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[2025] NSWSC 1240
General information, not legal advice.
Supreme Court of NSW
2025-10-21
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Goodman v Bryant [2025] NSWSC 1240
Hearing dates: 16 October 2025
Date of orders: 21 October 2025
Decision date: 21 October 2025
Jurisdiction: Equity - Family Provision List
Before: Meek J
Decision: Determination that the deceased’s sole grandchild (second defendant) has an entitlement in the deceased’s estate which is vested interest, though not yet in possession.
Catchwords: SUCCESSION — Will construction — Deceased by her Will gives whole of her estate to be held on trust and divided equally amongst her grandchildren “as survive me and attain the age of [25]” — Clause providing estate given to 2 named charities “if no grandchild of mine survives me and attains a vested interest” — Dispute regarding when the interest vests — Determined that interest vested upon deceased’s death
SUCCESSION — Will construction — General principles discussed
SUCCESSION — Will construction — Vesting in interest and vesting in possession explained — Presumptions regarding vesting discussed — Presumption of early vesting has not been subject to desuetude
SOLICITORS — Practice — Record keeping—Encouragement for solicitors who destroy files after certain period of time to consider a practice of creating and preserving a digital archive of Will files
SOLICITORS — Practice — Will drafting —Encouragement for solicitors in drafting Wills to clarify testator’s intentions regarding when a gifted interest vests, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’
CONSTRUCTION — ‘Surplusage’ rule — Exceptions — Accepting prima facie all words should be given some meaning, sometimes the use of words which are not strictly necessary are included to emphasise intention
WORDS & PHRASES — desuetude
Legislation Cited: Civil Procedure Act 2005 (NSW)
NextSense Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Arnott v Kiss [2014] NSWSC 1385
Austin v Wells [2008] NSWSC 1266
Commissioner of Payroll Tax (NSW) v RG Elsegood & Co Pty Ltd [1983] 1 NSWLR 223
Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep: BC8601222)
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
Duffield v Duffield (1829) 1 Dow & Cl 268; 6 ER 525
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681
Estate of the late John Curry Doherty Hamilton [2025] NSWSC 932
Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Hamersley v Newton (2005) WAR 568; [2005] WASC 221
Harris v Ashdown (1985) 3 NSWLR 193
Hickling v Fair [1899] AC 15
Hume v Perpetual Trustees Executors & Agency Co of Tasmania Ltd (1939) 62 CLR 242; [1939] HCA 10
In re Sinclair [1935] SASR 419
Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] 1 All ER 667
Leake v Robinson (1817) 2 Mer 363; 35 ER 979
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Napper v Miller [2003] NSWSC 376; (2003) 11 BPR 21,175
Parker v Tootal (1865) LR 1 Exch 41
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Perrin v Morgan [1943] AC 399
Public Trustee v Bennett [2004] NSWSC 955
Re Boden; Boden v Boden [1907] 1 Ch 132
Re Deighton’s Settled Estates (1876) 2 Ch D 783
Re Tompson [1947] VLR 60
Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482
Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48
Wiegele v Thomson [2019] WASC 12
Will of Zimmermann (deceased) [1999] QSC 15
Wyatt v Perpetual Trustee Co Ltd (1917) 23 CLR 14; [1917] HCA 16
Texts Cited: Dal Pont, G E, Interpretation of Testamentary Documents (2nd ed, 2025, LexisNexis Butterworths)
Haines QC, David M, Construction of Wills in Australia (2007, LexisNexis Butterworths)
Health Services (Sydney Children’s Hospitals Network (Randwick and Westmead)) Order 2010 (NSW)
Hockley, John, Construction of Wills in Australia (2nd ed, 2025, LexisNexis Butterworths)
Macquarie Dictionary, online ed
NASA, “Eclipses during 2009” (Web Page) (see endnotes for accessible link)
Category: Principal judgment
Parties: Christopher Goodman / Plaintiff
Gordon Bryant / First Defendant
Luke Goodman / Second Defendant
NextSense / Third Defendant
The Sydney Children’s Hospitals Network / Fourth Defendant
Representation: Counsel:
N Bilinsky / Plaintiff
J Brown with E Elliott / First Defendant
Solicitors:
Shaun Cockle Legal / Plaintiff
F.C. Bryant Solicitors / First Defendant
File Number(s): 2025/00068573
HIS HONOUR: A penumbral lunar eclipse occurred on 6 August 2009, [1] the same day Diane Goodman (deceased) made her last Will. Unlike the eclipse which merely lasted for a few hours and caused only slight dimming of the moon, clarity of the surrounding circumstances which led the deceased to make the Will in the form that she did remain shrouded in darkness, with only the barest details known to the Court.
Construction of the deceased’s Will is disputed and its true construction is the separate question for determination. The plaintiff (Christopher) is the deceased’s only known child. The first defendant (Mr Bryant) is the executor of the Will.
Notwithstanding the lack of detail, there are, in my estimation, just sufficient shards of light which have enabled discernment of the deceased’s intention. Ultimately, I have determined that, properly contextualised and construed, the deceased’s sole grandchild and second defendant (Luke) has an entitlement in the deceased’s estate which is a vested interest, though not yet in possession.
