The Public Trustee of Queensland v Smith

The Public Trustee of Queensland brought an application against Smith, seeking clarification on the interpretation of Hugh Joseph Mackay's will. The will left a residuary estate to be divided among various beneficiaries, including the deceased's great nieces and nephews who survived him and reached the age of 23. The dispute centred on the interpretation of several clauses, including the meaning of the words "as to one part" and "in each case", and the admissibility of extrinsic evidence to aid in the construction of the will. The case was heard in the Queensland Supreme Court.

The court was required to decide several legal issues. The first was whether the ordinary and grammatical meaning of the words in the will was sufficient to resolve the construction of the testamentary dispositions, and whether extrinsic evidence was necessary. The second was whether the class of beneficiaries referred to as "each of my great nieces and nephews who survive me and live to be 23 years" was restricted to persons living at the date of the deceased's death or if it included persons born after the testator's death but before the class closed. The third was whether the deceased's residuary estate was to be divided into six equal parts, with one part passing to each of the beneficiaries named in the will, and the remaining part to be shared equally between the members of the class referred to in the will.

The court held that the ordinary and grammatical meaning of the words in the will was sufficient to resolve the construction of the testamentary dispositions, and extrinsic evidence was not necessary. The court found that the class of beneficiaries referred to in the will was restricted to persons living at the date of the deceased's death, and did not include persons born after the testator's death. The court also held that the deceased's residuary estate was to be divided into six equal parts, with one part passing to each of the beneficiaries named in the will, and the remaining part to be shared equally between the members of the class referred to in the will. The court extended the time for making an application for rectification of the will.

The court declared that upon a proper construction of the will of Hugh Joseph Mackay, the class of beneficiaries referred to in cl 6.02(vi) of that will is comprised of such of the grandchildren of the siblings of the deceased who survive the deceased and attain 23 years of age; includes only persons living at the date of the deceased’s death; and closes when the first beneficiary therein attains the age of 23 years. The court also extended the time for the making of an application for rectification of the will to 18 April 2008. The application by the first to fifth respondents was dismissed, and the costs were to be paid on an indemnity basis from the estate of Hugh Joseph Mackay (deceased).