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August 24, 2017 |

Two NSW Will Dispute Lawyers argue over the meaning of the words “issue children”

Link:  

Edmonds v Morrissey [2016] NSWSC 342

The Plaintiffs Application:

The plaintiff through her legal team contended the words “issue children” meant children of the deceased and not to include grandchildren. The case was therefore about whether there was intention to narrow the usual meaning of “issue” and whether sufficiently clear words were used or error when other words must have been intended.

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.

My Summary of the Case:

The testator’s will (together with a codicil dated 11 July 1945) deals first with the payment of debts and certain pecuniary legacies out of the personal estate.

The point of construction primarily concerns the meaning of the words “issue children”. Those words appear in the provision that deals with the testator’s real estate.

The question of construction here is primarily focused upon the words “issue children” used in relation to Thomas Patrick Morrissey. meaning of the expression “issue children” used in relation to Thomas Patrick Morrissey, encompasses only children of Thomas Patrick Morrissey.

This is part of what the Judge said;

“In my opinion, the words “issue children” should be construed in accordance with their ordinary meanings, such that they encompass only children of Thomas Patrick Morrissey. On that basis, and in the event that have happened, the gift in remainder of the testator’s real estate is shared equally by the plaintiff and the first defendant as tenants in common. The Court will make a declaration to that effect."

The general principles applicable to the construction of wills may be summarised, for the purposes of this case, as follows. The Court must construe the language of the instrument, read as a whole, in order to determine the testator’s intention. The words of a will are given their usual or ordinary grammatical meaning, unless the context indicates to the contrary, or the ordinary meaning lacks sense. In some instances, it may be clear that words have been employed in error and that other words must have been intended.

My Summary of the Court Order:

The Court made the following orders omitting any referenced to grand children:

That the true construction of the last will of the late John Morrissey dated 28 October 1938, and in the events that have happened, the gift in remainder of the testator’s real estate is shared equally by the plaintiff and the first defendant as tenants in common;

Orders that the costs of the plaintiff and the first defendant be paid out of the trust estate on the indemnity basis; and

Orders that the costs of the second and third defendants be paid out of the trust estate on the ordinary basis.

Eric Butler

doyles Law Society of NSW 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 ,
Sydney NSW 2000
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i (02) 4067 4118

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Melbourne VIC 3000
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Brisbane Brisbane QLD 4000
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