PASCALL & PASCALL

In *Pascall & Pascall*, Hogan J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a will. The applicants, the executors of the will, sought directions from the court regarding the distribution of the deceased's estate, specifically concerning a gift of residue to the testator's grandchildren. The central issue was whether the testator intended to include grandchildren born after the date of the will but before the testator's death, or only those grandchildren alive at the time the will was executed.

The court was tasked with construing the relevant clause of the will to ascertain the testator's intention regarding the beneficiaries of the residuary estate. This involved considering the language used in the will, the surrounding circumstances at the time of its making, and established principles of testamentary construction. The primary legal question was whether the phrase "my grandchildren" encompassed after-born grandchildren, thereby creating a class gift that would include all grandchildren whenever born.

Hogan J applied the principle that the words of a will should be given their ordinary and natural meaning, unless the context clearly indicates a contrary intention. His Honour referred to established authorities on the construction of class gifts, noting that a gift to a class of persons described by relationship, such as "grandchildren," generally includes all persons answering that description at the relevant time, which in this case was the death of the testator. The court found that the testator's use of the plural "grandchildren" and the absence of any limiting language suggested an intention to benefit all grandchildren, regardless of when they were born. Consequently, the court held that the residuary estate was to be divided equally among all grandchildren of the testator alive at the time of his death.