As will be seen below, the deceased by her Will gives the whole of her estate to her trustees to hold on trust and to divide “equally amongst such of [her] grandchildren… as survive [her] and attain the age of Twenty-five (25)”. If no grandchild “survives [her] and attains a vested interest” then the estate is given equally to the Royal NSW Institute for Deaf and Blind Children (now known as NextSense) [2] and the Royal Alexandra Hospital for Children (now known as Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) [3] (SCHN)) (together charities). Those charities are the third and fourth defendants respectively.
The specific relief sought in an amended summons is: [4]
A declaration that, on the proper construction of the Will of the deceased dated 6 August 2009, Luke Christopher Goodman (being the only child of the Plaintiff and the only surviving grandchild of the deceased) has attained a vested legal interest in the whole of the estate of the deceased, with his entitlement to possession of such interest being merely postponed until he attains the age of 25 years.
On the hearing of the matter, Mr Bilinksy of counsel appeared on behalf of Christopher and Mr Brown of counsel appeared with Mr Elliott [5] on behalf of Mr Bryant.
Each of NextSense and SCHN have been served with the amended summons. [6] In the absence of those charities taking any active role in respect of the hearing, Mr Bryant has acted as a contradictor to Christopher’s contentions regarding the true construction of the Will. [7]
Mr Brown provided a Court Book (CB) and each of the counsel provided submissions which I will respectively refer to as being ‘PS’ and ‘DS’.
The evidence was limited. At a pre-hearing listing, Mr Bilinksy indicated that he would simply rely upon the Will. Mr Brown relied on the grant of probate and a few paragraphs from a number of affidavits from each of Christopher, Luke, Mr Bryant and James Williams (a solicitor in Mr Bryant’s office). [8]
Mr Bryant, subsequent to being granted probate, conducted a thorough search of his office to locate the 2009 Will file for the deceased, but was unable to locate it. He believes it was likely destroyed after being archived for 7 years from 2009.
There is no specific occasion for me to comment upon the circumstances which have led to the absence of the Will file being before the Court. It suffices to observe that Will files may contain important contextual information.
Accordingly, solicitors who have a system for destroying files after a certain period should consider creating and preserving digital archives of Will files. Such retention may prevent costly disputes concerning construction, context or rectification.
Lord Hoffman notably said, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre”. [9]
However, the confinement of the evidence adduced as to surrounding circumstances of the making of the Will to essentially the fact that the Will was made before a solicitor and that Christopher and Luke were respectively the only child and grandchild of the deceased, left an impoverished context for construing the Will.
Concerned as I was to understand if there were further surrounding circumstances, I raised with counsel certain other factual matters that I had gleaned from materials and the file, which appeared not to be seriously in dispute but nonetheless augmented the constituent surrounding circumstances to the Will. Neither counsel indicated that there was any basis for disputing the matters that I have raised. Accordingly, I have incorporated that material in setting out the facts below. [10]
The deceased was born in Parramatta in January 1945, the final year of the Second World War.
Her parents were Florence Beryl Goodman (nee Beaumont) (Florence) and William Richard Goodman (Willia****m). Other than the fact that the deceased was born at Parramatta, there was no detail before the Court of her upbringing prior to the birth of Christopher in December 1974.
It seems the deceased did not marry. At the time of Christopher’s birth, she lived in a property at Randwick, being the residence of her mother. There is no suggestion that William was living with them at the time and it may be that he had either predeceased Florence or separated from her.
Christopher contends that he is unaware of who his father is and, at least for the purposes of this application, there is no detail which discloses that. The exact nature of Christopher’s upbringing is the subject of dispute. It is not necessary to detail the dispute, other than to observe that, in July 2019, he made a statement to the New South Wales Police alleging that from the age of about 5.5 to 6 years old (i.e. from about June/July 1980 to December 1980) his mother, the deceased, abused him, sexually and physically. His allegations of sexual abuse span approximately an 11.5-year period through to December 1991.
On 12 September 1983, Florence (who had lived with the deceased and Christopher) passed away.
In August 1995, a number of months before his 21st birthday, Christopher was attested as a probationary officer in the New South Wales Police and appears to have at that point or shortly after, ceased to live in the Randwick property with the deceased.
In November 1998, Christopher formed a relationship with a lady named Larrisa, whom he married in 2004. Christopher’s only child, and the deceased’s only grandchild, Luke, was born in December 2005. [11] Subsequently, Christopher separated from Larissa and appears in or about 2017 to have had some form of property settlement with her.
In or about March 2020, it seems that the deceased showed signs of declining mental capacity. What happened regarding the management of her affairs is not entirely clear. However, there is some material suggestive that she may have been subject to a financial management order in which the New South Wales Trustee and Guardian (NSWTG) was appointed as financial manager. There is reference to the fact that on or about 2 November 2021 the Randwick property was sold. At some point, I assume, consequent upon sale of that property or perhaps generally proximate to it, the deceased was moved to reside at the Milford House Nursing Home in Randwick where she lived her remaining days until her death on 2 March 2024.
The above detail explains the absence of the Randwick property from being an asset of the deceased’s estate and the inclusion of a nursing home bond as an asset.
According to the inventory of property attached to the grant of probate, the deceased’s estate comprised the following assets:
Nursing Home Bond $200,000;
NSWTG Trust Account $3,657,481.33;
St George Bank account number one $288.63;
St George Bank account number two $201.06;
Total $3,857,971.02.
