia Pitt, solicitor, sworn 6 December 2023, and an affidavit of Mr Hutchinson sworn on 14 March 2024, which is essentially the form of an administrator affidavit for the purposes of the Family Provision Practice Note.

48. The necessary documents for dealing with the separate determination were provided by the parties in a form of Court Book (CB). I will refer to material from the Court book as I have already done. There were various iterations of written submissions by counsel. It is convenient to refer to the respective submissions as follows: Mr Lakeman’s submissions dated 13 March 2025 (PS1) and 29 July 2025 (PS2); Mr Price’s consolidated submissions dated 3 April 2025 (D1S); and Mr Turnbull’s revised submissions dated 8 August 2025 (D7S). I will refer to transcript references (T) as need be.

49. There was objection in particular to statements by the deceased in [93]-[94] of Terrie’s affidavit sworn 27 November 2023 as being evidence of the deceased’s objective intention in the construction of the Will: ^[33]

93. He then walked around to the table, pulled out a chair and sat it down directly in front of my lounge chair and looked me in the eyes. He then said words to the effect of ‘I want to buy you a house because, I do not think I will live past 80.’ I knew what he was saying and it made me feel sad so I believe I said, ‘I don ‘t want to have this conversation’. ^[34]

94. On or about 31 May 2019, whilst we were watching television dad said to me, “I made a will out today and I have left the house to you.” I remember being in shock and perhaps telling him I didn’t want to have the conversation because it was upsetting. ^[35]

33. T 3.14-.17.

34. CB 19[93].

35. CB 19[94].

50. The statement “I want to buy you a house because, I do not think I will live past 80” in [93] is a statement of the deceased’s proposed intent of action for the future, coupled with seemingly a reason for it. It was not adduced as proof of anything rising beyond that. I admitted it as part of the surrounding circumstances of the deceased in the lead up to his making of the Will. ^[36] The statement in [94] “I made a will out today and I have left the house to you” is in essence an expression by the deceased of his interpretation of what he had done earlier in the day. I admitted it as part of the surrounding circumstances of the deceased making his Will and limited it as such. ^[37] It was not seriously pressed as being some form of substitute for the words used in the Will, nor some conclusive or decisive statement which determines the proper construction of the Will.

Construction principles

36. T 3.30-4.1.

37. T 4.3-.15.

Object

51. In law, construction is the process of ascertaining the meaning of a written document: Macquarie Dictionary, online ed.

52. There is only one true construction of any legal instrument, including a Will. ^[38]

    38. See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [154] per Edelman J; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78-79 per Isaacs J; [1925] HCA 18.

53. The object of construction of a Will is to give effect to what the Will-maker intended by the words he or she used, having regard to admissible extrinsic evidence. ^[39]

    39. See e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson and Leeming JJA agreeing at [1] and [2] respectively), citing Fell v Fell (1922) 31 CLR 268 at 273-274 per Isaacs J; [1922] HCA 55 (Fell), and Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton.

54. There are certain principles, legal (statutory and caselaw based), linguistic and grammatical, which are either mandated or advisory for a judge in construing a Will. It may be accepted that in any given case certain guides to construction will need to be applied. For example, it is clear that the whole Will must be read before finally arriving at an opinion as to the meaning of any controverted portion. ^[40] Frequently, the many guides may present as perplexing. In 1937, Edmond Cahen observed that generalities and maxims found in the textbooks are all linked with exceptions, qualifications and neutralising propositions. ^[41]

    40. Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 per Isaacs and Powers JJ at 560-561; [1915] HCA 48; Fell at 273-274 per Isaacs J.

    41. Edmond N Cahn, “Testamentary Construction: The Psychological Approach” (1937) 26 Geo LJ 17 at 18.

55. This case is not the occasion to essay the task of outlining all mandated principles and explaining and ordering advisory guides.

56. It suffices to comment on one aspect of Will construction guides, namely, reference to search for a scheme.

Scheme

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. ^[42] 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 ^[43] 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. ^[44] 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 ^[45] or complex. It might be logical and obviously ordered or it might be less so and apparently arbitrary.

    42. See Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 (Fairbairn) at [19] per Campbell JA (Macfarlan JA at [129] and Young JA at [130] agreeing) citing Powell J in Coorey v George (27 February 1986, unrep: BC8601222) (Coorey) at 14, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 (Wright) at 32C-33B.

