Savage v Lunn (As Executor of the Estate of James Lunn)

The New South Wales Court of Appeal heard an appeal concerning a dispute between the appellant, Ms. Savage, and the respondent, Mr. Lunn, as the executor of the estate of the late James Lunn. The core of the disagreement revolved around the interpretation of a clause within Mr. Lunn's will, specifically concerning the distribution of his residuary estate. Ms. Savage contended that she was entitled to a share of the residuary estate, while the executor maintained that the clause in question did not confer such a benefit upon her.

The primary legal issue before the Court of Appeal was whether the phrase "my said wife" as used in the will referred to the testator's then-current wife, or if it could be interpreted to include a former wife, Ms. Savage, who had remarried the testator after a previous divorce. This required the court to consider the principles of testamentary construction, particularly in circumstances where a testator's marital status had changed during their lifetime and the wording of the will might be ambiguous in light of those changes.

The Court of Appeal, in its reasoning, applied established principles of will interpretation, emphasizing the importance of ascertaining the testator's intention from the words used in the will itself, read in light of the surrounding circumstances. The court found that the phrase "my said wife" in the context of the will, particularly when read with other provisions and the testator's subsequent remarriage to Ms. Savage, clearly indicated an intention to refer to Ms. Savage as the beneficiary. The court held that the testator's intention was to benefit the woman who was his wife at the time of his death, and that Ms. Savage, having remarried him, fell within that description. Consequently, the appeal was allowed, and the court ordered that Ms. Savage was entitled to a share of the residuary estate.