Plunkett v Field

Case •

[2025] NSWSC 797

•

17 July 2025

No judgment structure available for this case.

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

  1. HIS HONOUR: Marc Andrew Sebastian Field (deceased), a finance director, was born in England and travelled to Australia on a working Visa. He settled in Darlinghurst and passed away on or about 28 December 2020, aged 51.

  2. The final few years of the deceased’s life were marked by tribulation. He was deeply estranged from his sister (Sarah) and sadly his dear mother (Anne or mother) and his beloved dog (Jimmy) both pre-deceased him. The pall of misfortune pervading those years endured past his death. His nephew (Jay), Sarah’s son, whom the deceased had sponsored to come to Australia, tragically took his own life and the deceased’s efforts to dispose of his estate effectively, to those he cherished, have been stymied by a poorly drafted Will.

  3. Ultimately, for the reasons recounted below, his dispositive plans have not been entirely thwarted. I have determined that the gist of the deceased’s testamentary scheme can be sufficiently distilled with the result that his expressed intentions can be given effect to.

Background

  1. Jimmy passed away in October 2019 and Anne on 1 December 2019. The deceased was survived by Sarah, the first defendant. Sarah appears to have had a number of relationships. Through one relationship she has two children, Finn and Max, the deceased’s nephews. Relevantly, through a second relationship, although described by counsel as a “summer fling”, Jay was born was born in 1995, his father, Lester Martin, being the second defendant (Lester).

  2. Jay died on 24 October 2024, aged 29. He had returned to England (the homeland of his birth in Ascot, Berkshire) and was living in Clapham, London at the time of his death.

  3. The deceased made a last Will dated 24 November 2017 (Will), probate of which was granted on 30 July 2021 to the named executors, a friend named Olive Plunkett (Olive) and Jay.

  4. The deceased’s New South Wales estate, as disclosed in the inventory of property, totalled $1,991,785.24, the principal assets of which were:

  1. property at 219 Crown Street, Darlinghurst, $1.7 million; and

  2. proceeds of Australian superannuation account, approximately $221,000.

  1. Evident from the terms of the Will, the deceased held property outside New South Wales, principally being: [1]

  1. property in Clapham, London; and

  2. property in Fethiye, Turkey.

    1. Court Book (CB) 35[5].

  1. Both of those properties are in the name of the deceased and will need to be transferred to Olive as his surviving Executrix. For that transfer to take place, a formal Death Certificate needs to be issued for Jay’s estate which has been delayed pending an investigation into his death by Michelle Haste, Assistant Coroner for London Inner South and a Coronial inquiry. [2]

    2. CB 35[7]-[9].

  2. On 26 September 2022, Olive and Jay filed a summons naming Sarah as defendant, seeking orders for rectification of the deceased’s Will pursuant to s 27 of the Succession Act 2006 (NSW).

  3. The application was dealt with in chambers by Hallen J.

  4. On 22 November 2022, his Honour made orders extending the time for the application for rectification up to the date of the filing of the summons, declared that the Court was satisfied that the deceased’s Will did not carry out his testamentary intentions, and ordered that the Will be rectified by deleting cl 6(f) in its entirety.

  5. A specific notation was made by Hallen J that Sarah, being the only person entitled on intestacy, consented to the orders and notations.

  6. Jay died intestate with the consequence that his parents are the statutory next of kin for the purposes of inheriting his estate.

  7. On 6 March 2025, Olive filed a summons seeking construction of the deceased’s Will. She named Sarah as first defendant and Lester as second defendant.

  8. The relief sought in the summons posed the question of whether the gift of residue of the deceased’s estate to Jay vested in him as of the date of his death. This question is largely framed around construction of cl 15 of the Will, being:

The Fund No. 2 cannot be liquidated before his 35th birthday and then only on the provision of good conduct as decided by my trustees or an independently appointed advisor until such time as he is considered as such.

  1. In the event that the gift was vested, the summons sought the declaration that the whole of the residue of the deceased’s estate formed part of Jay’s estate. In the event that it did not vest, the summons contemplated that an intestacy arose, but no particular relief was sought in respect of such intestacy.

  2. In the circumstances described below, leaving aside specific legacies, and having regard to the trust provided for Jimmy and the provisions naming Anne and Jay as beneficiaries, there is no serious dispute that in the event that the gift for Jay did not vest, there was a partial intestacy.