    43. Macquarie Dictionary, online ed.

    44. Macquarie Dictionary, online ed.

    45. King v Perpetual Trustee Co Ltd (1955) 94 CLR 70 at 77 (lines 1-2) per Dixon CJ, Williams, Webb, Fullagar and Taylor JJ; [1955] HCA 70.

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,^[46] 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.

    46. [2013] NSWSC 1397; (2013) 11 ASTLR 479 at [13]-[18], especially [17].

60. The principal use of seeking to discern a scheme ^[47] 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. ^[48]

    47. See Fairbairn at [19] per Campbell JA (Macfarlan JA at [129] and Young JA at [130] agreeing) citing Powell J in Coorey at 14, in a passage approved by Bryson J in Wright at 32C-33B.

    48. For example, David Haines QC, Construction of Wills in Australia (1st ed, 2007, LexisNexis Butterworths) at [2.30] page 94.

61. Further, without intending to be prescriptive or exhaustive, when judges refer to the usefulness of a scheme of disposition, ^[49] 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.

    49. See Muir v Winn at [24].

Home-made Wills

62. In Plunkett v Field [2025] NSWSC 797 (Plunkett v Field), I set out some of the principles relevant to construction of home-made Wills at [52]-[55] (omitting footnotes):

52. The appropriate approach to construction of Wills that are wholly or substantially ’home-made’ was the subject of comment by the High Court in Lewis v O’Loughlin (1971) 125 CLR 320; [1971] HCA 53. In summarising the position, Sackar J in Jones v Robinson [2019] NSWSC 932 stated:

43. In Lewis v O’Loughlin (1971) 125 CLR 320, Barwick CJ considered the construction of a ’homemade’ will (at 326-327):

The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when constructing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman’s understanding of the situation in which the testatrix then stood. ….

It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evidence, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur…However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled.

44. Menzies J in the same case similarly considered the differences between the construction of a will drawn by the deceased themselves, over that of a lawyer. His Honour noted (at 330):

Discrepancies of this sort have less significance in a home-made will than one drawn by a lawyer.

45. It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased’s otherwise clear intentions.

53. In Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685 Robb J stated:

Furthermore, ”the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given”: Re Sanford [1901] 1 Ch 939 at 941 (Joyce J). That is particularly so where, as here, the idiosyncratic language of a lay draughtsman has no conceptual connection with any understanding of the law of succession or the terminology of earlier wills that have been considered in the decided cases.

54. Much is said in the law regarding ”counsel of perfection” in various matters. However, the reality of difficulties in construction, particularly of Wills that are substantially ’home-made’, needs to be faced.

55. Sometimes no construction of a clause will reconcile all aspects of its meaning. However, that does not stand in the way of the Court imputing to the disputed clause that which, even if slightly imperfectly, best accords with the effect which the testator is taken to, or likely to have, intended. 

Rectification principles

63. Section 27(1) of the Succession Act 2006 (NSW) (Succession Act) provides:

(1)  The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because—

(a)  a clerical error was made, or

(b)  the will does not give effect to the testator’s instructions.

(2)  A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.

(3)  However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if—

(a)  the Court considers it necessary, and

(b)  the final distribution of the estate has not been made.

64. I addressed the principles regarding rectification in Reeves v Reeves [2024] NSWSC 134 (Reeves). At [419], I referred to Gleeson JA’s statements in Singh v Singh [2018] NSWCA 30:

192. The standard of proof required in the rectification of a will is ”clear and convincing proof” on the balance of probabilities: Re Estate of Max Frederick Dippert [2001] NSWSC 167 at [34] (Young J); Rawack v Spicer at [30] and [31].

193. The relevant intention of the testator must be examined as at the date of the will, not the date of death: Rawack v Spicer at [27]-[28]; Vescio v Bannister [[2010] NSWSC 1274] at [5].

194. In Vescio v Bannister, Barrett J considered the meaning of the terms ”instructions” and ”intentions” of the testator. His Honour stated at [12]-[15]:

[12] Implicit in s 27(1)(b) is an assumption that the testator gave ”instructions” as to the content of the will. ”Instructions” are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally.

[13] In the present case, the will was drawn by a solicitor. There is evidence about the communication by the deceased to the solicitor of ”instructions”, in the sense of expression by her of her wishes as to how her estate should be disposed of by the will the solicitor was asked to prepare. The court thus has a basis for making findings as to the content of ”the testator’s instructions”.

