Salier v Watson [2014] NSWSC 237

Supreme Court New South Wales

Medium Neutral Citation: Salier v Watson [2014] NSWSC 237 Hearing dates: 12 March 2014 Decision date: 12 March 2014 Before: Pembroke J Decision: See paragraph [20] Catchwords: SUCCESSION - construction of a will - subjective intention of testator - recourse to extrinsic evidence SUCCESSION - difficulty in implementing intention - ancillary steps necessary to give effect to intention Legislation Cited: Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Cases Cited: Fittler v Fittler [2009] NSWSC 291 Hendry v The Perpetual Executors and Trustees Association of Australia (1961) 106 CLR 256 Towns v Wentworth [1858] 14 EK 794; (1858) 11 Moo PC 526 Category: Principal judgment Parties: Gordon Albert Salier - plaintiff Lee Stephen Watson - first defendant Raymond Winston Elyard - second defendant Rhonda Janet MacBeth - third defendant Representation: Counsel: A Hill - for the plaintiff P H Blackburn-Hart SC with F Maghami - for the first defendant M S Willmott SC with M Tibbey - for the second and third defendants Solicitors: Gordon A Salier AM - for the plaintiff Robbins Watson - for the first defendant LC Muriniti & Associates - for the second and third defendants File Number(s): 2013/269294

Judgment 1These are proceedings commenced by Gordon Albert Salier who is a solicitor appointed by order of this court on 20 March 2013 as the administrator of the estate of the late Samuel Winston Elyard. The authority given to Mr Salier is limited to the institution and maintenance of these proceedings relating to the construction of the will dated 2 August 2007 of Samuel Winston Elyard and to do such things necessary in connection therewith. 2The testator died on 23 November 2009. On 18 March 2010 probate of his last will was granted to Denise Susan Watson, his daughter. She was also appointed as the sole executor and trustee of his will. 3Denise Watson died on 4 October 2010, seven months after she was granted probate of her late father's will. At the time of her death his estate had not been fully administered. She died intestate. Pursuant to s 127 of the Succession Act 2006 (NSW) letters of administration of her estate were granted to her son, Lee Watson, on 16 April 2012. 4The will of the testator contained the following relevant provisions. It stated that it was the last will and testament of Samuel Winston Elyard and stated that his address was Unit 1, 163 Ocean Street, Narrabeen. It instructed his trustee to sell at the market price his interest in Unit 1, 163 Ocean Street, Narrabeen, or to use his or her discretion to delay the sale until the market improved. It also devised to his daughter, Denise Watson, all of his interest in property that he described as Unit 2, 163 Ocean Street, Narrabeen.