Re Lincoln (No. 2)

This matter concerned an application by the executor of the estate of the late Mr. Lincoln for directions regarding the distribution of the deceased's assets. The executor sought to determine whether certain shares, which had been gifted to the deceased by his late wife, formed part of the deceased's residuary estate or were subject to a specific bequest. The dispute arose due to ambiguity in the wording of the deceased's will.

The central legal issue before Johnston J was the proper construction of the deceased's will, specifically whether the shares gifted by his late wife were intended to be distributed as part of the residue of his estate or were subject to a specific legacy. This required the court to ascertain the testator's intention from the language used in the will, considering the circumstances at the time of its making.

Johnston J applied the principles of testamentary construction, emphasising that the court's primary duty is to give effect to the testator's intention as expressed in the will. His Honour examined the relevant clauses of the will, considering the context of the entire document and the relationship between the specific bequest and the residuary clause. The court determined that the wording of the will indicated an intention for the shares to be treated as part of the residuary estate, rather than a separate specific bequest.

The court accordingly directed that the shares were to be distributed as part of the residuary estate.