Kean v Murphy [2012] NSWSC 948

Supreme Court New South Wales

Medium Neutral Citation: Kean v Murphy [2012] NSWSC 948 Hearing dates: 16 August 2012 Decision date: 21 August 2012 Jurisdiction: Equity Division Before: Ball J Decision: See paragraph 30 of this judgment. Catchwords: WILLS - construction and effect - general principles of construction - court should give words their ordinary meaning in the context of the will - whether ordinary meaning should be departed from because arguably inconsistent with the "basic scheme" of the will - admissibility of evidence of intention of the deceased. Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Gale v Gale (1914) 18 CLR 560 King v Perpetual Trustee Co Ltd (1953) 94 CLR 70 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Re McPherson, deceased [1968] VR 368 Category: Principal judgment Parties: John Warwick Kean (Plaintiff) Paul Alan Murphy (First Defendant) Marita Murphy (Second Defendant) Representation: Ms JAD Needham SC (Plaintiff) SC Fisher (First Defendant) In Person (Second Defendant) Osbornes Lawyers (Plaintiffs) In Person (First Defendant) In Person (Second Defendant) File Number(s): 2012/88474

Judgment

Introduction 1These proceedings concern the correct construction of the will of the late Sister Eileen Kean who died on 9 July 2011 at the age of 94. 2Before dealing with the issues in the case, something should be said about the parties. The plaintiff, John Warwick Kean, is one of Sister Eileen's nephews and is a beneficiary under the will. The first defendant, Paul Alan Murphy, was appointed executor of the will. He is also a nephew of Sister Eileen and one of the beneficiaries. He is a cousin of the plaintiff. Originally, the first defendant filed a submitting appearance. As a result, the second defendant, Marita Murphy, who is also a beneficiary and a sister of the first defendant, was joined as a defendant. 3At the hearing of the matter, Mr Fisher appeared for the first defendant and sought leave to withdraw the first defendant's submitting appearance. The second defendant appeared for herself. I gave the leave sought by the first defendant. In those circumstances, there was no reason for the second defendant to continue to be a party to the proceedings. However, no application was made either by the plaintiff or second defendant in that regard and the second defendant limited her role in the proceedings to making short submissions at the end of the case.