Kinloch v Manzione

This case involved a dispute over the interpretation of a will made by Lucy Maniam Kinloch, who passed away on 19 August 2019. The will was contested between the two surviving daughters of Kinloch, Elizabeth and Eleanor, who were named as executors of the will, and the executor of the will of Robert, the son of Kinloch who died on 24 November 2019, more than 30 days after Kinloch's death but before probate was granted. The issue that arose was whether Robert had attained a "vested interest" in the residue of his mother's estate before his death, and if not, whether his share of the residue would be held on trust for his two children until they attained their majority.

The court considered the language of the will, specifically clause 3.2(c), which provided for a gift over of part of the residue of the estate to the children of any beneficiary who died before attaining a vested interest. The court held that the phrase "dies before attaining a vested interest" meant "dies before the estate is fully administered and available to be distributed". The court also considered three decisions of the Supreme Court of New South Wales, which supported the construction of the will advocated for by the plaintiffs. Finally, the court considered the provisions of the Wills Act 2006 (ACT), and held that the construction of the will which the court adopted displaced the presumption under s 31B(1) of the Wills Act.

The court made declarations that, on the proper construction of the will, Robert died before attaining a vested interest in the residue of his mother's estate, and that upon attaining their majority, Robert's two children are entitled to receive one third of the net residue of the estate as tenants in common in equal shares. The court did not consider it necessary to make a formal order requiring the plaintiffs to hold one third of the net residue of the estate on trust for Robert's children, as the declarations made were sufficient to resolve the issues in controversy between the parties.