  3. The persons affected by the relief sought in the summons are Sarah and Lester. Sarah, who lives in Windsor, Berkshire, has been served with the summons and has not filed any appearance nor played any active part in the proceedings. She has corresponded with Mr McDermott indicating that she did not intend to engage a legal representative and that she trusted the Supreme Court to make a correct and fair legal decision. Lester, who lives in Northampton, has appeared by counsel.

  4. The estate has been administered to some degree and distributions have been made. Prior to his death, payments were made to Jay totalling $1,088,162.64 comprised of: [3]

    3. Affidavit of John McDermott sworn 6 March 2025, CB 28[15]-[16].

  1. $507,092.02 for expenses related to estate property repairs and maintenance;

  2. $107,300.10 as reimbursement for estate debts, including legal and accounting costs incurred in other jurisdictions;

  3. $300,000 to be invested until Jay attained the age of 35 years; and

  4. $173,770.52 as a partial distribution called for by Jay, and including Jay’s own personal debts and gifts made by the deceased.

  1. As of 6 March 2025, the value of the residuary estate was estimated to be in the range of $800,000 to $900,000 after converting proceeds of foreign assets into Australian currency.

  2. Massive amounts of money appear to have been paid to him. It is not entirely clear why some of those payments have been made. Nonetheless, for present purposes, it is not necessary to probe that.

  3. The matter was the subject of early case management. Mr Wallis of counsel for the plaintiff and Mr Ellison SC and Mrs Young for Lester had prepared outlined submissions.

  4. On 27 June 2025, having received the Court file and provisionally perused the submissions, at my request, my Associate sent an email to the legal representatives which included the following:

The first defendant (Sarah Field) appears to have been served with a summons but has not filed any appearance. Please confirm whether that is the case or not.

Submissions from the plaintiff and the second defendant are on the Court file. On a provisional perusal of those submissions it appears that the plaintiff (PS [26]) and the second defendant (D2S [10]-[11]) both contend for the same position namely that on the proper construction of the Will the deceased’s nephew (referred to in the materials as Jay) attained a vested interest by surviving the deceased and accordingly any gift of residue vested in him with the outcome that there is no intestacy.

There does not appear to be any active contradictor for the alternative (intestacy) position, noting that the first defendant has seemingly not appeared.

Can you please reflect on the above and be ready to address the question of whether some other party should be joined or appointed as an amicus in the matter so that there is an active contradictor for the alternative position.

  1. On 2 July 2025, at the listing of the matter for pre-trial directions, Mr Wallis (due to a diary mishap) did not appear. Mrs Young appeared for Lester.

  2. Mrs Young submitted that there was no obstacle to the Court issuing declaratory relief in the absence of a contradictor, citing Johnson v Johnson [2022] NSWSC 44 per Ward CJ in Eq at [38]-[46] and Catholic Metropolitan Cemeteries Trust v Attorney-General of New South Wales [2024] NSWCA 30; (2024) 422 ALR 33 at [26]-[27] per Leeming JA (Bell CJ at [1] and Ward P at [2] agreeing).

  3. I was satisfied in the circumstances of the case that it was appropriate for the matter to proceed, notwithstanding there was no active contradictor for the contrary position of intestacy in circumstances in which Sarah, who had benefited by reason of the intestacy, had been named as a party but chosen not to participate in the proceedings as outlined above.

  4. Nonetheless, in circumstances where both Olive as Executrix and Lester as second defendant were both contending for the same outcome, I raised as an issue for reflection the question of whether it is appropriate for two sets of costs to come out of the estate for parties who were contending for the same outcome.

  5. Relevantly, I made the following order:

THE COURT:

2. Notes that nonetheless it appears that the executor contends for an outcome that is the same as the second defendant and in those circumstances having regard to the issue of whether two sets of costs ought come out of the estate for parties who are contending for the same outcome, the Court invites the executor to consider whether it is sufficient for the executor to simply provide (as has been done) an outline of written submissions and not to incur further expense associated with appearing on the hearing.

Hearing

  1. On the hearing of the matter before me this morning, Mr Wallis appeared for Olive and Mr Ellison SC and Mrs Young appeared for Lester.

