McPherson v Byrne

McPherson v Byrne involved a dispute regarding the interpretation and rectification of a will. The case was heard in the Supreme Court of Queensland. The central issue was the construction of a testamentary disposition, specifically concerning the distribution of shares to the son who predeceased the testator and the residue of the estate. The court was tasked with determining whether the statutory rules of construction should apply to the shares and if there was any indication in the will to override the provisions of section 33N(2) of the Succession Act 1981. Additionally, the court had to consider whether the will should be rectified to reflect the testator's true intentions.

The court examined the plain meaning of the words used in the clause that gave shares to the son who predeceased the testator. It also considered whether the qualifying words related to the gift of the residue should be incorporated into the clause regarding the shares, particularly when reading the will as a whole. The court found that there was no clear evidence of a contrary intention in the will that would displace the application of section 33N(2) of the Succession Act. The court also considered the evidence from the solicitor who took the testator's instructions, which indicated that the will as executed did not reflect the testator's intentions for the residuary gift, despite the testator's approval of the words used in the residuary clause.

The court concluded that the second respondents were entitled to the gift of shares in clause 4 of the will. It further determined that the time for making an application to rectify the will should be extended. Finally, the court ordered the rectification of clause 5 of the will by deleting the words "such of" and the words "as shall survive me and if more than one in equal shares as tenants in common," as per section 33(1) of the Succession Act 1981. This rectification aimed to ensure that the will accurately reflected the testator's intentions.