John Hamilton Condon v Simon Anthony Tonkin

[2018] NSWSC 449

Supreme Court

New South Wales

Medium Neutral Citation:

John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449

Hearing dates:

13 April 2018

Date of orders:

13 April 2018

Decision date:

13 April 2018

Jurisdiction:

Equity

Before:

Emmett AJA

Decision:

The Court:

 

1.   Declares that each of the first two instances of the word “children” in cl 3 of the Will dated 12 October 1998 of Margaret Mary Condon (the “Deceased”) means Nicole Hamilton Condon only.

 

2.   Makes no order as to the defendant’s costs with the intent that he will bear his own costs of proceedings.

 

3.   Orders that the plaintiff’s costs be paid or retained as the case may be from the estate of the Deceased on the indemnity basis.

 

4.   Notes the agreement of the parties that:

 

a. the defendant acknowledges that he is not an “eligible person” who may apply to the Court for a Family Provision Order in relation to the estate of the Deceased pursuant to Ch 3 of the Succession Act 2006 (NSW); and

 b.   the defendant covenants that he will not institute any proceedings or make any claims against the estate of the Deceased.

Catchwords:

SUCCESSION – construction of will – whether references to “children” in will of the deceased include the defendant – proceedings settled between parties – declaration made that references to “children” do not include the defendant

Legislation Cited:

Succession Act 2006 (NSW), Ch 3

Category:

Principal judgment

Parties:

John Hamilton Condon (Plaintiff)
Simon Anthony Tonkin (Defendant)

Representation:

Counsel:
A Stevens (Plaintiff)

  Solicitors:
Lexington Law Group Pty Ltd (Plaintiff)
Dougal Geddes Lawyers (Defendant)

File Number(s):

2017/00281106

Judgment

1. These proceedings concerned the proper construction of clause 3 of the last will (the Will) of Margaret Condon who died on 27 January 2017 (the Deceased). The plaintiff, Mr John Condon (the Executor), is the widower of the Deceased and is her executor and trustee under the Will, having been granted probate of the Will on 7 August 2017.

2. By clause 3 of the Will, which was made on 12 October 1998, the Deceased gave, devised and bequeathed the whole of her estate to the Executor on trust to sell, call-in and convert such parts of the estate as did not consist of money and to hold the net proceeds from such sale, calling-in and conversion:

“… upon trust for such of my children as shall survive me and if more than one then as tenants-in-common in equal shares provided further that in the event that any of my said children shall predecease me leaving a child or children who shall survive me then such child or children shall take and if more than one then equally between them the share which their, his or her parent would have taken of and in my Estate if such parent had survived me and attained a vested interest therein.”

3. The Deceased was born in 1949. In 1975, she gave birth to the defendant, Mr Simon Tonkin. Some 17 days after his birth, the defendant was adopted by Rodney and Pauline Tonkin and was raised as their child.

4. The Executor and the Deceased were married in May 1980. Towards the end of 1980, the Deceased ceased working and thereafter, she was supported by the Executor financially until her death. Following their marriage, the Deceased moved into the Executor's home at West Pennant Hills. In April 1982, the Deceased and the Executor had a child, Nicole Condon (Nicole). The Executor, the Deceased and Nicole continued to live at the West Pennant Hills house and raised Nicole there. The house was sold in early 2015.

5. In 2004, the defendant received information about his adoption through the Department of Community Services and the Catholic Adoption Agency. The defendant and the Deceased then reinitiated contact in January 2006.

6. The question raised by the summons filed on 15 September 2017 is whether, on the true construction of the Will and in the events that have happened, the first two references to “children” in clause 3 of the Will quoted above are to Nicole only and not to the defendant. The Executor and the defendant have now agreed that a declaration to that effect should be made.

7. In construing a will, the Court seeks to ascertain the intention of the testator, as stated in the will. Thus, where a question arises as to whether a will should be construed literally or in the way in which there is every reason to believe that the maker of the will intended it to be construed, the latter construction is to be preferred. It will often be necessary for the Court to have regard to facts that are extrinsic to the will that constitute the background matrix of surrounding circumstances against which a testator may be presumed to have directed his or her mind in the preparation of the will. Such facts may be established on the basis that a testator will generally be presumed to know the circumstances of his or her family and therefore has not spelt out the obvious in the will.

8. As a general rule, a gift to “children" in a will imports legitimate children. Whether it includes children other than legitimate children is a matter that might depend upon the background matrix of surrounding circumstances.

9. The relevant matrix of surrounding circumstances at the time of the making of the Will by the Deceased in October 1998 may be summarised as follows:

• the Deceased had given birth to the defendant in 1975 and he had been adopted 17 days after his birth;

• there was no relationship or contact between the Deceased and the defendant prior to the making of the Will and there is no evidence that any contact with the defendant was expected on the part of Deceased;

• the Deceased and the Executor had been married for 18 years and they had one child together, Nicole, who was 16 years of age, was attending a local high school and was entirely financially dependent on the Executor and the Deceased;

• none of the Executor, Nicole or the solicitor who drafted the Will was aware that the defendant existed.

10. As I have said, the parties have agreed to settle the proceedings on the basis that the Court makes a declaration that the first two instances of the word “children" in clause 3 of the Will refer to Nicole only. In the circumstances described above, I consider that it is appropriate to make such a declaration. The parties have also agreed that the defendant will bear his own costs of the proceedings and that the Executor's costs be paid or retained as the case may be from the estate of the Deceased on the indemnity basis. In addition, the defendant acknowledges that he is not an “eligible person” for the purposes of an application to the Court for a family provision order in relation to the estate of the Deceased under Ch 3 of the Succession Act 2006 (NSW). The defendant has also agreed to covenant that he will not institute any proceedings or make any claims against the Estate of the Deceased. I propose to make orders to give effect to the agreement of the parties.

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Decision last updated: 13 April 2018