  2. The summons was supported by a number of affidavits of Olive’s solicitor, Mr McDermott, which have been read on this application. The Court Book includes those affidavits and submissions of Mr Wallis and Lester’s counsel.

  3. The evidence on the hearing did not detail how the Will came to take the form that it did. The file dealing with the application for rectification for the deceased’s Will sheds more light on the matter.

  4. When I raised the lack of detail on the hearing, Mr Wallis read an affidavit from Mr McDermott in the rectification file, together with an affidavit from a retired solicitor, Roslyn Cronin, with leave.

Will

Drafting of Will

  1. In Mr McDermott’s affidavit sworn on 23 September 2022 in support of the application for rectification, he indicates that the Will was drafted by Noel Francis Bracks, the then principal of Noel F. Bracks & Company Solicitors, who died on 6 July 2018 aged 85.

  2. According to Mr McDermott, the Will appears to have been the last of two Wills prepared for the deceased by Mr Bracks, or an employee within his firm, apparently with changes and updates made to the form of the Will when instructions were received from the deceased.

  3. For the purposes of the rectification claim, it seems that Mr McDermott made contact with a solicitor, Margaret Hole, who had been appointed as administrator for Mr Bracks’ legal practice. It suffices to note that she indicated that many of Mr Bracks’ files were incomplete, and specifically in relation to the deceased’s file, she was unable to find anything of use. It appears that the only relevant documents that remained were a number of emails and some drafts of what eventually became the deceased’s Will.

  4. Ms Cronin, now a retired solicitor who was employed in Mr Bracks’ firm up until 2016, had prepared a Will for the deceased executed on 23 March 2015. She provided an affidavit which addressed at least the drafting error in cl 6(f) of the Will which was used in support of the successful application for rectification. In her affidavit, she referred to the complexity of the deceased’s instructions.

  5. It is clear that subsequent to the execution of the March 2015 Will, the deceased initiated, in late June 2017, correspondence with Ms Cronin, desiring some changes to his Will, to which Mr Bracks replied.

  6. On 18 July 2017, the deceased sent an email to Mr Bracks, although to the email address of Ms Cronin, indicating that he could not find a copy of his previous Will and then set out nine dot points detailing testamentary dispositions which he proposed to be included in an amended Will.

  7. Further correspondence ensued throughout the period of August-November 2017.

  8. On 3 November 2017, the deceased sent to Mr Bracks an email attaching a draft updated Will:

Hi Noel,

Please see attached my new updated will.

This needs to be tidied up, formatted and made to be legally compliant.

Any questions please let me know.

Very best,

Mark

  1. The form of the Will which is attached bears a strong similarity to the final version of the deceased’s Will. The wording in cl 15 provided by the deceased at that point of time is the same as in the final version of the Will.

  2. On 9 November 2017, Mr Bracks sent the deceased a further draft of the Will which contained a number of relatively minor suggested changes marked up in red.

  3. Significantly and regrettably, those suggested changes, whilst addressing some matters, did not grapple with the curious and unconventional wording of cl 15.

  4. The final version of the Will is in precisely the same form as that marked up draft provided by Mr Bracks.

Terms of the Will

  1. Relevantly, the deceased’s Will states: [4]

    4. Readers should be aware certain parts of the Will are underlined and the underlining is only viewable on the Caselaw website.

6. My trustees hold my estate on trust:

(a) To sell, call in or convert into money any part of my estate and pay any and all death, estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees or expenses associated with my death or the administration of my estate;

(b) To give to my nephew JAY-ASHLEY FIELDMARTIN my Bulgari watch provided he survives me and if not this gift shall form part of the rest and residue of my estate.

(c) To give to my nephew FINN SHERIDAN my Cartier Roadster plus GBP (50,000.00) provided he survives me and if not this gift shall form part of the rest and residue of my estate;

(d) To give to my nephew MAX SHERIDAN my Cartier Santos 100 plus GBP (50,000) provided he survives me and if not this gift shall form part of the rest and residue of my estate;

(e) To give to my nephew JAY-ASHLEY FIELDMARTIN the contents of my safe provided he survives me and if not this gift shall form part of the estate that shall be given to my other surviving nephews as tenants in common in equal shares as directed by my Trustees;

[(f) – omitted following rectification]

SCHEDULE ONE HEREINBEFORE REFERRED TO:

7. My trustees must set up a fund (“the fund. No 1”) to consist of:

(a) The proceeds of sale of my Australian Real Estate;

(b) My Superannuation Fund;

(c) Auction monies received from the sale of contents of my house except those furnishings, good and chattels my Nephew Jay Ashley Field decides he wishes keep for his own use.