1. l REVOKE all former testamentary dispositions
- I APPOINT as my executors GORDON JEFFREY BRYANT and KENNETH CHARLES TH****OMAS practising as F C BRYANT THOMAS & CO SOLICITORS; They and any trustees hereof for the timebeing are included in the expression “my trustees” in this Will.
- I GIVE the whole of my estate to my trustees to hold same on trust and to divide same equally amongst such of my grandchildren (being the issue of my son CHRISTOPHER JOHN GOODMAN) as survive me and attain the age of Twenty-five (25) years.
4. IF no grandchild of mine survives me and attains a vested interest then I GIVE my estate equally to the ROYAL NSW INSTITUTE FOR DEAF AND BLIND CHILDREN and the ROYAL ALEXANDRA HOSPITAL FOR CHILDREN and I DECLARE that the receipt of the Chief Executor Officer of those organisations shall be a sufficient discharge to my trustees for any benefit payable. If either of the two said organisations should not be in existence as at the date of my death my trustees shall, in their discretion, give the share of such discontinued organisation to a charity that has the same or similar objects.
5 I have not made provision for my said son CHRISTOPHER JOHN GOODMAN because he has received the benefit of another inheritance from our family and is in a sound financial position.
6. ANY of my executors who practises a profession shall be entitled to be paid fees for work done by him or his firm on the same basis as if he were not one of my executors but employed to act on behalf of my executors and shall be entitled to apply to the Court for commission for his pains and trouble in addition.
7. MY trustees shall have power in their absolute discretion to apply the whole or any part of the income and of the capital of the expectant, contingent or vested share of any beneficiary towards the maintenance education or advancement or otherwise for the benefit of that beneficiary and to pay any amount so applied to the parent or parents or guardian or guardians for the time being of that beneficiary without being bound to see further to its application.
On 10 July 2024, the other executor appointed under the Will, Kenneth Charles Thomas, renounced probate.
On 25 July 2024, Mr Bryant filed his application for probate. It was supported by a number of usual documents.
On 21 August 2024, a requisition was raised regarding the deceased’s capacity consequent upon a notation in the death certificate that one of the causes of death was intellectual disability “years”.
On 7 November 2024, the requisition was answered by Mr Bryant providing a letter from the deceased’s general practitioner, Dr Peter Holloway, indicating that he had initially met the deceased on 5 October 2017. In or around 27 March 2020, Dr Holloway says the deceased began showing signs of decline in her capacity. He performed an MMSE (scored 27/30), gave her a prescription for olanzapine and referred her to an acute care team on 30 March 2020.
On 16 January 2025, a grant of probate was issued to Mr Bryant.
On 20 February 2025, Christopher filed the summons in these proceedings, seeking family provision relief. Mr Bryant filed a Notice of Appearance and, on 3 April 2025, there was a first listing before Registrar Gerritsen who made directions for provision of evidence (but no affidavit in reply by Mr Bryant) and referred the matter for a mediation on or before 13 June 2025.
On 3 June 2025, the mediation took place. The mediation did not result in an agreed outcome as between Mr Bryant and Christopher, although an outcome between Luke and Christopher was proposed.
As best I can detect, by this stage, there had not been any specific issue raised as to the true construction of the deceased’s Will. This was notwithstanding that the mediation occurred some 2.25 years after the deceased’s death.
On 23 June 2025, Christopher filed a Notice of Motion seeking orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) in accordance with consent orders made at the mediation. The Notice of Motion was supported by an affidavit from Luke sworn 23 June 2025.
On 19 June 2025, James Williams, in a letter to Christopher’s solicitor, Shaun Cockle, indicated that the evidence of Christopher raises the possibility that the deceased had other children. [12] Certificate evidence available to the Court [13] indicates that the deceased is registered as the parent of Christopher only and no other children.
On 25 June 2025, seemingly consequent upon the filing of that Notice of Motion, a court listing for 26 June 2025 was vacated and the matter was stood over to 3 July 2025.
On 3 July 2025, the Acting Registrar made orders that the defendant file any evidence in reply on the Notice of Motion and the matter was stood over to 31 July 2025.
On 29 July 2025, Mr Bryant filed an affidavit in which he raised, seemingly for the first time, contentions regarding whether Luke had an entitlement which was vested in interest in the deceased’s estate.
On 31 July 2025, Registrar Gerritsen directed the parties to serve outlines of submissions and stood the matter over to 28 August 2025 to the intent that, if the matter was then ready, there would be a referral for the hearing of the Notice of Motion.
On 26 August 2025, Mr Bryant filed a summons in separate proceedings (2025/00327463) naming Christopher as a defendant and seeking both interim and final relief. In respect of the final relief, he sought judicial advice in respect of the proper construction of the Will and settlement of the family provision proceedings.
On 11 September 2025, Christopher’s Notice of Motion was referred to me for hearing. It is not necessary for me to detail certain of the exchanges that occurred on that occasion. It suffices to say that Mr Elliott who appeared for Mr Bryant opposed the motion and tendered a copy of reasons for judgment of Mahony SC DCJ delivered on 15 March 2024. Mr Elliott contended that it relevantly gave a basis for Mr Bryant to not readily agree to the proposed settlement of the family provision proceedings, but seek advice in respect of construction of the Will and settlement of the family provision claim. The following details emerged from the judgment, which details are not the subject of any real dispute.
