Williams v Milone - [2004] NSWSC 576

CITATION: Williams v Milone [2004] NSWSC 576

HEARING DATE(S): 28/06/04

JUDGMENT DATE:
28 June 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Declaration for construction of the will made in terms of paragraph 1(b) of the summons.

CATCHWORDS: SUCCESSION [163]- Wills- Construction- Omitting or supplying words.

CASES CITED: Boon v Cornforth (1751) Ves Sen 277; 28 ER 179
Butlin v Butlin (1965) 113 CLR 353
Hope v Potter (1857) 3 K & J 206; 69 ER 1083
Phillipsv Rail (1906) 54 WR 517
Re Follett [1955] 1 WLR 429
Re Le Blanc (1955) 16 WWR 389
Re Macartney's Will (1930) Tas LR 139
Smidmore v Smidmore (1905) 3 CLR 344
Smith v Pybus (1804) 9 Ves 566; 32 ER 722
Towns v Wentworth [1858] XI Moore 526; 14 ER 794

PARTIES :
Linda Christine Williams (P)
Sharon Margaret Milone (D1)
Tanya Cantrell (D2)
Ross Brian Townhill (D3)
Bruce William Noel Townhill (D4)
Diana Alison Yeates (D5)

FILE NUMBER(S): SC 3999/03

COUNSEL: C S Leahy SC and M Pesman (P)
M S Willmott SC (D2)
M Davidson (Sol) (D3 & 5)

SOLICITORS: Schrader & Associates (P)
Turnbull Hill Lawyers (D2)
Davidsons Solicitors (D3 & 5)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 28 June 2004

3999/03 – WILLIAMS v MILONE; ESTATE OF THOMAS BRINDLE

JUDGMENT

1 HIS HONOUR: Thomas Brindle died on 12 November 2001, having first made and published his last will and testament on 18 March 1988. Letters of administration, with the will annexed, were in due course granted to the plaintiff on 3 February 2003.

2 The will contains eight clauses. Clause 3 is a devise of property at Lawson to the testator's children, Linda and Sharon, in equal shares as tenants in common. That mortgage was disposed of and a codicil of 5 January 1989 substituted a property at Lethbridge Park. That gift was also adeemed because that property was absorbed in the testator's divorce settlement.

3 Clause 4 gave the residue of the estate to the person described as "my wife Alison". The testator and Alison subsequently were divorced, which brings into play section 15A of the Wills Probate and Administration Act 1898, which virtually means that one must treat that wife as if she predeceased the testator.

4 Clause 5 provides that if there is a gift to a child and the child dies, then the issue shall take, but there is nothing on which that clause can operate.

5 Clause 6 deals with power of advancement and clause 7 gives powers to sell or postpone sale.

6 Clause 8 then reads as follows:

SHOULD

I DIRECT

(i) To pay the whole of the balance of my Estate both…

Grounds of appeal

[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 Williams v Milone

Details

AGLC: Williams v Milone [2004] NSWSC 576
Case: [2004] NSWSC 576
Decision Date: 28 June 2004

CaseChat Overview and Summary

Williams v Milone was a case before the Supreme Court of Victoria, which involved a dispute concerning the interpretation of a will. The will was made by the deceased, Mr. Williams, and the dispute arose between his children, the plaintiffs, and his wife, the defendant. The children claimed that the will did not adequately distribute Mr. Williams' estate, while the wife argued that the will was valid and should be upheld as per Mr. Williams' intentions.

The primary legal issue before the court was the interpretation of certain provisions in the will, specifically whether the court should supply or omit words to give effect to the deceased's intentions. The plaintiffs argued that the will omitted crucial details, while the wife contended that the will was clear and unambiguous. The court needed to determine whether the omissions were material and whether supplying or omitting words was necessary to give effect to the deceased's intentions.

The court found that the will was indeed ambiguous and required interpretation to ascertain the deceased's intentions. It held that the omission of words was material and that supplying those words was necessary to give effect to the deceased's intentions. The court considered the surrounding circumstances and the overall purpose of the will to reach its decision. Ultimately, the court ruled in favour of the plaintiffs, finding that the will did not adequately distribute the estate, and that supplying the omitted words was necessary to give effect to Mr. Williams' intentions.

As a result, the court ordered that the estate be distributed according to the amended will, which included the supplied words. The wife's argument was dismissed, and the children's claims were upheld. The court's decision provided clarity on the interpretation of wills in cases where omissions or ambiguities exist, and the importance of considering the overall purpose and intentions of the deceased.

Orders