[14] Having ascertained ”the testator’s instructions”, the court must construe the will as executed and compare its effect, according to its proper construction, with those ”instructions”: ANZ Trustees Ltd v Hamlet [2010] VSC 207 at [3]; and see the course of analysis and comparison in The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26. Only if some discrepancy appears can an order be made under s 27; and the only permissible order is one that causes the will to be in a form that carries out the testator’s ”intentions”.

[15] It follows that the court must also make findings about the ”intentions” of the testator – necessarily, of course, the ”intentions” existing when the will was made. It is those ”intentions” that any rectifying order must reflect. Although the legislation does not expressly say so, it must, I think, be inferred that the ”intentions” of the testator correspond, as to content, with ”the testator’s instructions”. I say this because, in the ordinary course, a testator’s intention is that his will should implement the instructions he gives for its preparation. It is with that intention that s 27(1)(b) is concerned. This seems to have been assumed in both Re Hawkes [2005] VSC 93 (at [17]) and Lawler v Herd [2010] QSC 281.

195. In Lockrey v Ferris [2011] NSWSC 179 at [73], Hallen AsJ helpfully identified three questions posed by s 27 of the Succession Act. First, what were the testator’s actual intentions as regard to dispositions in respect of which rectification is sought? Second, is the will expressed so that it fails to carry out those intentions? Third, is the will expressed as it is in consequence of, either a clerical error, or a failure on the part of someone to whom the testator gave instructions in connection with the will, to comply with those instructions?

Ademption principles

65. In Reynolds v Bonnici [2017] NSWSC 828, Lindsay J observed the following regarding ademption:

38. The word “ademption” derives from the Latin noun ademptio, meaning “a taking away”. The concept of ademptio was known to the Roman law of succession. In a case analogous to the present proceedings, an inter vivos gift to a legatee, giving to the legatee the value of a thing otherwise to be gifted by will, could operate as a gift in substitution for the legacy: WW Buckland, A Text Book of Roman Law (Cambridge University Press, 3rd ed, 1963), page 346.

39. In NSW there are at least four situations in which a valid legacy might “adeem”:

(a) A gift of specific property prospectively made by a will fails, and is said to have been “adeemed”, if (because it has been destroyed or transferred out of the ownership of the will-maker) that property no longer exists in the will-maker at the time, upon his or her death, the will becomes effective: Brown v Heffer (1967) 116 CLR 344 at 348; RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 292-293. This is the classic, most commonly encountered form of ademption.

…

41. The first of the four types of ademption is generally treated as distinct from the remaining three. It involves an alteration of the will-maker’s estate, property taken away from the estate. The will-maker’s intention is irrelevant: Re Morton [1963] VR 40 at 43-44… A basic characteristic of a specific testamentary disposition is that it fails by ademption if the subject matter of the disposition cannot be found amongst estate assets at the time of the will-maker’s death: Certoma, The Law of Succession in New South Wales (4th ed, 2010) , paragraph [11.170].

66. In RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 292-293; [2012] NSWCA 39, Campbell JA explains in an appendix to the judgment how the provisions of s 30 of the Succession Act and principles of ademption operate. At [130], his Honour states:

The basis on which ademption occurs is that no property that meets the description of the subject matter of the specific gift is found amongst the property of the deceased at the time of his or her death: Harrison v Jackson (1877) 7 Ch D 339 at 341; Fairweather v Fairweather at 129, 136, 142; Brown v Heffer at 348. Subject to a qualification recognised in In Re Slater [1907] 1 Ch 665, even if it is possible to identify property into which the specifically given item has been converted, the donee of the gift does not receive that property: Harrison v Jackson at 343-344; Fairweather v Fairweather at 136, 142; In re Bridle (1879) 4 CPD 336.

Submissions

67. Each of counsel provided helpful written submissions in the matter and a revised version of those submissions were contained in the Court Book.

68. Mr Lakeman, perhaps anticipating a submission that the gift comprising the Allambie Heights property had adeemed, submitted it was not the case and that, properly construed, the gift in the contested clause was of the Allambie Heights property or the proceeds of its sale.

67. Further, he submitted that extrinsic evidence, being the deceased’s statements to Terrie, were admissible pursuant to the provisions of s 32 of the Succession Act. As I have previously observed, s 32 has not received a significant amount of judicial attention: see Reeves at [383]. However, Mr Lakeman did not seek to advance the contention that s 32 operated differently from the general law position. Accordingly, there is no need for me to interrogate closely the ambit of it.

68. In oral submissions, Mr Lakeman emphasised that the sentences in the contested clause were a single gift and submitted that the second sentence will be meaningless if it was read as a separate instruction. He submitted that Terrie was the intended beneficial object of the monies from the sale after the mortgage.

