Douglas v James [2015] NSWSC 299

Supreme Court New South Wales

Medium Neutral Citation: Douglas v James [2015] NSWSC 299 Hearing dates: 9 March 2015 Decision date: 25 March 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Plaintiffs entitled to the declaratory relief sought. Cross-summons fails. Catchwords: WILLS & ESTATES - construction of will - testamentary trusts - where the will set up a primary trust for the testator's wife which upon her death would revert to secondary trusts for the testator's four daughters - where the will named the testator's son-in-law as 'Appointor' for the primary trust - nature of the appointor's powers under the will - whether it justified the appointor's purported removal and replacement of two of the original trustees of the primary trust with trustees with himself and his wife - intention of the testator - whether extrinsic evidence sufficient to demonstrate direct instructions or actual intention of the testator - principles of construction - whether words should be read in to the will - whether the requirements to read the document as a whole and to avoid inefficacy provide any basis for the construction contended for by the defendants - whether rectification of will available under the general law Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Hill v James [2004] NSWSC 55 In Re Doland's Will Trusts [1970] Ch 267 James v Hill [2004] NSWCA 301 Jingalong Pty Limited v Todd [2015] NSWCA 7 Osborne v Smith (1960) 105 CLR 153 Rennes v Death [2003] NSWSC 708 Tatham v Huxtable (1950) 81 CLR 639 Texts Cited: Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2015) Category: Principal judgment Parties: Zeta Kathleen Douglas (First Plaintiff / First Cross-Defendant / First Respondent) Marea Gilbert (Second Plaintiff / Second Cross-Defendant / Second Respondent)