John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449

Supreme Court New South Wales

Medium Neutral Citation: John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449 Hearing dates: 13 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Jurisdiction: Equity Before: Emmett AJA Decision: The Court:

1. Declares that each of the first two instances of the word "children" in cl 3 of the Will dated 12 October 1998 of Margaret Mary Condon (the "Deceased") means Nicole Hamilton Condon only.

2. Makes no order as to the defendant's costs with the intent that he will bear his own costs of proceedings.

3. Orders that the plaintiff's costs be paid or retained as the case may be from the estate of the Deceased on the indemnity basis.

4. Notes the agreement of the parties that:

a. the defendant acknowledges that he is not an "eligible person" who may apply to the Court for a Family Provision Order in relation to the estate of the Deceased pursuant to Ch 3 of the Succession Act 2006 (NSW); and

b. the defendant covenants that he will not institute any proceedings or make any claims against the estate of the Deceased. Catchwords: SUCCESSION – construction of will – whether references to "children" in will of the deceased include the defendant – proceedings settled between parties – declaration made that references to "children" do not include the defendant Legislation Cited: Succession Act 2006 (NSW), Ch 3 Category: Principal judgment Parties: John Hamilton Condon (Plaintiff) Simon Anthony Tonkin (Defendant) Representation: Counsel: A Stevens (Plaintiff)