69. Mr Turnbull separately developed the essence of Mr Lakeman’s submissions in more detail. He submitted in D7S as follows:

10. Scheme of Will. The first step is to determine the scheme of the 2019 Will. The scheme has two prongs: give the vinyl records to Chantelle Hamilton, and the real property to Therese Hamilton or any future real property acquired using the proceeds of sale of Allambie Heights. And that only make sense: at the time of making the 2019 Will, the deceased’s principal asset was Allambie Heights. He had some cash at bank and some vinyl records, so the 2019 Will disposes of the essentials, having regard to the fact that the 2019 Will was prepared without professional assistance.

11. The 2019 Will does not omit to deal with something of substance. It does not have a residue clause, but that is not unsurprising given the inexpert way in which it was prepared.

12. So, to give effect to that scheme the Court ought to find that clause 3 of the 2019 Will disposes of Terrigal to Therese, and to find against any ademption of Allambie Heights.

13. Construe Will as a whole. The next step is to construe the 2019 Will as a whole. As part of that process the words in lines 6-8 have to have some work to do. If lines 4-5 are a gift of Allambie Heights which adeemed on its sale, but Terrigal falls into residue, then the Court would give no effect to lines 6-8. The better construction is to read lines 6-8 as making a gift of the proceeds of sale of Allambie Heights (or whatever those proceeds might be transformed into).

14. Reading lines 4 to 8 together. Lines 4 to 8 need to be read as one continuous paragraph and to be construed as dealing with one type of gift: real property or the proceeds of same. That is so for the following reasons.

15. First, the testator did not leave a blank line gap between lines 4 and 5 (or any of the lines thereafter) as he did between lines 2 and 4. Therefore the subject matter at lines 4 to 8 are conceptually bound together.

16. Secondly, and alternatively, line 4 may be effectively taken as a sub-heading, providing for two eventualities: disposal of Allambie Heights if still owned at the date of death, or disposal of the proceeds of sale if Allambie Height were sold before death. Such an approach explains the blank space after “HAMILTON” in line 5—the testator was moving on to the second possible eventuality.

17. Thirdly, at the time the Will was made, Allambie Heights was mortgaged for $482,158.4 The testator was therefore contemplating a situation in which he would sell Allambie Heights before he died and purchase a new property which would be sold to Therese. That is supported by the fact that the whole Will only identifies two potential beneficiaries: Chantelle Hamilton and the plaintiff. Lines 6-8 must be making a gift to the plaintiff, not to anyone else, because they are adjacent to, and follow directly on from, lines 4-5 where a gift is made to the plaintiff.

18. For the reasons above, the gift of Allambie Heights did not adeem upon its sale. Rather, lines 6-8 provide for an eventuality which in fact occurred: the sale of Allambie Heights. Therefore, there is a “contrary intention” expressed in the Will: Succession Act 2006 (NSW), s 30(2).

72. Mr Turnbull in oral submissions made three particular points. First, he essentially elaborated on the notion of a scheme in construing the Will. Secondly, he emphasised the approach to be taken where a home-made Will is drafted without legal advice. Thirdly, he challenged the proposition that what I have called the second sentence in the contested clause was a reference to some property other than the Allambie Heights property. He disputed that it could contemplate a property that was bought in parallel with the Allambie Heights property rather than in substitution for it.

73. Mr Price directed detailed submissions in D1S focusing on the construction of the two sentences comprising the contested clause:

3.5.   The second sentence provides:

My Property @ [redacted] Allambie Hts

To My Daughter Terrie Hamilton.

3.6.   This sentence does not contain any spelling mistakes (although it does contain an abbreviation for the word “Heights”). Unlike the first sentence, a period has been inserted at the end of the sentence, and the testator appears to have had regard to the chapeau when writing the second sentence.

3.7.   There is nothing ambiguous about the second sentence.

3.8. There can be [no] doubt that the gift of the Allambie Heights property adeemed because it was not an asset owned by the Deceased at the date of his death: s 30, Succession Act 2006 (NSW); Brown v Heffer (1967) 116 CLR 344 at 348; Johnston v Maclarn [2002] NSWSC 97 at [13]-[15].