(d) Bank accounts;

(e) Shares and investments.

BUT ONLY UP TO THE VALUE OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) AND THE REST AND RESIDUE THEREOF IS TO BE DISTRTIBUTED PURSUANT TO SCHEDULE 2 HEREOF.

8. My trustees must invest fifty per centum (50%) of the fund as authorised by law or any clause in this will but only 15% in an interest bearing account.

9. The purpose of this Trust is to provide for the changing needs of my dog Jimmy.

10. My trustees must consult with ROBERT LENGYEL and SAM LENGYEL attaining the appropriate guardianship of my dog Jimmy, which must be a home without any children.

11. I direct my trustees to pay to the guardian of Jimmy the following:

(a) The sum of Two Thousand Dollars ($2,000.00) per month for the good and assistance in accommodation for Jimmy.

(b) Reimburse veterinary accounts.

12. I GIVE AND BEQUEATH the following legacies to be paid from the money accrued from the liquidation of my Australian estate pursuant to Clause 7 hereof:

(a) -(i) [various legatees]

13. I GIVE AND BEQUEATH the following from my estate to be paid from the money accrued from the liquidation of my Australian estate pursuant to Clause 7 hereof:

(a)-(e) [various bequests]

14. The funds in excess of those utilised to provide an income for the love and care of my dog Jimmy in Clause 11 will be held in trust exclusively for my nephew JAY ASHLEYFIELD. This trust shall be hereafter referred to as Fund No. 2.

15. The Fund No. 2 cannot be liquidated before his 35th birthday and then only on the provision of good conduct as decided by my trustees or an independently appointed advisor until such time as he is considered as such.

16. However any student debt or credit card debt can be settled before the formation of the trust.

17. The aforementioned trust can only contain a maximum of 15% in an interest only bearing account and the rest must be invested in equity investment funds.

18. During the duration of the trust my nephew is entitled to 50% of the trust’s growth on top of the initial capital amount paid out at the end of each financial year.

19. UPON the death of Jimmy the rest and residue of Fund No. 1 will then to paid as a whole into the investment vehicles of Fund No. 2 provided for under Clause 14 hereof.

SCHEDULE THREE HEREINBEFORE REFERRED TO:

20. My trustees must set up a fund (‘‘the fund No. 3”) consisting of the following:

(a) Proceeds of sale of my house and contents [in London];

(b) Proceeds of sale of my villa in Turkey;

(c) Any other sterling denominated investments, accounts and shares.

21. My trustees must invest the fund as authorised by law or any clause in this will BUT shall not invest more than 15% in an interest only bearing account.

22. The purpose of this Trust Fund No. 3 is to provide for the changing needs of my mother.

23. My Trustees shall for the lifetime of my mother pay to her from Fund No. 3 the sum of 2000 GBP per month paid quarterly in advance with the discretion to pay a higher amount for care required and the payment of medical bills.

24. UPON the death of my mother I GIVE AND BEQUEATH the rest and residue of the Fund No. 3 to Fund No.2 pursuant to the conditions of Clause 14 subject to the following payment:-

(a) A GBP £50.000.00 share to Battersea Dogs & Cats Home, 4 Battersea Park Road, London SW8 4AA United Kingdom;

(b) A GBP £50,000.00 share to PDSA Whitechapel Way, Priorslee, Telford, Shropshire TH29PQ United Kingdom;

(c) A GBP £50.000.00 share to Tusk Trust, 4 Cheapside House, Townbridge House, High Street, Gillingham, Dorset SP8 4AA United Kingdom

(d) A GBP £50,000.00 to a charity or research organisation that is actively dedicated to the clean-up of plastic from the worlds oceans

…..

28. I SPECIFICALLY EXCLUDE my sister from obtaining any advantage under this Will as we have absolutely no relationship whatever and I do not consider her to be a family member.

