Warton v Yeo

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.