In law, construction is the process of ascertaining the meaning of a written document: Macquarie Dictionary, online ed.
There is only one true construction of any legal instrument, including a Will. [14]
The object of construction of a Will is to give effect to what the Will-maker intended by the words he or she used, having regard to admissible extrinsic evidence. [15]
The whole Will must be read before finally arriving at an opinion as to the meaning of any controverted portion. [16]
One of a number of analytical or constructive tools to discern the deceased’s intention [17] is the task of searching for and considering any ‘scheme’, [18] ‘plan’ [19] or ‘general arrangement’ [20] in a testator’s dispositions of property.
Ultimately, the Court does not proceed upon any decisive effect of an apparent rule of construction or upon analogies from decided cases but rather upon a proper understanding of the testator’s intention. [21]
1. settled or secured in the possession of a person or persons, as a complete or fixed right, an interest sometimes possessory, sometimes future, which has substance because of its relative certainty.
2. clothed or robed, especially in ecclesiastical vestments: a vested choir.
Depending on the source of the use of the word (whether statutory or in an instrument etc) and context, the term may take on a specific meaning.
Broadly speaking, particularly in Will construction or trust law, the term is used in this first primary sense of attempting to understand whether a beneficiary or potential object of a favourable exercise of discretion by a trustee has an interest in property which is secure.
Courts and lawyers usually also address further enquiries, being when the security regarding an interest arises and how secure that interest is, relating to the second meaning of ‘vested’.
This second aspect is very helpfully explained by Campbell JA in Fairbairn:
- There has been elaborate debate about whether the gift that they were given by clause 5(a)(i) was ”vested”, and if so when. But the term ”vested” itself is in need of explanation. Its origin was as a Latin-derived metaphor meaning, “clothed”. While it has come to be used in a context of technical legal language, it has not shed the inherent imprecision of metaphor to such an extent that it has precisely the same connotation in all legal contexts.
- There are some gifts that confer vested rights from the moment of creation, that never cease to be vested – but concerning them there is seldom occasion for any debate or discussion about their being vested. More usually, there is an implicit temporal reference in saying that the subject matter of a particular gift is “vested” – just as clothes can be put on and off, so being “vested” is a quality that the subject matter of a gift can lack at one time but then gain. Conversely, there is a legitimate sense in which the subject matter of a gift can be “vested” at a particular time, even if later events might cause the gift not to take effect or to be cut down in quantum. A gift can be “vested” in either of these senses if at the time that is being spoken about, a particular person has an identifiable right of property concerning the subject matter of the gift.
- Further, just as there is some clothing that one wears in layers, so that it is possible to be clothed with one layer of the clothing at a time when another layer remains to be added, so sometimes a gift of an item is one that involves a gift of several different rights or potentials to acquire rights concerning that item. Concerning such gifts it is possible for a donee to have (and in that sense be vested with) a particular right at one time, even though it is only later or if some event happens (and maybe never) that the donee will have, or be vested with, some different right concerning the gift. If the gift in question is of that type, an incomplete analysis of the situation might result if one enquired whether at some particular time or times the gift is vested, and tried to answer that enquiry with a simple “yes” or “no”. What is needed in that situation is precision about the precise rights concerning that gift that the donee has from time to time.
Some gifts confer vested rights from the moment of creation, whilst others may be subject to contingencies or the fulfilment of certain conditions.
‘Vesting’ terminology varies. However, for present purposes, there are distinctions between: (a) a gift that is said to be ‘vested’ in interest and possession, such that the beneficiary has an immediate indefeasible right to the interest and enjoyment of it; (b) a gift that is said to be ‘vested’ in interest but not in possession, such that the beneficiary has an immediate indefeasible right to the interest, but no immediate enjoyment of it, enjoyment being deferred for some period of time; and (c) a gift that is said to be ‘contingent’ or ‘conditional’ such that the beneficiary has no right to the interest but may, subject to the contingency or condition, become entitled to the interest and enjoyment of it. [22]
It would not be an overstatement to say that issues regarding when a gift has vested are legion in the law and are one of the most litigated questions in Will construction cases. Leading Australian texts dealing with the construction of Wills devote significant comment to the vesting of interests: e.g. David M Haines QC, Construction of Wills in Australia (2007, LexisNexis Butterworths) (Haines) Chapter 29; John Hockley, Construction of Wills in Australia (2nd ed, 2025, LexisNexis Butterworths) (Hockley) Chapter 31; G E Dal Pont, Interpretation of Testamentary Documents (2nd ed, 2025, LexisNexis Butterworths) (Dal Pont) Chapter 14.
There are certain principles and presumptions, legal (statutory and caselaw based), linguistic and grammatical, which are either mandated or advisory for a judge in construing a Will. [23] Counsel have referred to certain presumptions regarding vesting, appearing from texts and caselaw.