Construction principles

  1. In law, construction is the process of ascertaining the meaning of a written document: Macquarie Dictionary, online ed.

  2. In NSW Trustee and Guardian v Matthews [2024] NSWSC 595, I set out at [46]-[58] some principles relevant to the construction of a Will. In particular, I stated:

54. … the Court discerns the Will maker’s intended meaning from the Will maker’s expressed intentions; the Court does not seek to discern what the Will maker subjectively intended or meant to say or do when making the Will, but what the Will maker actually said by the words in the Will: Middleton v Schofield [2022] NSWSC 1454 at [17] per Robb J.

55. Specifically, grammatical considerations, sentence structure and common English usage are all matters to which the Court may properly have regard in determining the Will maker’s expressed intentions.

56. Moreover, the exercise of reading the Will as a whole instrument may, in appropriate cases, reveal a scheme which the deceased had conceived for dealing with the estate, which in turn assists in discerning intention: Fell v Fell at 273-274 (the second principle); Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 (Fairbairn) at [19] per Campbell JA (Macfarlan and Young JJA agreeing), citing Powell J in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep) at 14, which passage was approved by Bryson J in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 33.

57. Where the terms of the Will are perfectly clear, searching for the scheme may be of little use, but where the language is obscure or the effects of a literal reading and the reasoning impliedly underlying it are startlingly unlikely, the scheme of dispositions may be very important in construing the Will: Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ.

  1. Particular submissions were directed to what constitutes vesting. I have had regard to the submissions on behalf of Olive and also from Lester’s counsel in that regard.

  2. A practically useful explanation of vesting was addressed by Campbell J in Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [35]-[37].

35. There has been elaborate debate about whether the gift that they were given by clause 5(a)(i) was “vested”, and if so when. But the term “vested” itself is in need of explanation. Its origin was as a Latin-derived metaphor meaning, “clothed”. While it has come to be used in a context of technical legal language, it has not shed the inherent imprecision of metaphor to such an extent that it has precisely the same connotation in all legal contexts.

36. There are some gifts that confer vested rights from the moment of creation, that never cease to be vested – but concerning them there is seldom occasion for any debate or discussion about their being vested. More usually, there is an implicit temporal reference in saying that the subject matter of a particular gift is “vested” – just as clothes can be put on and off, so being “vested” is a quality that the subject matter of a gift can lack at one time but then gain. Conversely, there is a legitimate sense in which the subject matter of a gift can be “vested” at a particular time, even if later events might cause the gift not to take effect or to be cut down in quantum. A gift can be “vested” in either of these senses if at the time that is being spoken about, a particular person has an identifiable right of property concerning the subject matter of the gift.

37. Further, just as there is some clothing that one wears in layers, so that it is possible to be clothed with one layer of the clothing at a time when another layer remains to be added, so sometimes a gift of an item is one that involves a gift of several different rights or potentials to acquire rights concerning that item. Concerning such gifts it is possible for a donee to have (and in that sense be vested with) a particular right at one time, even though it is only later or if some event happens (and maybe never) that the donee will have, or be vested with, some different right concerning the gift. If the gift in question is of that type, an incomplete analysis of the situation might result if one enquired whether at some particular time or times the gift is vested, and tried to answer that enquiry with a simple ”yes” or ”no”.What is needed in that situation is precision about the precise rights concerning that gift that the donee has from time to time.

  1. In this case, whilst the Will bears the hallmarks of preparation by a law firm and review by a solicitor, the reality is that much of language used in the Will was seemingly drafted by the deceased likely using as a precedent some clauses provided by Mr Bracks. It is unclear if those clauses came in part from the March 2015 Will. In any event, the contentious clause, cl 15, was (as I have observed above) drafted by the deceased and not seemingly reviewed (or in any event altered) by the solicitor.

  2. The appropriate approach to construction of Wills that are wholly or substantially ‘home-made’ was the subject of comment by the High Court in Lewis v O’Loughlin (1971) 125 CLR 320; [5] [1971] HCA 53. In summarising the position, Sackar J in Jones v Robinson [2019] NSWSC 932 stated: [6]

    5. See Barwick CJ at 326-327 and Menzies J at 330.

    6. At [43]-[45].

43. In Lewis v O’Loughlin (1971) 125 CLR 320, Barwick CJ considered the construction of a ‘homemade’ will (at 326-327):

The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when constructing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman’s understanding of the situation in which the testatrix then stood. ….