3.9.   The uncertainty in the will, and the dispute in this case, centres on the third sentence.

3.10.   The third sentence provides:

All Monies From The Sale After Mortgage Is Paid To Buse Used

To Buy A Property (House/Apartment) Cannot Be Given to Any

Partner Of Friend Or Used For Any Other Purpose IE Busines

3.11.   The third sentence has also ignored the chapeau. It makes no sense (grammatically or otherwise) to attempt to read the third sentence as a continuation of the second sentence. It makes no sense to read the third sentence as if the chapeau formed part of it.

3.12.   The fact that the third sentence commences on a new line strongly suggests that it is dealing with a new issue, separate from the second sentence.

3.13.   The matters that can be discerned from the third sentence are:

3.13.1.   By reason of the use of the phrase “All monies from the sale after mortgage is paid”, it appears that the testator was contemplating the sale of a property;

3.13.2.   The property that the testator was contemplating being sold cannot have been the Allambie Heights property because that property was already the subject of a gift in the preceding sentence.

3.13.3.   The testator directs the executor to purchase a new property; and

3.13.4.   The testator apparently contemplated that the property bought by the executor:

(a) might be given to someone, because the sentence specifies the class of person to whom the property may not be given; and

(b) might be used for a purpose, seemingly residential accommodation, because of the reference to “house/apartment” and because the testator saw fit to exclude its use for any other purpose.

3.14.   Whilst the authorities acknowledge that the misuse of language should not too readily defeat the deceased’s otherwise clear intentions, the fundamental problem in this case is that the deceased’s intentions are not clear because the third sentence is incomplete. ^[50]

3.15.   Although contemplating that the (newly purchased) property might be given to someone, the will does not specify the person to whom it is to be given. Nor does it specify when the new property is to be given. Similarly, if the new property is to be used, it doesn’t specify the person(s) who might use the property, for how long, and on what terms. The property cannot both be given to a beneficiary and retained by the executor to be used to provide accommodation for someone.

3.16.   The submissions on behalf of the plaintiff dated 29 July 2025 (par 25) and those on behalf of Bianca Hamilton dated 13 March 2025 (par 10) either assume these problems away and/or seek a result that is merely the imposition of the asserted subjective intent of the testator.

3.17.   There is nothing in the terms of the will that provides any proper basis for the conclusion that the objective intent of the testator was that the plaintiff was to receive the deceased’s property at Terrigal.

50. The words “the fundamental problem in this case is that the deceased’s intentions are not clear because the third sentence is incomplete” are underlined which is only viewable on the Caselaw website.

74. Orally, Mr Price referred to the decision of the Full Court of the South Australian Supreme Court in Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111, making reference to what was stated by Stanley J at [32]:

While the task of the Court in construing the will is to ascertain the intention of the testatrix, the Court must take care to avoid interpreting the will on the basis of some a priori assumption about the testatrix’s intentions. The surest guide to the testatrix’s intention is the language of her will. Her expressed intentions are embodied in its text read in light of the surrounding circumstances in accordance with the armchair principle. The search is for her expressed intentions, not what she meant to say, but what she actually said.

75. Mr Price did not accept that the second sentence of the contested clause, specifically, the words “All moneys from the sale after mortgage” necessarily relate to the Allambie Heights property. On his contention, the testator seemed to contemplate owning another property which, according to the wording of the Will, was to be sold, the mortgage paid and then another property acquired.

76. I raised with Mr Price that, if the second sentence is disconnected from the first, there is uncertainty as to what sale or mortgage the testator was referring to. He acknowledged that but remained unwavering in his submission that another property was contemplated by the testator, unconnected with the Allambie Heights property.

77. He stressed that the Will supports an understanding of the testator’s intention that the plaintiff only receive the Allambie Heights if it is owned by him at the time of death. He submitted the second sentence in the contested clause stands completely separately from this gift. In response to an observation by me that no beneficiary is explicitly named in the second sentence, he suggested that the gift may be for Bianca or Bowie or all of them.

78. However, ultimately, his submission was that the words used in the second sentence of the contested clause are not capable of giving rise to an objective meaning. On his contention, the identity of the beneficiary of the gift in the second sentence is a question that cannot be answered.

79. In any event, Mr Price submitted that, if I was not with him on these submissions (and rather I find that “All moneys from the sale after mortgage” relates to the Allambie Heights property), it still has to follow that the second sentence is not an absolute gift. His argument was that the testator intended for some form of restriction on the use of the property to persist beyond his death after it is purchased.

80. In reply, Mr Lakeman referred to my decision in NSW Trustee and Guardian v Matthews [2024] NSWSC 595 on the question of construction.