Without purporting to be exhaustive or to analyse the specific application of presumptions at this point, the following may be noted:
where there is doubt as to the date or time of vesting, courts tend to lean towards a construction that a gift vests at the earliest date which is possible in accordance with the words of the Will rather than it remain in suspense; [24]
such is the law’s general inclination against postponed vesting in interest that it has been said that little indication on the part of the testator is enough to overcome the prima facie meaning of limiting words used, [25] thus words which at first blush might sound in contingency may in context effect a vested interest; [26]
the Court will not readily infer deferred vesting where such construction would produce remarkable or unusual [27] or strange [28] consequences, particularly where the alternative construction advanced would yield a vested interest with only possession or enjoyment postponed. [29]
In consideration of these circumstances, the Judges, from the earliest times, were always inclined to decide that estates devised were vested; and it has long been an established rule for the guidance of the Courts of Westminster, in construing devises, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so. clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstances occasioning the doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. To accomplish this purpose, a distinction has been made between the adverbs if and when, to which the learned of our language, not in the profession of the law, would perhaps not agree: upon this distinction, however, many equitable arrangements of property have been made; upon this distinction the titles of many estates depend; and it will, therefore, be the duty of the Judges to observe it.
The notion that absence of recent citing of legal authority might per se give reason to doubt the efficacy of the authority or principle is curious.
‘D**ésuétude’ is the notion or simply a state of affairs whereby certain legal principles are regarded as being lapsed or unenforceable by passing of considerable time.
It is one thing to point to isolated historic and possibly dubious authority and contend that, by dint of dé**suétude, it may be ignored.
It is quite another thing to suggest that authority that has been approved or referred to with apparent approval by the High Court can be so readily ignored. The abovementioned passage in Duffield has been cited by Starke J in the High Court in Hume [38] and cited more recently by the NSW Court of Appeal in 2010 in Fairbairn. [39]
Principles derived from case law or otherwise approved either expressly or impliedly by the High Court [40] or the Court of Appeal should not be thought as being readily subject to désuétude.
Christopher, (in evidence in support of his family provision claim) describes his relationship with the deceased as having been “very turbulent, difficult and a largely unhappy one”. It is not necessary for me on this application to make any specific determination regarding that.
In 2008, Christopher, having moved to live in Bourke with Larissa and Luke, invited the deceased to visit, which she did. [41] Without making any specific finding regarding the matter, I simply observe that from Christopher’s perspective, the visit did not go well. His mother stayed one night and he indicates that that is the last time that he saw his mother.
Precisely what occurred at that visit may be the subject of dispute. However, Christopher’s contention regarding the matter and relevantly that it is the last time that he saw his mother is at least consistent with the notion, relayed to Mr Bryant by the deceased, that his relationship with the deceased was “difficult”.
In or around late July or early August 2009, the deceased attended upon Mr Bryant, then a legal practitioner with the firm F.C. Bryant Thomas & Co at Rockdale, and gave him instructions to draw a Will. Little detail has been able to be provided to the Court regarding the circumstances of the making of the Will.
Mr Bryant, states as follows:
2. The deceased was a regular and long-term client of our firm.
..
4. In my attendance on the deceased I formed the view that she was clear in her understanding of what property she owned in particular her home [in Randwick].
5. She also appeared to be clear as to her family relations in particular to her only child Christopher Goodman. She instructed me that she wanted to leave her estate to her grandchildren and not to her son Christopher. She explained this by saying “He has already received an inheritance from our family and he doesn’t need it”. She did refer to her relationship with her son Christopher saying that it was difficult.
6. I prepared the Will in accordance with her instructions. She attended at our office and signed the Will on 9 August 2009. I was present when she read through the Will with me so I could check her instructions. I did not witness the deceased’s signature on the Will as I was named as an executor. Her signature was witnessed by Trudy Eggins and Margaret Carpenter, two of our legal secretaries employed at that time by our firm.
7. From observations of the deceased I was certain that she understood the legal effect of the Will and I had no reason to question her capacity in that regard.
At the time the deceased made the Will, she was aged 64 and Luke was aged 3.
The reason that the deceased gives in cl 5 of the Will for not making provision for Christopher is not because she indicates she had a poor relationship with him at that time. Rather, the specified reason for making no provision for Christopher is that he has received another inheritance from “our family” and “is in a sound financial position”. Counsel were unable to shed light on what that ‘inheritance’ was.
On 26 August 2009, it appears that approximately 3 weeks later, the deceased made a power of attorney with Mr Bryant. No details are provided as to who was appointed as attorney.
The extent of the deceased’s assets at the time she made her Will is unclear. I infer (and this does not appear to be contested) that the deceased at least had inherited the Randwick property from her mother.