It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evidence, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur…However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled.

44. Menzies J in the same case similarly considered the differences between the construction of a will drawn by the deceased themselves, over that of a lawyer. His Honour noted (at 330):

Discrepancies of this sort have less significance in a home-made will than one drawn by a lawyer.

45. It is therefore tolerably clear that the misuse of language should not too readily defeat the deceased’s otherwise clear intentions.

  1. In Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685 Robb J stated: [7]

Furthermore, ”the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given”: Re Sanford [1901] 1 Ch 939 at 941 (Joyce J). That is particularly so where, as here, the idiosyncratic language of a lay draughtsman has no conceptual connection with any understanding of the law of succession or the terminology of earlier wills that have been considered in the decided cases.

7. At [29].

  1. Much is said in the law regarding “counsel of perfection” in various matters. However, the reality of difficulties in construction, particularly of Wills that are substantially ‘home-made’, needs to be faced.

  2. Sometimes no construction of a clause will reconcile all aspects of its meaning. However, that does not stand in the way of the Court imputing to the disputed clause that which, even if slightly imperfectly, best accords with the effect which the testator is taken to, or likely to have, intended. [8]  

    8. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [37]-[40] per Leeming JA, citing Re Pulbrook; Pulbrook v Pulbrook (1937) 37 SR (NSW) 345 at 351 per Jordan CJ and Clerk v Equity Trustees Executors and Agency Co Ltd (1913) 15 CLR 625 at 632, 633; [1913] HCA 8 per Barton J (see also Griffith CJ at 630).

Scheme of the Will

  1. Leaving aside preliminary provisions by which the deceased revoked prior Wills and appointed executors and trustees, Lester’s counsel suggested that the scheme of the Will for disposition of the deceased’s estate be separated into six parts:

  1. one part comprising four specific legacies of certain items to each of the deceased’s nephews (cll 6(a)-(e));

  2. one part comprising a fund (Fund No. 1) being the proceeds of sale of any Australian real estate, superannuation, auction monies, bank accounts and shares and investments, not exceeding $500,000, to provide for Jimmy’s needs until Jimmy’s death, upon which the rest goes to Fund No. 2 (cll 7-11, 19);

  3. one part comprising 9 cash legacies to various individuals (cl 12);

  4. one part comprising 5 cash legacies to various charitable organisations (cl 13);

  5. one part comprising a fund (Fund No. 2) being the excess of funds utilised to provide an income for the love and care of Jimmy which shall be held in trust exclusively for Jay (cl 14); and

  6. one part comprising a fund (Fund No. 3) being the proceeds of sale of a house in London and villa in Turkey, any other sterling denominated investments, accounts and shares to provide for the changing needs of the deceased’s mother until her death, upon which, subject to certain charities the rest goes to Fund No. 2 (cll 20-24).

  1. Counsel also submit there are three further aspects of the scheme:

  1. clause 15 which provides that Fund No. 2 cannot be liquidated before Jay’s 35th birthday and then only on the provision of good conduct as decided by the deceased’s trustees;

  2. clause 18 which provides that during the duration of Fund No. 2, Jay is entitled to 50% of the trust’s growth on top of the initial capital amount paid out at the end of each financial year; and

  3. clause 28 which provides that Sarah is specifically excluded from obtaining any advantage under the Will.

  1. Whilst I accept that that suggested scheme is one way of analysing the Will, it seems to me that there is another way of characterising the structure of the testamentary dispositions.

  2. Essentially, the broad scheme of the deceased’s Will is that three funds are identified for three main beneficiaries:

  1. provisions relating to fund 1, which fund appears to have been sourced from assets in New South Wales up to a threshold of $500,000 benefiting the needs of Jimmy;

  2. provisions relating to fund 2, comprising the balance of the assets beyond the $500,000 threshold, broadly speaking intended to benefit Jay; and

  3. provisions relating to fund 3, being assets in London and Turkey, benefiting Anne.

