J v Lieschke

The High Court of Australia heard an appeal in *J v Lieschke*. The dispute concerned the interpretation of a clause in a will that provided for the distribution of the testator's residuary estate. The primary issue was whether the testator's grandchildren were entitled to a share of the residuary estate, or if their entitlement was contingent upon their surviving their respective parents.

The Court was required to determine the proper construction of the following clause in the will: "I give devise and bequeath all the rest and residue of my estate unto my children in equal shares and if any of my children shall predecease me leaving any child or children who shall survive me then such child or children shall take the share which his her or their parent would have taken had such parent survived me." The central legal question was whether the phrase "who shall survive me" referred to the grandchildren surviving the testator, or surviving their own parent.

The High Court held that the clause should be construed to mean that the grandchildren must survive the testator, not their own parent. The Court reasoned that the grammatical structure of the sentence indicated that "who shall survive me" was a qualification on the children of a predeceasing child. The phrase "his her or their parent" referred to the child of the testator who had predeceased them. Therefore, the grandchildren were entitled to a share of the residuary estate as they had survived the testator, even though their respective parents had predeceased the testator.