Mr Bilinsky made helpful submissions addressing relevant principles [42] and the construction of the Will. He contends that Luke’s rights under cl 3 of the Will have vested in interest and should not be viewed as conditional upon the satisfaction of a contingency such that: (a) the executor/trustee of the estate holds the interest until such time as Luke reaches 25, at which point, he is entitled to come into possession of his interest; and (b) Luke is able to deal with that interest, including, for example, compromising that interest. [43] In particular, he submitted that:
prima facie, the word ‘vested’ means vested in interest as opposed to vested in possession; [44]
the presumption of early vesting is particularly strong where, contingency on survival to a specified age would deprive the grandchild’s own issue of any benefit under the Will if he were to die before the specified age and leave behind a family; [45]
this construction is consonant with the presumption of early vesting and is supported by the succeeding clause of the Will, cl 4, which says nothing about Luke’s entitlement being subject to a condition that he must first live to the age of 25. Rather, the gift over to the charities only takes effect if Luke, as a grandchild, fails to survive the deceased and “attain a vested interest”; [46] and
the testatrix employs noticeably different language in cl 4 to that used in cl 3, so as to set up a distinction between the time of enjoyment and the time of vesting. Thus, on the face of things and by implication, the ‘attainment of 25 years’ and the ‘attainment of a vested interest’ are separate occurrences, such that a grandchild failing to live to 25 years is not the determining factor that triggers a vested entitlement in favour of the named charities. [47]
Mr Brown submitted (in my estimation correctly) that the gift in cl 3 is a gift to a class. [48]
Further, helpfully and in an orderly way, he submitted:
in cl 3, the words “such … as survive me and attain the age of [25]” clearly indicate an intention that the testator wished to impose a condition precedent on the gift; [49]
in cl 4:
(a) use of the phrase ‘vested interest’, rather than merely ‘vests’ or some other word, does not leave open a conclusion that allows a limited reading of ‘vests in possession’; [50] and (b) if mere survivorship of the deceased caused a vesting in interest, the words ‘and attain a vested interest’ after ‘survives me’ would be rendered otiose, a constructional outcome to be avoided; [51]
if the words “expectant, contingent or vested share of any beneficiary” in cl 7 are assumed to be used in their ordinary correct legal sense, [52] because the only gift clause is cl 3, they must be understood to evidence an intention and understanding that the gift in cl 7 is capable of being both expectant and contingent, [53] if the words have any work to do. [54]
Further, Mr Brown:
drew attention to comments of Grant MR in Leake v Robinson [55] distinguishing vesting in interest from postponement of possession, which I have considered; and
relied on the line of cases considered by Hallen J in Arnott v Kiss [2014] NSWSC 1385 and his Honour’s conclusion that the terms of the Will there provided a gift conditional upon the beneficiary attaining the age of 45, submitting that similarly to this case, there was no vested interest until there was a person answering the description of the gift recipient. [56]
Mr Brown sought to distinguish a number of cases which Mr Bilinksy had relied upon, including Hickling v Fair [1899] AC 15 at 27, Hume at 258 and 265, and Hamersley v Newton (2005) WAR 568 at 588; [2005] WASC 221. [57] However, it should be noted that Mr Bilinksy did not rely upon those cases as mandating a particular outcome, as distinct from demonstrating general principles.
Lastly, Mr Brown submitted that if the class has closed and Luke’s interest has vested in any sense, he would be able to demand that the trust be brought to an end, citing Saunders v Vautier. [58] However, Mr Bilinsky did not contend for such a position and accordingly there is no need for me to determine it.
In reply, Mr Bilinksy:
cavilled with the proposition that the words “attains a vested interest” amount to surplusage. Whilst accepting prima facie that all words should be given some meaning, he submitted [59] that sometimes the use of words which are not strictly necessary are included to emphasise the testatrix’s intention, [60] and, in any event, the ‘surplusage’ rule does not require the presumption that each word used in a statute or a document should change the meaning of the sentence in which it appears; [61]
disputed that, in cl 7, Luke’s interest should be regarded as being conditional, drawing an analogy with expectant mothers, observing “women who, knowing they are already pregnant, can expect that they will in months give birth to and, as it were, take possession of ultimately a baby. An expectant mother is not someone who is not already pregnant or can only hope that they might one day have a baby”. [62] In addition, he submitted that the word ‘contingent’ did not detract from an overall proper construction that the gift had vested in possession. [63]
There is no dispute or, in any event, serious issue that the gift in cl 3 is a gift to class, closed upon the deceased’s death such that Luke is the only grandchild within the class. [64]
However, determination of the question of when the cl 3 interest vests has been difficult. That is in part by reason of the paucity of wording in the Will and paucity of evidence of surrounding circumstances.
This is one of those construction cases where there are only slight indicators [65] pointing to the testator’s intentions one way over the other.
I acknowledge the force of Mr Brown’s submissions that, on one view, the words “and attains a vested interest” in cl 4 might be regarded as being otiose if the survival by a grandchild of the deceased was enough to give rise to a vesting in interest, and I have anxiously considered the balance of his submissions.
However, having regard to the following matters, I do not think that the vesting in interest in cl 3 of the Will, properly construed, in light of the Will as a whole and the surrounding circumstances, is deferred until any one or more grandchild (in this case, only Luke) attains the age of 25 years, but rather is vested upon the deceased’s death.
When the Will was made, only one potential member of the grandchild class, namely Luke, was born. The deceased was aged 64, and Christopher was aged 34. Christopher had been married for approximately 4-5 years and Luke was aged 3.
The following seem to me to be material both individually and collectively (listed in no specific order).
First, under the scheme for the Will, the deceased has bypassed her son for provision. The principal provision under the Will is (subject to the vesting issue), provision to the issue of the deceased’s son, Christopher. Whilst the gift in cl 3 is a form of class gift, there was when the Will was made only Luke (then aged 3) as a potential member of that class.
Secondly, there is no particular evidence that indicates the deceased had any connection with the nominated charities.
Thirdly, considering Luke’s age at the time the Will was made, had the deceased died shortly after and the cl 3 gift was not regarded as being vested in interest but rather construed as a contingency of any grandchild attaining the age of 25, Luke’s entitlement would remain uncertain for over two decades.
There seems to be no obvious reason, disclosed in the Will nor explicable by the limited contextual material, why the deceased would have wished (in the case I have posited) for several decades to pass with no certainty as to the ultimate beneficiary. On the other hand, if the gift were construed as having been vested in interest but not in possession, the lack of certainty conundrum is resolved. Deferral of possession, at least in the case of Luke, is explicable by reference to his tender age in 2009.
