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Plunkett v Field

Plunkett v Field

Case [2025] NSWSC 797 17 July 2025

Will Construction

Adverse Possession

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Plunkett v Field [2025] NSWSC 797
Hearing dates: 17 July 2025
Date of orders: 17 July 2025
Decision date: 17 July 2025
Jurisdiction: Equity
Before: Meek J
Decision:
Determination that on the proper construction of the Will as rectified, the gift of Residue to Jay-Ashley Carl Andrew Fieldmartin vested in him at the time of the deceased’s death. Orders for the plaintiff’s costs to be paid out of the estate on the indemnity basis and for the second defendant’s costs of and incidental to the proceedings to be paid out of the residue of the estate on the ordinary basis.

Catchwords:
SUCCESSION — Will construction — ‘Home-made’ Wills — Will drafted by deceased with minimal revision suggestions by a solicitor and no suggested revision to a contentious clause by which the deceased created a fund for his nephew which “cannot be liquidated before his 35th birthday” — Nephew died aged 29 — Whether the gift was vested in the nephew upon the deceased’s death — Discussion of the scheme of the Will — Determination that the gift vested upon the deceased’s death
SUCCESSION — Will construction — ‘Home-made’ Wills — Approach to construction — A precedential approach risks missing or perplexing the deceased’s expressed intention — Caselaw provides guidance as to the proper approach to construction, but may otherwise have limited specific use in construing the disputed provisions of a Will

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Arnott v Kiss [2014] NSWSC 1385
Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685
Boyd v Peeters [2024] NSWSC 1035
Catholic Metropolitan Cemeteries Trust v Attorney-General of New South Wales [2024] NSWCA 30; (2024) 422 ALR 33
Clerk v Equity Trustees Executors and Agency Co Ltd (1913) 15 CLR 625; [1913] HCA 8
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Gibb-Maitland v Perpetual Executors Trustees & Agency Co (WA) Ltd (1947) 74 CLR 579; [1947] HCA 35
Johnson v Johnson [2022] NSWSC 44
Jones v Robinson [2019] NSWSC 932
Keiley v Fowler (1768) Wilm 298; (1768) 97 ER 115
Lewis v O’Loughlin (1971) 125 CLR 320; [1971] HCA 53
NSW Trustee and Guardian v Matthews [2024] NSWSC 595
Ramsay v Lowther (1912) 16 CLR 1; [1912] HCA 68
Re Pulbrook; Pulbrook v Pulbrook (1937) 37 SR (NSW) 345
Saunders v Vautier (1841) Cr & Ph 240; 49 ER 482
Serwin v Dolso [2020] NSWSC 370

Texts Cited:
Collins Dictionary (online ed)
Dal Pont, G E, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths)
Macquarie Dictionary (online ed)

Category: Principal judgment
Parties: Olive Plunkett (Plaintiff)
Sarah Field (First Defendant)
Lester Martin (Second Defendant)
Representation: Counsel:
P Wallis (Plaintiff)
L Ellison SC with K Young (Second Defendant)
Solicitors:
McDermott & Associates (Plaintiff)
Dormer Stanhope Lawyers (Second Defendant)

File Number(s): 2025/89259

ex tempore JUDGMENT (revised)

Introduction

HIS HONOUR: Marc Andrew Sebastian Field (deceased), a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Plunkett v Field

Details

AGLC: Plunkett v Field [2025] NSWSC 797
Case: [2025] NSWSC 797
Decision Date: 17 July 2025

CaseChat Overview and Summary

In Plunkett v Field, the dispute centred around the interpretation of a will drafted by the deceased, who had minimal assistance from a solicitor. The deceased created a fund for his nephew, stipulating that it "cannot be liquidated before his 35th birthday." The nephew, however, passed away at the age of 29, raising questions about whether the gift was vested in him upon the deceased's death. The court was tasked with determining the nature of the gift and whether it vested upon the deceased's death or remained contingent on the nephew reaching the age of 35.

The court addressed the legal issues by examining the approach to the construction of a will, particularly focusing on the scheme of the will and the intentions of the deceased. The court acknowledged the precedential approach but emphasised that it risks missing or perplexing the deceased's expressed intention. Instead, the court turned to case law to guide its interpretation, seeking to understand the deceased's intentions as expressed in the will. The court considered the entire will, the context in which the clause was written, and the logical implications of the language used.

After examining the will's language and the deceased's intentions, the court determined that the gift vested in the nephew upon the deceased's death. The court found that the language used in the will indicated a clear intention to vest the gift immediately, regardless of the nephew's age at the time of the deceased's death. The court's decision was based on a detailed analysis of the will's language and the context in which it was written, ensuring that the deceased's intentions were properly reflected. The court concluded that the gift was not contingent on the nephew reaching the age of 35, but rather vested upon the deceased's death.

The final orders of the court were that the gift in the will was vested in the nephew upon the deceased's death, and was not contingent on the nephew reaching the age of 35. This determination ensured that the deceased's intentions were properly reflected and that the nephew's entitlement to the gift was not delayed by the condition of reaching a certain age.

Orders