81. Mr Turnbull in reply made three points:

1. He noted that underlying Mr Price’s submission is the proposition that there is a problem with the second sentence in that it does not name a beneficiary. He stressed that is resolved by the interpretation he and Mr Lakeman put forward.

2. In response to Mr Price’s submission that the testator could have used clearer language to demonstrate an intention to gift Terrie any real property he owns at the time of death, Mr Turnbull noted the testator, without the assistance of legal advice, could have used a whole range of language but emphasised the task of the Court is to construe it as it stands.

3. He submitted that accepting the interpretation that Mr Price puts forward would mean that the third sentence has no work to do.

Determination

82. Each case of Will construction is different. There are various principles that provide general guidance, which depending on the particular case may have greater or lesser or no application.

83. At the time that the deceased made the Will in question, it seems that the property he had at his disposal was the Allambie Heights property, some moneys in bank accounts, a motor car, and I infer some vinyl records.

84. By the time of his death, the deceased’s assets had changed in two significant respects. He still held some personal effects (including the vinyl records), proceeds of bank accounts and his motor car. However, instead of the Allambie Heights property, he held the Terrigal property and, in addition, consequent upon Robert’s death, he had an interest in Robert’s estate which it turns out is of significant value.

85. In this particular case, to the extent that a basic scheme can be discerned, I have the impression that at the time the deceased made his Will, he focussed on items that were perhaps important to him. In this regard it seems to me that Mr Turnbull’s following submission is relatively close to the mark:

Scheme of Will. …. The scheme has two prongs: give the vinyl records to Chantelle Hamilton, and the real property to Therese Hamilton or any future real property acquired using the proceeds of sale of Allambie Heights. And that only make sense: at the time of making the 2019 Will, the deceased’s principal asset was Allambie Heights. He had some cash at bank and some vinyl records, so the 2019 Will disposes of the essentials, having regard to the fact that the 2019 Will was prepared without professional assistance.

86. The two particular items which he addressed were vinyl records and the Allambie Heights property.

87. The gift of the vinyl records (though containing some spelling mistakes) is straightforward and there is no dispute about that. The gift of the Allambie Heights property, as is evident from the litigation, is vexing to a degree.

88. The submissions of the parties have exposed a number of possibilities. At the risk of oversimplifying matters, at a basic level, those possibilities focussed upon questions of the scheme of the Will and the connectedness of the two sentences within the contested clause. The more nuanced submissions are set out above.

89. Each of the counsel deployed submissions to a question of rectification. It does not seem to me that rectification is of particular assistance here. Rather, I consider that clear enough meaning can be given by an approach of construction of the contested clause.

Particular surrounding circumstances

90. It seems to me that an important key to understanding the deceased’s expressed intent is viewing the contested clause in light of the surrounding circumstances. At the time that the deceased made his Will, the following context assumes importance:

1. The Allambie Heights property had been purchased in or about 1999, and he had been living in the Allambie Heights property with Terrie, Bianca and Bowie for about or close to 20 years. ^[51]

   51. CB 13[35].

2. He had a mortgage to HSF. It seems he had some “distress” about his ability to pay expenses or at least he had some focus on the fact amounts were due, ^[52] albeit that he was reluctant to discuss the debts and amounts with Terrie in any detail. ^[53]

   52. CB 60[15].

   53. CB 60[13], [16], [19].

3. The deceased was a pensioner and I infer that Terrie’s income was only covering the interest on the mortgage. ^[54]

4. By about 2018, he informed Terrie that the home would have to be sold in about two years and he was mindful of some form of period of grace under the mortgage before selling it. ^[55]

5. He and at least Terrie but also perhaps Bianca and Bowie required alternative accommodation. ^[56]

6. In or about early May 2019, the deceased informed Terrie that he wished to buy her a house because he did not think that he would live past 80. (I note that at that stage the deceased was 72 years and seven months).

7. The deceased did not at the time that he made his Will, in light of what I have described above, have sufficient resources from which he could purchase a property independently from use of the sale proceeds from the Allambie Heights property.

   54. CB 13[42].

   55. CB 60[12].

   56. CB 60[18].

91. On or about 31 May 2019, the deceased informed Terrie that he had made out a Will “today” and “I have left the house to you”. My ruling as to the evidentiary use of those words is set out above.

Meaning

92. In the above circumstances, it seems to me that the wording of the contested clause reveals an intent of the deceased that Terrie would have the benefit of the Allambie Heights property or the benefit of the sale proceeds.

