August 22, 2017 |

NSW Will Dispute Lawyer makes inappropriate Application to the Court.


Edmonds v Morrissey [2016] NSWSC 342

The Proceedings Commenced in error:

The first application  by the executor asked for the courts “Judicial advice” whereas the correct application related to questions of “construction’. Construction, referring to the meaning of the words in question.

Construction of the will to determine the meaning of the words “issue children” – whether intention to narrow usual meaning of “issue” or whether sufficiently clear that words were used in error when other words must have been intended.

Case Summary:

This is some of what the Judge said;

These proceedings concerned the last will of the will maker who died on 2 July 1948. In particular, the proceedings were concerned with a gift of the will makers real property.

The plaintiff and the first defendant were the trustees under the last will of the will maker dated 28 October 1938. They were grandchildren of the will maker. 

A difference of opinion emerged between the plaintiff and the first defendant as to whether the gift in remainder is shared equally by the plaintiff and the first defendant, or whether it is shared by the plaintiff as to one third, the first defendant as to one third, and the children of Imelda Shiels equally as to the remaining third.

By a Summons filed on 18 May 2015 the plaintiff sought judicial advice in relation to this difference of opinion. The first defendant was then the only defendant. The first defendant (who is 85 years of age) and the plaintiff (who is 77 years of age) took opposing sides. The matter so constituted came on for hearing on 2 November 2015.

When the matter was called on I expressed the view that proceeding by way of a Summons for judicial advice was not appropriate in circumstances where questions of construction were involved, and where not all interested persons or potentially affected persons were made parties to the proceedings or otherwise given an opportunity to be heard. So as not to waste time, the Court received submissions from the plaintiff and the first defendant; directions were later made to facilitate the joinder to the proceedings of the children of Imelda Shiels (Mr Paul Shiels and Mr Peter Shiels) and the giving of notice of the proceedings to the other grandchildren of Thomas Patrick Morrissey. On at least one possible construction, these grandchildren would share in a portion of the gift.

An Amended Summons, which took the form of a construction summons, was filed on 24 November 2015.Paul Shiels and Peter Shiels were added as the second and third defendants respectively. Directions were made for the Amended Summons to be served upon the other grandchildren of Thomas Patrick Morrissey, and for such grandchildren to seek to be joined to the proceedings if they wished. None of them sought to do so. Directions were also made for the filing and serving of written submissions and for the making of any requests for a further oral hearing. Further written submissions were filed and served. All parties were content for the matter to be determined without any further oral hearing.

Court Order:

The court allowed an amended summons to be filed.  

 Eric Butler




doyles STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria


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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
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