Rudge v Link [2008] NSWSC 1104

New South Wales Supreme Court

CITATION : Rudge v Link [2008] NSWSC 1104

HEARING DATE(S) : 29 August; 17 October 2008 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 17 October 2008

DECISION : Will construed.

CATCHWORDS : SUCCESSION [143]- Construction of holograph will and codicil- Proceeds to be "divided between" children A, B, C and D and Mr D- Mr D disclaims- Held four equal shares.

Lisette Maris Rudge (P1) John William Rudge (P2) Michelle Joanna Link (D1) PARTIES : Matthew Phillip Rudge (D2) Chloe Angela Rachel Link (D3) Justin Ronald Gosling (D4) Edward Spring Boyce (D5)

FILE NUMBER(S) : SC 3460/08

J D Smith (P) COUNSEL : No appearance for D1, D2 and D4 A Radojev (D3) V McWilliam (D5 - unborn grandchildren)

N W Aussel (P) SOLICITORS : Eakin McCaffery Cox (D3) Hunt & Hunt (D5)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 17 October 2008

3460/08 – RUDGE v LINK JUDGMENT 1 HIS HONOUR: These proceedings arise out of the holograph will made by the late Anna Elizabeth Rudge who died on 24 August 2007. Probate of her last will, which she made and published on 13 February 1999 with a codicil on 21 August 2004, was granted to the executors named therein on 17 December 2007. 2 As is, unfortunately, the case with many holograph wills, although it doubtless made full and proper sense to the testatrix, when one looks at it objectively, there are ambiguities in it and accordingly the executors, the plaintiffs in the proceedings, need to approach the court because two of the potential beneficiaries are under the age of eighteen years and there may be on a possible construction of the will further unborn beneficiaries. 3 Accordingly, even though one possible beneficiary has disclaimed and two did not appear, it has been necessary to get the opinions of three learned counsel as to the proper meaning of the will. It is comforting to me to know that all three learned counsel agree that, despite the ambiguities, the proper construction of the will is tolerably plain. Accordingly, the case has been able to be dealt with fairly quickly. 4 I should note that originally the case was listed before me on 29 August 2008, however, the suit was then deficient because it did not include the potential beneficiaries. Because a person is only bound by an order of this court if he or she is a party, it is necessary in will construction cases to have as parties all persons who may be affected so that they have the opportunity of putting before the court their point of view. However, it is customary that all people in the same interest be represented by one of them in order to save costs. That has now happened and all relevant parties are before the court. 5 The will provides as follows: "I give, devise and bequeath my house at … Longueville to be sold and the proceeds divided between Lisette; John; Matthew Rudge and my daughter Michelle Link and her husband John. My shares in BHP to Lisette Maris Rudge. " " " Rio Tinto Ltd, John William Rudge. " " " Fosters Brewing Group Ltd to Matthew Phillip Rudge. My other shares to be used as a trust A/C for educational purposes by my children and grand-children. I bequeath my car ... to my son Matthew. I bequeath to my grandchildren the sum of $2,000 to be in trust until they attain the age of 18 years. Annabelle Martin; Sean Martin; Chloe Link; Kaitlin Link, Bill Ormonde. I bequeath to Sandra ... the sum of $1,000. The residue of my estate I request all accounts; burial; duties, be used and the balance shares; credit union; fixed deposits to be used as a trust A/C bank A/C also to be included." 6 The codicil of 21 August 2004, again a holograph testamentary instrument, says simply this: "I, Anna Elizabeth Rudge, … Longueville, wish to alter my will dated 13 February 1999. Share allocation",