Williams v Milone [2004] NSWSC 576

New South Wales Supreme Court

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. 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 CASES CITED : 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 Linda Christine Williams (P) Sharon Margaret Milone (D1) PARTIES : Tanya Cantrell (D2) Ross Brian Townhill (D3) Bruce William Noel Townhill (D4) Diana Alison Yeates (D5) FILE NUMBER(S) : SC 3999/03 C S Leahy SC and M Pesman (P) COUNSEL : M S Willmott SC (D2) M Davidson (Sol) (D3 & 5) Schrader & Associates (P) SOLICITORS : 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: "8. SHOULD I die my wife having predeceased me or having died simultaneously with me or not having survived for the period aforesaid and there being none of my direct issue (children or grandchildren) surviving at the date of my death then I DIRECT my Trustees as follows: (i) To pay the whole of the balance of my Estate both real and personal of whatever kind and wheresoever situate after payment thereout of all my just debts, funeral and testamentary expenses including all duties both State and Federal payable upon my Estate equally as to one-half share thereof to my two daughters LINDA CHRISTINE WILLIAMS and SHARON BRINDLE in equal shares as tenants in common and as to the other one-half share of such residuary Estate to DIANA ALISON YEATES, BRUCE WILLIAM NOEL TOWNHILL and ROSS BRIAN TOWNHILL or the survivor of them in equal shares as tenants in common." 7 Although there was a clause 8(i), there was no clause 8(ii). 8 Ms Yeates and the Messrs Townhill were children of the deceased's second wife, he having been married three times and, it would seem, at the time of his death he had a de facto wife. 9 The problem thrown up is that the introductory words of clause 8(i) show the clause only applies if there is no direct issue surviving at the date of the testator's death, yet the benefaction is to the two daughters who, by definition, are direct issue. 10 There are three possible solutions to this problem: