Wynbyne v Marshall

In *Wynbyne v Marshall*, Gaudron and Hayne JJ considered a dispute concerning the interpretation of a will. The primary issue before the court was whether a specific bequest of a property was intended to be a gift of the property itself, or a gift of the proceeds of sale of that property. This distinction was crucial for determining the beneficiaries' entitlements under the will.

The court was required to ascertain the testator's intention regarding the disposition of the property. Specifically, it had to determine whether the testator intended the beneficiaries to receive the property directly, or if the executor was empowered and directed to sell the property and distribute the sale proceeds. This involved an analysis of the precise wording of the relevant clause in the will and the surrounding context.

Gaudron and Hayne JJ applied established principles of testamentary construction, emphasizing that the court's paramount duty is to give effect to the testator's intention as expressed in the will. They considered the use of words such as "give and bequeath" in conjunction with directions for sale. The court concluded that the testator's intention was to convert the property into money and distribute that money, rather than to pass the property itself to the beneficiaries. Consequently, the bequest was held to be a gift of the proceeds of sale.