Basten JA at [1]; Ward JA at [22]; Emmett JA at [84]
Decision:
1.The appeal is allowed. 2.Set aside the declaration made on 29 April 2014. 3.In lieu thereof, declare that, upon the proper construction of cl 6(b) of the Will of Justin Huntley Augustine Callaghan dated 25 August 1994, Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond are the “children” of the said Ailsa Josephine Lamond and entitled to an equal share of the estate referred to therein. 4.Order that the first respondent as trustee and executor of the estate of the late Justin Huntley Augustine Callaghan account to each of Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond for equal 9.76% shares of the residue of the said estate. 5.The appeal costs of the appellants, assessed on an indemnity basis be paid out of the proceeds of sale of the deceased’s retirement village unit. 6.The appeal costs of each of the first and second respondents be paid out of the proceeds of sale of the deceased’s retirement village unit assessed on an indemnity basis but limited to the cost of filing a submitting appearance in each case. 7.There be no variation of the costs orders made by the primary judge in respect of the costs of the proceedings at first instance.
Catchwords:
COSTS – appeal costs - where beneficiary filed submitting appearance but executor actively sought to uphold primary judge’s construction of will – whether executor limited to costs as submitting party - where residuary estate partially distributed – part of estate from which costs to be paid
SUCCESSION – appeal - wills – construction of will – whether ‘children’ included step-children or only natural child – whether subsequent will of beneficiary relevant in construction
WORDS AND PHRASES – one such of her children as shall survive me
[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 Warton v Yeo
Sign in free to access the full text
Details
AGLC
Warton v Yeo [2015] NSWCA 115
Case
[2015] NSWCA 115
Decision Date
CaseChat Overview and Summary
In *Warton v Yeo*, the New South Wales Court of Appeal considered an appeal concerning the construction of a will and the appropriate orders for costs. The primary dispute revolved around the interpretation of the phrase "one such of her children as shall survive me" within the will of Justin Huntley Augustine Callaghan, specifically whether this referred to natural children only or included step-children. The appellants, who were beneficiaries under the will, sought to have the primary judge's declaration set aside and a new declaration made regarding their entitlement.
The Court of Appeal was required to determine the proper construction of clause 6(b) of the will, specifically whether the term "children" encompassed step-children of the beneficiary, Ailsa Josephine Lamond. Additionally, the court had to consider the relevance of a subsequent will made by Ailsa Josephine Lamond to this construction. The appeal also raised questions regarding the appropriate orders for costs, particularly whether an executor actively seeking to uphold a primary judge's construction should be limited to costs as a submitting party, and from which part of the estate those costs should be paid, given that the residuary estate had been partially distributed.
The Court of Appeal allowed the appeal, setting aside the declaration made by the primary judge. It declared that, on the proper construction of the will, Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton, and David John Lamond were the "children" of Ailsa Josephine Lamond and entitled to an equal share of the relevant estate. The court ordered the executor to account to these beneficiaries for equal shares of the residue. Regarding costs, the appellants' appeal costs were ordered to be paid out of the proceeds of sale of the deceased's retirement village unit on an indemnity basis. The first and second respondents' appeal costs were also to be paid from the same source on an indemnity basis, but limited to the cost of filing a submitting appearance. The court made no variation to the costs orders made by the primary judge concerning the proceedings at first instance.
Orders
Orders of the court
1.The appeal is allowed.
2.Set aside the declaration made on 29 April 2014.
3.In lieu thereof, declare that, upon the proper construction of cl 6(b) of the Will of Justin Huntley Augustine Callaghan dated 25 August 1994, Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond are the “children” of the said Ailsa Josephine Lamond and entitled to an equal share of the estate referred to therein.
4.Order that the first respondent as trustee and executor of the estate of the late Justin Huntley Augustine Callaghan account to each of Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond for equal 9.76% shares of the residue of the said estate.
5.The appeal costs of the appellants, assessed on an indemnity basis be paid out of the proceeds of sale of the deceased’s retirement village unit.
6.The appeal costs of each of the first and second respondents be paid out of the proceeds of sale of the deceased’s retirement village unit assessed on an indemnity basis but limited to the cost of filing a submitting appearance in each case.
7.There be no variation of the costs orders made by the primary judge in respect of the costs of the proceedings at first instance.