Supreme Court New South Wales Medium Neutral Citation: The Estate of Michael Andrew Kennedy [2019] NSWSC 1144 Hearing dates: 2 September 2019 Date of orders: 02 September 2019 Decision date: 02 September 2019 Jurisdiction: Equity Before: Kunc J Decision: Judicial advice given Catchwords: EQUITY – trusts and trustees – Judicial advice – Residuary beneficiaries misdescribed in will Category: Principal judgment Parties: James Brendan Aubusson (Applicant) Representation: Counsel: P Walsh (Applicant) Solicitors: Church & Grace (Applicant) File Number(s): 2019/149490 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: By summons filed on 13 May 2019 the executor of the estate of the late Michael Andrew Kennedy applies for judicial advice in relation to the administration of that estate. 2. Mr Kennedy died on 4 July 2018. His last will and testament had been made on 15 March 2016. That is the will of which probate was granted to the applicant by this Court on 24 September 2018 (the "Will"). 3. After making certain specific legacies, the Will provided as to the residuary estate: 4. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate to my Trustee UPON TRUST to sell, call-in and convert into money such estate and to stand possessed of such proceeds of sale and conversion as follows: (a) To pay to MARC HERBERT ten percent (10%) thereof. (b) To pay to MARYLIN HERBERT fifteen percent (15%) thereof. (c) To pay to AMANDA LOUISE HERBERT ten percent (10%) thereof. (d) To pay to JESSICA KATE HERBERT ten percent (10%) thereof. (e) To pay to MATTHEW JOHN HERBERT ten percent (10%) thereof. (f) To pay to ERIN JEAN HERBERT ten percent (10%) thereof. (g) To pay to EVELYN WALSH fifteen percent (15%) thereof. (h) To pay to MICHAEL WALSH ten percent (10%) thereof. (i) To pay to the wife of MICHAEL WALSH ten percent (10%) thereof. If any of the foregoing shares should fail then such failed share shall be added to the others equally." 1. An issue has arisen because it appears that three of the residuary beneficiaries have been incorrectly described. This is not an unfamiliar problem. 2. The Court has had the advantage of the advice provided to the applicant by Mr P Walsh of Counsel, who appeared for the applicant today. That advice sets out the relevant facts by incorporating the statement of facts which is before the Court and the applicable legal principles in relation to mis-description of beneficiaries. 3. In this case the position appears to be quite clear. All of the residuary beneficiaries have been notified of today's application and, in particular, as to how the applicant proposes to administer the estate. None of them has objected to the application and none of them has sought to appear today. 4. The material set out in the statement of facts which forms the basis of Mr Walsh's advice demonstrates both the identity of the persons to whom it would appear the deceased intended to refer in the Will, and the fact that no other persons who might otherwise fit those descriptions have been able to be found. 5. In those circumstances, this is an appropriate case for the Court to provide the advice which the applicant seeks rather than to require the applicant to bring an inter partes construction suit. 6. The orders of the Court are as follows: 1. The applicant is justified in administering the will of Michael Andrew Kennedy dated 15 March 2016 on the basis that the reference: 1. in clause 4(a) of the will to "Marc Herbert" is a reference to Anthony Marc Herbert, the husband of the niece (Marilyn Herbert) of the deceased; 2. in clause 4(h) of the will to "Michael Walsh" is a reference to Sean Robert Walsh, the great nephew of the deceased; and 3. in clause 4(i) of the will to "the wife of Michael Walsh" is a reference to Jacqueline Walsh (the wife of Sean Robert Walsh (the great nephew of the deceased)). 1. The applicant's costs of these proceedings be paid from the assets of the estate of the late Michael Andrew Kennedy on the indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2019