  1. The funds that are set up for the benefit of Jimmy (fund 1) and the benefit of Anne (fund 3) are time-limited by their expected deaths. The clauses that bear upon fund 1 provide for monies to be used for the benefit of Jimmy, but upon Jimmy’s death for any excess funds to be held in trust exclusively for Jay and to augment fund 2. Similarly, significant provision is provided for Anne, however, the clause setting up fund number 3 provides for a form of life interest for her with the remainder to augment fund 2, subject to specific carve-outs for charitable purposes.

Submissions

  1. Olive’s counsel ultimately contended in the written submissions:

[26] On its proper construction the Will gave a gift of the residue to Jay, which was vested in him at the date of his death and accordingly no intestacy has arisen under the Will.

  1. A significant part of the submission appeared to have directed analysis to the rule in Saunders v Vautier (1841) Cr & Ph 240; 49 ER 482 and in contrasting the provisions of the Will with the decision of Hallen J in Serwin v Dolso [2020] NSWSC 370.

  2. Lester’s counsel detailed submissions regarding legal principles in respect of presumptions against intestacy, presumptions of early vesting, the absence of discretionary powers of advancement, analysis of contingent gifts and use of the word liquidate in cl 15 and growth in cl 18. Other analysis was directed to the words in the Will being contrasted with words in Arnott v Kiss [2014] NSWSC 1385 (Arnott).

  3. In summary, Lester’s counsel submitted as follows:

  1. The interest of Jay under the deceased’s Will was an immediate vested interest.

  2. There is a presumption against intestacy under the Will of the deceased.

  3. There is no power of advancement of the income or capital for the maintenance of beneficiaries.

  4. The gift is expressed in absolute unqualified terms, being “held in trust exclusively for” Jay.

  5. There is an immediate entitlement not subject to any discretion, in favour of Jay, to “50% of the trust’s growth on top of the initial capital amount paid out at the end of each financial year”, which refers to income and capital gain (whether or not realised). Accordingly, Jay has an immediate entitlement to 50% of the income and capital gain of the trust in each year.

  6. Unlike the Will in Arnott, there is no reference to Jay having to “attain” the age of 35 years in cl 15. The limitation is as to the possible time for “liquidation” of the fund. In any event, the direction in cl 18 to pay out 50% of the growth at the end of each financial year does not provide that it is to be retained and accumulated until Jay attains the age of 35 years. The requirement to pay out that 50% strongly suggests the gift to Jay under the Will conferred an immediate vested interest in both the corpus and income and not a contingent interest.

Determination

  1. Questions of construction are essentially fact-specific and accordingly no case can truly provide any precedent for each new Will that comes before the Court for consideration. [9]

    9. Gibb-Maitland v Perpetual Executors Trustees & Agency Co (WA) Ltd (1947) 74 CLR 579 at 586 per Rich J; [1947] HCA 35.

  2. The ingenuity of counsel in marshalling reference to various cases and legal principles has been of some assistance to me.

  3. However, a precedential approach risks missing or perplexing the deceased’s expressed intention. [10] As I have previously observed, often the assistance of such guides is limited and may be exhausted by simply identifying plausible alternative constructions and so allowing some testing of contender constructions to incline the judge’s mind in any given case toward or against a particular outcome. Thus, ultimately, such guides merely serve to assist judges in the process of determining the proper construction of a Will, as distinct from directing or compelling a particular construction outcome. [11]

    10. Keiley v Fowler (1768) Wilm 298 at 319; (1768) 97 ER 115 at 122 per Wilmot LCJ speaking for the Court of Common Pleas, cited by Isaacs J in Ramsay v Lowther (1912) 16 CLR 1 at 14; [1912] HCA 68; GE Dal Pont, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) at [1.7].

    11. See Boyd v Peeters [2024] NSWSC 1035 at [78].

  4. The wording of cl 15 is far from ideal. However, without resorting to comparison with other cases, it seems to me that the intent of the deceased can be refined by reference to aspects of structure and wording within the Will itself which point towards the gift of residue of the deceased’s estate vesting in Jay upon the deceased’s death, subject to certain deferrals as to possession or receipt of certain of the property.

  5. First, the overall structure of the Will is important. I have set this out above. Broadly speaking, leaving aside the specific legacies, the structure of the Will reveals an intent by the deceased to ultimately benefit Jay. In any event, in the ordinary course of affairs, that intent is consistent with the deceased expecting Jay to outlive both his mother and Jimmy.

