Estate of Grahame David Wright [2016] NSWSC 1779

Supreme Court New South Wales

Medium Neutral Citation: Estate of Grahame David Wright [2016] NSWSC 1779 Hearing dates: 8 December 2016 Date of orders: 08 December 2016 Decision date: 08 December 2016 Jurisdiction: Equity - Probate List Before: Kunc J Decision: Will rectified Catchwords: WILLS, PROBATE AND ADMINISTRATION – Construction – Whether "descendants" and "children" included step-grandchildren – Whether rectification available out of an abundance of caution – Succession Act 2006 (NSW), s 27 Legislation Cited: Succession Act 2006 (NSW) Wills, Probate and Administration Act 1898 (NSW) Cases Cited: Estate of Jack Alexander Warren [2001] NSWSC 104 Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No 2) [2014] NSWSC 1059 Rawack v Spicer [2002] NSWSC 849 Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274; (2010) 3 ASTLR 619 Category: Principal judgment Parties: Lesley McPherson, James Wright and Christopher Kirkwood as Executors of the estate of the late Grahame David Wright (Plaintiffs)

David Charles Wright (First Defendant) Tara Elizabeth Wright (Second Defendant) Representation: Counsel:

T Maltz (Plaintiffs)

Solicitors:

TressCox Lawyers (Plaintiffs) File Number(s): 2016/214511 Publication restriction: No

EX TEMPORE JUDGMENT (REVISED)

Summary 1. The plaintiffs and the first defendant are the executors and trustees of the will of the late Grahame David Wright ("Mr Wright") made on 27 June 2014 (the "Will"). By summons filed on 15 July 2016, the plaintiffs seek declarations as to the proper construction of certain parts of the Will and, if necessary, orders for rectification. 2. The proceedings raise four questions: 1. Whether, upon the proper construction of the Will, references to "descendants" and "children" include Mr Wright's step-grandchildren? 2. Whether an order extending the time for making the present application for rectification under s 27 of the Succession Act 2006 (NSW) (the "Act") should be granted? 3. Whether certain clerical errors in relation to the identity of the trustees of trusts created by the Will should be rectified? 4. Whether the references to "descendants" and "children" in the Will should be rectified to make it clear that they include Mr Wright's step-grandchildren? 1. As a result of directions made by Lindsay J sitting as Probate Judge on 15 August 2016, all persons interested in these questions (including the step-grandchildren) are represented today before the Court. They all agree that the relief sought by the plaintiffs should be granted. That agreement does not relieve the Court of its obligation to be satisfied that the relief, or any other relief, should be granted. 2. The Court notes with gratitude that both the evidence and submissions have been thoroughly prepared and presented by the legal representatives of the plaintiffs. That enables the matter to be dealt with today in relatively short compass. The plaintiffs were represented by Mr T Maltz of Counsel. The defendants appeared for themselves. The brevity with which I propose to deal with the matter is not intended to diminish the assistance which the Court has derived from the careful and compendious submissions that have been presented by counsel.