Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685

Supreme Court New South Wales

Medium Neutral Citation: Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685 Hearing dates: 13 June 2023 Decision date: 22 June 2023 Jurisdiction: Equity Before: Robb J Decision: The plaintiffs are entitled to an appropriate declaration as to the proper construction of the will to give effect to this judgment: see [71]. In principle, all of the parties' costs should be paid out of the estate of the testator: see [72]. Catchwords: SUCCESSION — construction — conditional gifts — construction of 'home-made' will to determine if gift of real property absolute, or a right of residence with a remainder interest to later named beneficiaries — where language used by lay draughtsman idiosyncratic, but condition not uncertain Legislation Cited: Succession Act 2006 (NSW), s 32 Cases Cited: Allgood v Blake (1873) LR 8 Ex 160 Armstrong v Stokell [2001] TASSC 132 Cobcroft v Bruce [2013] NSWSC 774 Hyde v Holland [2003] NSWSC 733 Jones v Robinson [2019] NSWSC 932 Lassence v Tierney [1843-60] All ER 47 Re Sanford [1901] 1 Ch 939 Ritchie v Magree (1964) 114 CLR 173; [1964] HCA 10 Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48 Towns v Wentworth (1858) 14 ER 794 Warton v Yeo [2015] NSWCA 115 Category: Principal judgment Parties: Cindy Tanya Louise Barnes (First Plaintiff) Paul Frederick Barnes (Second Plaintiff) Vincent Harold Pope in his capacity as administrator of the Estate of Lynette Margaret Hough (Second Defendant) Grahame John Pope in his capacity as administrator of the Estate of Lynette Margaret Hough (Third Defendant) John Leonard Poole in his capacity as administrator of the estate of Russell Garth Hough (Fourth Defendant) Representation: Counsel: S Chapple/D Yazdani (Plaintiffs) S O'Brien (Second and Third Defendants) JL Poole, solicitor (Fourth Defendant)