  6. Secondly, cl 14, by which the excess funds in cl 1 are to be held exclusively for Jay, does not contain any express deferral of vesting.

  7. Thirdly, the words “cannot be liquidated” in cl 15 are not words generally associated with an absence of immediate vesting, nor do they suggest a deferral of vesting. The use of those words is highly curious. The word “liquidate” is defined by the Macquarie Dictionary (online ed) to include:

  1. to settle or pay (a debt, etc);

  2. to reduce (accounts) to order; determine the amount of (indebtedness or damages); and

  3. to convert into cash.

  1. The Collins Dictionary (online ed), referenced by Lester’s counsel, lists similar meanings.

  2. The context in which the word “liquidated” appears in cl 15 does not obviously bear connection to any of the listed definitions above.

  3. It seems to me that having regard to the scheme of the Will as a whole and the structure of the benefits for Jay, the words “cannot be liquidated” more naturally convey the meaning “cannot be accessed”. The notion of a deferral of receipt or possession of all or part of the capital of gifted funds is distinct from an absence of vesting.

  4. Fourthly, the clauses of the Will which bear upon the benefits for Jay by their tenor disclose purposes other than an outcome that the fund does not vest in Jay until he attained the age of 35. Jay at the time that the Will was made was aged 22. Thus:

  1. to begin with, the reference to “good conduct” in cl 15 to my mind is more consistent with deferral of benefit to encourage ultimate receipt of at least part of the capital of the funds when Jay was more mature rather than immediate receipt of what in any view would have been a substantial benefit in his early 20s (perhaps the deceased thought that Jay in his early 20s might spend money rashly);

  2. the fact that cl 16 envisages that student debt or credit card debt could be settled suggests that substantial capital benefit could be released from the fund for beneficial purposes for Jay;

  3. furthermore, the fact that pursuant to cl 18 the deceased contemplated that Jay would receive or be entitled to 50% of the fund’s growth to be paid out at the end of each financial year strongly suggests a purpose that a tangible benefit be given to Jay albeit by a type of slow release of some capital rather than the entire fund; and

  1. finally, it is clear from cl 28 that the deceased did not wish Sarah to benefit from his estate and would, I infer from those express words, have not wished her to benefit by intestacy.

Conclusion

  1. I determine, on the proper construction of the Will as rectified, that the gift of residue to Jay vested in him at the time of the deceased’s death.

  2. I have reflected on the question of costs. Mr Wallis has attended today and as I have indicated, his attendance today has been of some assistance to the Court in reading additional material. It seems to me that Olive has conducted the proceedings in a manner consistent with the just, quick and cheap resolution of the real issues in the proceedings and in all the circumstances I consider that Olive, as the executrix of the estate should have her costs paid out of the estate calculated on the indemnity basis.

  3. I have been assisted by the submissions from Lester’s counsel and as earlier indicated on the listing on 2 July 2025, I was assisted by Mrs Young’s submissions in relation to the contradictor issue.

  4. Nonetheless, in all the circumstances I do not consider that two sets of indemnity costs should come out of the estate. I consider the proper order is that the second defendant’s costs be paid out of the residue of the estate calculated on the ordinary basis.

  5. The orders of the Court are as follows.

  1. Grants leave to the plaintiff to read the affidavit of John Emmet McDermott sworn 23 September 2022, and the affidavit of Roslyn Daphne Cronin affirmed 16 November 2022 filed in 2021/28971 (i.e. the rectification proceedings) to be read in these proceedings.

  2. Determines 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.

  3. Orders that the costs of the plaintiff be paid out of the estate calculated on the indemnity basis.

  4. Orders that the costs of the second defendant of and incidental to the proceedings be paid out of the residue of the estate on the ordinary basis.

  5. Orders that the summons be otherwise dismissed.

**********

Endnotes

Amendments

29 July 2025 - Coversheet amended


[26] Typographical error amended


[56(6)] "provide of the changing needs" amended to "provide for the changing needs"


[79] "estate on calculated" amended to "estate calculated"

Decision last updated: 29 July 2025

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Cases Citing This Decision

1

Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932
Cases Cited

16

Statutory Material Cited

1

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