93. There is no particular context which sheds light on the deceased’s words “Cannot be given to any partner or friend or used for any other purpose ie [business]”. There is no indication that, at the time the Will was made, Terrie had any relationship with a partner or friend such that she might be at risk of losing the moneys nor indeed any evidence that Bianca or Bowie was in a like position. There is no indication that any of them were ready to embark upon some business venture for which the funds might be used. I do not think that it is helpful to attempt to over-analyse or speculate regarding those matters or risks. The sense I have is that that was the deceased’s way of expressing his wish that the Allambie Heights property or its sale proceeds should be used for Terrie’s benefit in securing accommodation rather than for some other purpose.

94. What in fact occurred was the deceased, substantially with the sale proceeds from the sale of the Allambie Heights property, purchased the Terrigal property for accommodation.

95. Neither Mr Lakeman nor Mr Turnbull suggested that, in the events which occurred, the concluding words “Cannot be given to any partner” et cetera down to “business” impressed the gift to Terrie of the proceeds of sale or the Terrigal property with some ongoing obligation. Mr Price submitted that the language “is an attempt or does disclose an intention on the part of the testator to impose some form of restriction”.

96. In the scheme of things, I doubt that that is the case. However, Mr Hutchinson did not seek any particular declaratory relief addressing the outcome, if I found that the Terrigal property was effectively gifted to Terrie, that I should find that there was some ongoing constraint regarding that property. In the circumstances, I do not propose to say anything further about it.

Contending with Mr Price’s submissions

97. Since the construction that I have found is counter to Mr Price’s submission, it is appropriate I briefly say something regarding his submissions.

98. First, I do not think that it is appropriate to approach the construction of the contested clause as if the two sentences deal with separate issues. The fact that the second sentence commences on a fresh line does not to my mind “strongly suggest” that the deceased was dealing with a new issue.

99. Secondly, as to the submission that the words “All moneys from the sale after mortgage” cannot be the sale (or at least is not necessarily the sale) of the Allambie Heights property because the property was already the subject of the gift in the preceding sentence, I reject the submission. If one poses the question of what was the “sale after mortgage”, it seems to me the overwhelming inference is that the deceased meant the Allambie Heights property which was subject to a mortgage. He had no other real property that was subject to a mortgage. Indeed because of that and because of the context that I have referred to above, it seems to me that those words in the second sentence reinforce the connectedness between it and the first sentence.

100. Thirdly, regarding Mr Price’s submission that the Will does not specify the beneficiary of the property to be purchased with the moneys from the sale after mortgage is paid seems to me to be both prefaced and premised on a disconnectedness between the first and second sentences. It seems to me that, properly construed, there is a connectedness between the first and second sentences. On that basis, it is evident that the moneys from the sale after the mortgage is paid are to be used to buy a property which is gifted to Terrie.

97. Fourthly, as to Mr Price’s submission that the second of the contested sentences is incomplete, I accept that the deceased could have used clearer language. However, that does not mean that the language that the deceased used is devoid of dispositive meaning. When the two sentences within the clause are read together, it seems to me that, properly contextualised, the deceased intended for Terrie to receive the proceeds of sale of the Allambie Heights property or, as has occurred, the substitute property, which is the Terrigal property.

98. Fifthly, in respect of Mr Price’s submission that if a new property is to be purchased, it does not specify the persons who might use the property, for how long and on what terms, in a sense that is true, if one assumes that the second sentence is disconnected from the first. However, in light of the connectedness that I have found between the two sentences, it seems to me clear enough that the gift is a gift of what has become the Terrigal property to Terrie. Whilst the language that the deceased has used is not a model of perfection, I bear in mind the counsel of the High Court, in particular Barwick CJ and Menzies J, regarding the approach to be taken to construction in the case of Wills that are either home-made or prepared by a testator without legal assistance (see above).

99. Finally, I should observe that, as is evidenced, the Will contains no residue clause. It is not in issue between the parties that, other than the vinyl records and the Terrigal property, the balance of the deceased’s estate devolves on intestacy.

100. In the result, I consider that in light of my finding, the appropriate order is to make the declaration as sought in paragraph 1 of the amended summons.

Costs

105. There was a brief debate regarding the question of costs in the proceedings, both as to the burden and the source of costs.

106. Whilst Mr Lakeman raised a question regarding perceived deficiencies of the Will kit and consequentially the executor’s role in the litigation, I was not convinced that Mr Hutchinson was in any way implicated in the cause of the litigation such that he should not have costs on the usual indemnity basis.