This case is a salient reminder of difficulties in construction engendered by lack of clear language. Solicitors are encouraged, in taking instructions and drafting Wills, to clarify testators’ intentions regarding when a gifted interest vests in interest or possession, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’. Steps to clarify intention with the testator in this way may avoid or reduce lengthy delays in administration and unnecessary costs subsequent to the testators’ death in contests over the proper construction of the Will, thus facilitating timely and moderate costs of administration of the testators’ estates.
The Orders of the Court are: The Court
Declares that, on the proper construction of the Will of the deceased dated 6 August 2009:
(a) Luke Christopher Goodman (being the only child of the Plaintiff and the only surviving grandchild of the deceased) has attained a vested legal interest in the whole of the estate of the deceased, with his entitlement to possession of such interest being merely postponed until he attains the age of 25 years; (b) the class referred to in clause 3 of the Will closed upon the deceased’s death.
(a) in the case of the plaintiff calculated on the ordinary basis; and (b) in the case of the first defendant, calculated on the indemnity basis.
**********
See NASA, “Eclipses during 2009” (accessed 21 October 2025) https://eclipse.gsfc.nasa.gov/OH/OH2009.html.
See NextSense Act 1998 (NSW): CB 8-12.
See Health Services (Sydney Children’s Hospitals Network (Randwick and Westmead)) Order 2010 (NSW): CB 13-14.
Court Book (CB) 4.
For convenience and with no disrespect to Mr Elliott, when referencing submissions by defendant's counsel I will simply refer to Mr Brown.
Affidavit of Shaun Simon Cockle affirmed 9 October 2025; Exhibit P1.
DS [11].
DS [3].
Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] 1 All ER 667 at 689 [64].
T 4.15-8.15, 8.32-.48.
T 13.10-.11.
Annexure ‘C’ to the affidavit of James Williams sworn 2 October 2025.
Annexure ‘F’ to the affidavit of James Williams sworn 2 October 2025.
See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [154] per Edelman J; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78-79 per Isaacs J; [1925] HCA 18.
See e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson and Leeming JJA agreeing at [1] and [2] respectively), citing Fell v Fell (1922) 31 CLR 268 at 273-274 per Isaacs J; [1922] HCA 55 (Fell), and Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton. See also DS [14].
Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 per Isaacs and Powers JJ at 560-561; [1915] HCA 48; Fell at 273-274 per Isaacs J; Hume v Perpetual Trustees Executors & Agency Co of Tasmania Ltd (1939) 62 CLR 242 at 266 per McTiernan J; [1939] HCA 10 (Hume). See also PS [20] and DS [14], [17] and T 8.48-9.3.
Estate of the late John Curry Doherty Hamilton [2025] NSWSC 932 (Hamilton) at [57]-[61]; Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 (Fairbairn) at [19] per Campbell JA (Macfarlan JA at [129] and Young JA at [130] agreeing) citing Powell J in Coorey v George (Supreme Court (NSW), 27 February 1986, unrep: BC8601222) at 14, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 at 32C-33B.
Hume per Dixon J at 265.
Hume per Dixon J at 265.
Hume per Starke J at 259.
Hume per Dixon J at 265; see also DS [18].
See also PS [16] citing Austin v Wells [2008] NSWSC 1266 per White J at [12].
Hamilton at [54].
Haines at 53, Hockley at 52, and Dal Pont at 56, [3.7] expressly refer to that presumption, in each case making reference to the decision of Isaacs J in Wyatt v Perpetual Trustee Co Ltd (1917) 23 CLR 14 at 19; [1917] HCA 16 (Wyatt). See also PS [18].
Hume per Starke J at 259.
PS [20].
Hume per Dixon J at 262.
Hume per McTiernan J at 267.
Hume per McTiernan J at 267.
Wyatt per Isaacs J at 19.
Public Trustee v Bennett [2004] NSWSC 955 per Gzell J at [23].
Dal Pont at 382 [14.27].
[2019] WASC 12 at [13].
(1829) 1 Dow & Cl 268; 6 ER 525.
[1999] QSC 15.
(1829) 1 Dow & Cl 268 at 318; 6 ER 525 at 544.
(1829) 1 Dow & Cl 268 at 311; 6 ER 525 at 542.
See at 358.
At [72]-[76] per Campbell JA (especially picking up Starke J’s reference to it at [75]).
See e.g. EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 per Derrington J at [129].
The detail is drawn from an annexed statement that Christopher provided to the Police in July 2019, see CB 60.
PS [16]-[19].
PS [24]-[25], [28], [29].
T 9.18-.38.
Citing James LJ in Re Deighton’s Settled Estates (1876) 2 Ch D 783 at 785, noting that it was cited by approval by McTiernan J in Hume at 266-267; T 9.40-10.9.
PS [26]; T 9.5-.16.
PS [27].
DS [26(a)].
DS [26(b)] citing In re Sinclair [1935] SASR 419 at 421 and noting, “Unlike here, the Will in that case included terms that provided for the scenario where if the grandson died during the testator’s lifetime, his interest in the estate would go to his heirs. That fact was critical to Richard J’s conclusions”. See also T13.16-.22.
DS [27(a)] citing Hume per Latham CJ at 256 and Dixon J at 263.
