Reinhard v Bell - [2015] NSWSC 818

Supreme Court

New South Wales

Medium Neutral Citation: Reinhard v Bell [2015] NSWSC 818
Hearing dates: 1 April 2015
Date of orders: 25 June 2015
Decision date: 25 June 2015
Jurisdiction: Equity Division
Before: Darke J
Decision:
Declaration made as to true construction of gift in will.

Catchwords: SUCCESSION – wills – construction of will – whether clear that error in expression occurred – whether intended expression clear – typographical error – whether “of” should be read as “or”
Legislation Cited: Trustee Act 1925 (NSW) s 63
Cases Cited: Aboud v Aboud [1960] NSWR 498
In re Dayrell; Hastie v Dayrell [1904] 2 Ch 496
Tatham v Huxtable (1950) 81 CLR 639 at 645 and 651
Category: Principal judgment
Parties:
Ian Arthur Reinhard as trustee of the estate of the late William Gotlett Reinhard (first plaintiff)
Warren Reinhard as trustee of the estate of the late William Gotlett Reinhard (second plaintiff)
Maureen Frances Bell (first defendant)
Kenneth William Reinhard (second defendant)
Gary John Reinhard (third defendant)
Murray Frederick Reinhard (fourth defendant)
Lorraine McConnell (fifth defendant)
Robyn Lynette Denkel (sixth defendant)
Bradley John Reinhard (seventh defendant)
Glenn Frances Reinhard (eighth defendant)
Malcolm Graham Trowell (ninth defendant)
John Ricahrd Trowell (tenth defendant)
Janice Kaye Lithgow (eleventh defendant)
Ronald Joseph Reinhard (twelfth defendant)
Ann Elizabeth Gilberthorpe (thirteenth defendant)
Adrian Brett Johnson (fourteenth defendant)
Debbra Ann Bell (fifteenth defendant)
Allan William Bell (sixteenth defendant)
James Herbert Bell (seventeenth defendant)
Andrew Reinhard (eighteenth defendant)
Representation:
Counsel: Ms G Mahony (plaintiffs)
Solicitors: Victoria Ann Baker (plaintiffs)
Burke & Baker Lawyers (first defendant, second defendant, fifteenth defendant, sixteenth defendant, seventeenth defendant, eighteenth defendant)
Hannaford Cox Connellan & McFarland (fifth defendant, sixth defendant, fourteenth defendant)

File Number(s): 2014/235416
Publication restriction: Nil

Judgment

Introduction

This case concerns the will of the late William Gotlett Reinhard. The will was made on 2 May 1925. Mr Reinhard died on 2 January 1929. A grant of probate was made by the Court on 20 March 1929 in respect of the will and a codicil made on 30 January 1928.
The plaintiffs are the present trustees of the trusts under the will. By prayer 1 of their Summons filed on 11 August 2014, the plaintiffs seek judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) with respect to a question of construction of clause 8(b) of the will. The hearing, in respect of prayer 1 only, took place before me on 1 April 2015.
The Summons names eighteen defendants, each of whom is either a surviving grandchild (in the case of the first and second defendants) or a surviving great grandchild (in the case of the third to eighteenth defendants) of the testator.
Ms G Mahony of Counsel appeared for the plaintiffs. Mr W Burke, solicitor, appeared for the first, second and fifteenth to eighteenth defendants. A number of other defendants were present in Court. Three of them addressed the Court to indicate their position or make a submission concerning the issue of construction. These were Ronald Reinhard (the twelfth…

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 Reinhard v Bell

Details

AGLC: Reinhard v Bell [2015] NSWSC 818
Case: [2015] NSWSC 818
Decision Date: 25 June 2015

CaseChat Overview and Summary

The case of Reinhard v Bell involved a dispute over the interpretation of a will. The deceased had left a will which contained a clause that left his property to his children. The clause, however, contained a typographical error, with the word “of” appearing instead of “or”. This created ambiguity in the intended distribution of the estate between the children. The court was tasked with determining whether the error was clear and whether the intended meaning of the will could be ascertained despite the typographical mistake.

The central legal issue was whether the typographical error could be disregarded to give effect to the testator's intentions. The court needed to consider whether the intended meaning of the will was clear enough to override the literal wording that contained the error. This involved assessing the context in which the error appeared and the likelihood that the error was a clerical mistake rather than a reflection of the testator's true intentions.

The court determined that the intended meaning of the will was sufficiently clear despite the typographical error. The judge found that the context and the overall purpose of the will made it evident that the word “or” was intended, rather than “of”. The court held that the testator's intention was to distribute the estate among his children, and the error was simply a clerical mistake. As such, the will should be interpreted to reflect the testator's true intentions, rather than being bound by the literal wording of the document.

The final orders of the court were to admit the will to probate with the correction of the typographical error, allowing the estate to be distributed in accordance with the testator's true intentions.

Orders