107. Mr Price for his part submitted that the source of the payment of costs should arguably be from the subject matter of the dispute, namely the Terrigal property, and in this regard made reference to the decision of White J in Keulemans v Attorney-General, New South Wales [2013] NSWSC 1772; (2013) 12 ASTLR 202 in particular at [45]-[49] (especially [47]).

108. Costs are in the discretion of the Court. A number of statutory provisions bear upon the matter.

109. First, s 98 of the Civil Procedure Act 2005 (NSW) (CPA) confers a very wide discretion, enabling the Court to decide who should bear the costs of litigation before it, quite independently of whether those costs do, or do not, amount to testamentary expenses. ^[57] Secondly, s 93(3) of the Trustee Act 1925 (NSW) enables the Court to order the costs of construing a particular clause of a Will out of the property which is the subject of that clause. ^[58]

     57. Murdocca v Murdocca (No 2) [2002] NSWSC 505 at [70] per Campbell J (remarks concerning the provisions of s 76 of the Supreme Court Act 1970 (NSW), which for present purposes are not materially different to the relevant provisions of s 98 of the CPA).

     58. Ibid at [68].

110. In the midst of debate, I expressed the view that in the circumstances of this particular case I regarded the costs as being a testamentary expense which ordinarily would be paid out of residue. Mr Price accepted that position as I understood it without further contention about the matter. ^[59]

     59. T 35.11-.14.

111. Lastly, I note that essentially the representation for both Terrie and Bianca was representation in the same interests. As I have recently observed, at least in Will construction matters, there is a question of whether it is appropriate for two sets of costs to come out of the estate for parties who are contending for the same construction or outcome. ^[60] In this particular case, the construction issue was raised by Terrie, and Bianca contended for the same outcome. Without encouraging practice of several parties with the same interests being represented at a hearing of the matter as distinct from being bound by the outcome, it suffices for me to note that in this particular case I was assisted by Mr Turnbull’s submissions and I consider that the costs of Bianca’s representation should be paid out of the estate on the ordinary basis.

     60. Plunkett v Field at [28].

Orders

112. The orders of the Court are the Court:

1. Declares that in the events that have occurred and upon the true construction of clause 3 of the Will dated 31 May 2019 of the late John Currie Docherty Hamilton deceased, the Plaintiff is entitled on the distribution of the estate assets to the deceased’s real estate situate at and known as the Terrigal property.

2. Orders that costs of and incidental to the separate question for determination (as ordered by Meek J on 17 July 2025) be paid from the residue of the estate:

1. in the case of the First Defendant’s calculated on the indemnity basis; and

2. in the case of each of the Plaintiff and the Seventh Defendant calculated on the ordinary basis.

3. Grants leave for the parties to approach the Probate Registrar by email correspondence to obtain a Court-annexed mediation date.

4. Stands the matter over for directions to the Probate Registrar (Family Provision List) on 2 October 2025 with leave to vary the date based on the Court-annexed mediation date in Order 3 above.

ANNEXURE a

Annexure A is a partly redacted photo of the Will. Text that has been handwritten is within square brackets:

This Will is made by me [John Currie Docherty Hamilton] (full name)

of [redacted] the state of NSW (address)

Revocation

1. I revoke all previous Wills and testamentary acts.

Appointment of executor and trustee

2. I appoint as my executor and trustee [Robert Baxter Hamilton] (full name)

of [redacted] the state of NSW (address)

If my executor and trustee named above refuses or is unable to act or is unable to continue to act as my executor and trustee or I have not nominated an executor and trustee above than I appoint the senior lawyer of The Probate Professionals or its successor my executor and trustee.

Gifts

3. I give [I Give All My Vinal Records to my Grandaughte Shantell Hamilton]

[My property [redacted] Allambie Hts

To My Daughter Terrie Hamilton.

All Monies From The Sale After Mortgage Is Paid To Be Used

To Buy A Property (House/Apartment) Cannot Be Given To Any

Partner Of Friend Or Used For Any Other Purpose I.E Busines]

Signature of will-maker: [signed]

Dated [3/05/2019]

The will-maker signed in the presence of both of us being present at the same time and we attested the will-maker’s signature in their presence and of each other.

Witness 1 sign here: [signed]      Witness 2 sign here: [signed]

Full name: John Malouf         Full name: George Malouf

Occupation: Pharmacist          Occupation: Pharmacy Business Manager

Address: [redacted]            Address: [redacted]

Phone: [redacted]            Phone: [redacted]

**********

Endnotes

Decision last updated: 21 August 2025