DS [27(b)].
DS [28] citing Napper v Miller [2003] NSWSC 376 at [26]; see also T 14.5-.10.
DS [28].
Citing Parker v Tootal [1865] 11 H.L.C. 143, but see (1865) LR 1 Exch 41.
DS [29] referencing [1817] EngR 25, but see (1817) 2 Mer 363; 35 ER 979 at 987-988.
DS [30]; T 14.19-.26, 16.18-.21.
DS [19]-[25].
DS [13] referencing [1841] EngR 629, but see (1841) Cr & Ph 240; 41 ER 482.
T 10.18-11.16.
Citing Commissioner of Payroll Tax (NSW) v RG Elsegood & Co Pty Ltd [1983] 1 NSWLR 223 (Elsegood) per Mahoney JA at 228G referring to Re Boden; Boden v Boden [1907] 1 Ch 132 at 143.
Elsegood per Mahoney JA at 228G.
T 11.18-12.9.
T 12.14-.22.
DS [12], [26(a)].
Harris v Ashdown (1985) 3 NSWLR 193 per Priestley JA at 204D-E.
Dal Pont at [14.7], 371-372 citing inter alia Re Tompson [1947] VLR 60 at 64-5 per Herring CJ.
T 12.24-.36, 14.44-15.4.
Typographical error in Cover Sheet amended [109(4)] - "19 November" amended to "20 November"
Fn 21: "at 263" amended to "at 265"
Goodman
Bryant [2025] NSWSC 1240
(2020) 104 NSWLR 155
(2019) 272 FCR 409
(2010) 78 NSWLR 577
(1922) 31 CLR 268
(1985) 3 NSWLR 193
(1939) 62 CLR 242
(1925) 36 CLR 60
(2018) 264 CLR 541
(1987) 9 NSWLR 18
(1915) 20 CLR 557
(1917) 23 CLR 14
In January 2020, the deceased (soon after her 75th birthday) was committed to stand trial in respect of 14 charges spanning the period between June 1980 and December 1991.
Between 21 July 2022 and 4 August 2022, there was a trial by jury in which the jury returned not guilty verdicts on two counts (1 and 11).
On 8 August 2022, the jury was discharged before delivering verdicts on the remaining charges, due to 5 members of the jury contracting COVID-19.
On 9 October 2023, a second trial commenced on an indictment containing 10 counts. On 19 October 2023, the deceased was acquitted of all counts.
In circumstances in which it appeared to me that, from a case management perspective, the parties would be assisted by a relatively quick determination as to the true construction of the deceased’s Will, I made directions for Christopher to file and serve an amended summons. The summons sought relief regarding the nature of the interest given under cl 3 of the Will and sought to join as respectively second, third and fourth defendants in the proceedings, Luke, NextSense and SCHN.
I directed that the amended summons be returnable before me for mention.
On a listing on 7 October 2025, Mr Bilinksy confirmed that the amended summons had been served on the additional defendants. Luke had filed a Notice of Appearance on 2 October 2025 and, despite apparently some encouragement, neither of the charities had then filed a submitting appearance or any appearance.
I made directions to enable determination of the construction issue as a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to be heard by me on 16 October 2025.
Comments and other findings set out in the reasons for judgment of Mahony SC DCJ said by Mr Bryant to bear upon Christopher’s credibility as a witness need not be determined by me nor be the subject of any further particular comment.
The above matters, in particular the inclination as to early vesting, are not arbitrary principles, rather they are only applying what the Court assumes is natural in the mind of a testator—to have as much certainty about his dispositions as is consistent with his expressed wishes. [30] The rationale for the presumption has been expressed in various ways, including that it reflects the common sense assumption that a testator wishes the objects of his beneficence to benefit as early as possible. [31]
Associated with a presumption of early vesting is a related presumption that, in cases of ambiguity, words which might suggest an age contingency are not to be construed as precluding a vesting entry in interest but rather the postponement of enjoyment of the interest as vested. [32] Dal Pont comments that Master Sanderson in Wiegele v Thomson [33] cast some doubt on the enduring subsistence of the presumption. The Master suggested that there is little recent authority supportive of the presumption, referencing the 1829 decision of the House of Lords in Duffield v Duffiel**d (Duffield) [34] and a 1999 decision of Ambrose J in Will of Zimmermann (deceased). [35]
In Duffield, Lord Eldon [36] clearly agreed with the statement of the law when pronouncing on the appeal upon receipt of the opinion from Best CJ and the panel of Judges to whom a question had been referred. Best CJ stated: [37]
Fourthly, the only power specified in the Will by the deceased is a very significant power of advancement not merely of income but also of capital. Where the testator provides the power for the trustees to advance all or any part of the expectant capital share of a beneficiary, there is a judicial inclination to regard the gift as vested in interest upon the testator’s death. [66] I raised this with counsel. [67]
Fifthly, as observed by Mr Bilinsky, on its face, the wording of cl 4 contains no age condition but rather provides for the gift over to take effect only if such grandchild fails to survive the deceased and “attain a vested interest”.
Sixthly, noting Mr Brown’s argument regarding the words in cl 4, “survives me and attains a vested interest” seems to me to be at least consistent with the deceased emphasising that the mere survival would constitute a vested interest rather than being otiose per se. On that scenario, the words would be read in the sense “survives me and thus attains a vested interest”.