Thomson v Down

The case of Thomson v Down involves an application for a declaration as to the proper construction of the will of the deceased, Gilbert James Down. The applicant, Helen Doris Kathleen Thomson, seeks clarification on whether the phrase ‘all my children’ in the will includes the three adult children of the testator’s second wife, Rebecca Jan Down. The dispute revolves around the interpretation of this phrase and its impact on the distribution of the testator's estate.

The central legal issue before the court was the interpretation of the phrase ‘all my children’ within the context of the will. The court needed to determine whether this phrase includes the adult children of the testator’s second wife, thereby affecting the distribution of the estate among the beneficiaries. The court also had to consider the testator's intent and the circumstances surrounding the creation of the will, particularly the timing of the testator's second marriage.

The court held that the phrase ‘all my children’ in the will should be interpreted in the context of the testator's intent at the time the will was made. Given that the testator's second marriage occurred approximately three months before the will was executed, the court concluded that the testator's intent was to include the children of this second marriage. Therefore, the court declared that the will directs the executors to sell all the property of the testator and hold that property on trust for Rebecca Jan Down for her life, and upon her death, to hold that property on trust for the specified beneficiaries, including the three adult children of the testator’s second wife.

The court ordered that the costs of the application be paid from the estate of Gilbert James Down on an indemnity basis. This decision clarifies the distribution of the testator's estate and ensures that the testator's intent, as expressed in the will, is faithfully executed.