Meoli v Romero [2026] NSWSC 973 | Case summary | Zoe

NSWNSWSC

Meoli v Romero

[2026] NSWSC 973

Supreme Court of NSW|2026-08-13|Before: Williams J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-13

Before

Williams J

Catchwords

SUCCESSION — Wills, probate and administration — Whether deceased knew and approved contents and effect of codicil — Construction of will and codicil where ambiguity — Whether codicil carried out the intentions of the deceased — No question of principle

Source

Original judgment source is linked above.

Catchwords

SUCCESSION — Wills, probate and administration — Whether deceased knew and approved contents and effect of codicil — Construction of will and codicil where ambiguity — Whether codicil carried out the intentions of the deceased — No question of principle

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Meoli v Romero [2026] NSWSC 973

Hearing dates: 4 May 2026

Date of orders: 13 August 2026

Decision date: 13 August 2026

Jurisdiction: Equity – Probate and Family Provision List – Probate

Before: Williams J

Decision: See orders at [94]

Catchwords: SUCCESSION — Wills, probate and administration — Whether deceased knew and approved contents and effect of codicil — Construction of will and codicil where ambiguity — Whether codicil carried out the intentions of the deceased — No question of principle

Legislation Cited: Succession Act 2006 (NSW) ss 11, 27, 30, 32

Cases Cited: Battenberg v Phillips [2020] NSWCA 249
GLJ v Trustees of the Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Lim v Lim [2023] NSWCA 84
McBride v Hudson (1962) 107 CLR 604; [1962] HCA 5
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Peacock v Knox [2025] NSWCA 160
Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment

Parties: Flavio Meoli (First Plaintiff)
Juan Romero (Second Plaintiff)
Andres Romero (Defendant)

Representation: Counsel: L Ellison SC (Plaintiffs) T J Morahan (Defendant) Solicitors: Nicholas George Lawyers (Plaintiffs) Lighthouse Law Group Pty Ltd (Defendant)

The wills of Gaby and Maria were prepared by Gino Russo of Russo & Co Solicitors at Burwood. Mr Russo also prepared several iterations of a codicil to Gaby’s and Maria’s wills on 27 and 28 August 2018 and the codicil signed by Gaby on 29 August 2018.
Maria died on 14 February 2023. Gaby inherited the whole of Maria’s estate under her will.
Gaby died on 8 August 2024.
At the time Gaby and Maria made their mirror wills on 28 June 2010 and at the time Gaby executed the codicil to his will on 29 August 2018, each of Gaby and Maria held one parcel of 4,697 Commonwealth Bank of Australia (CBA) shares and one parcel of 19,500 CSL Limited shares. Pursuant to clause 3 of the mirror wills, each of them stood to inherit the other’s parcels of those shares if they survived the other by more than 30 days.
At the time of Maria’s death on 14 February 2023, Gaby and Maria jointly owned a parcel of 11,438 CBA shares in addition to their separately owned parcels of CBA and CSL Limited shares referred to above.
At the time of his death on 8 August 2024, Gaby’s assets included:
a parcel of 4,697 shares in the CBA with a value of $606,429.67;
a parcel of 19,969 shares in the CBA with a value of $2,578,197.59 (which I infer included the 11,438 shares that he had owned with Maria jointly as at the date of her death and which would have passed to him by survivorship, and the separate parcel of 4,697 shares owned by Maria as at the date of her death which would have passed to Gaby by way of inheritance from Maria); and
two parcels of 19,500 shares in CSL Limited, each with a value of $5,956,665. I infer that Gaby had inherited one of those parcels from Maria.
Juan Romero and Andres Romero are brothers. They grew up as neighbours to Gaby and Maria, and knew Gaby and Maria from their early childhood. Gaby and Maria had no children of their own. As Gaby and Maria aged, Juan and Andres assisted them with various chores and other matters. It is not necessary to resolve the contest between Juan and Andres about the extent of assistance that each provided, or about their attitude towards providing such assistance.
Consistently with the convention I have adopted in relation to Gaby and Maria, I will refer to Juan and Andres Romero by their first names, although I note that Juan was also known as “Johnny*”*. Again, no disrespect is intended.
Under Gaby’s will (prior to the execution of the codicil on 29 August 2018), if Maria predeceased Gaby, Andres received the Hillsdale unit, a parcel of 4,697 CBA shares, a parcel of 19,500 CSL Limited shares, and 7.89% of any cash at bank after the payment of specific gifts of cash to other named beneficiaries, while Juan received a 1.92% interest in Gaby’s share portfolio (excluding the parcels of shares specifically gifted to Andres) and 7.89% of any cash at bank after the payment of specific gifts of cash to other named beneficiaries.
These proceedings concern a dispute about the validity of the codicil dated 29 August 2017, about whether clause 2 of the codicil (if valid) should be rectified pursuant to s 27(1)(b) of the Succession Act 2006 (NSW), and about the construction of Gaby’s will and the codicil (if the codicil is valid, but not rectified).
The plaintiffs/cross-defendants are Flavio Meoli and Juan, who are named as Gaby’s executors and trustees in clause 1 of the codicil. They contend that the codicil is valid but that clause 2 of the codicil should be rectified or construed so that it operates as a gift of 4,697 CBA shares and 19,500 CSL Limited shares to Juan in lieu of the gift of those shares to Andres in the will, with the result that the gift of those shares to Andres in clause 3 of the will has no dispositive effect. They seek a grant of probate in solemn form of the will and the codicil and an order for rectification of the codicil by inserting the words “In lieu of the gift of shares to Andres Romero under the heading ‘Shares – direct allotment’ and in respect of the same parcel of shares” at the beginning of clause 2. In the event that the codicil is not rectified, the plaintiffs seek an order or declaration that the will and the codicil be construed so that clause 3 of the will in respect of the “Shares – direct allotment” is modified by clause 2 of the codicil.
Andres is the defendant/cross-claimant. He contends that the codicil is invalid because it was not known and approved by Gaby at the time that it was signed on 29 August 2018. Accordingly, he seeks an order for the grant of probate in solemn form to Flavio Meoli of Gaby’s will dated 28 June 2010. Alternatively if the codicil is held to be valid, Andres disputes that it should be rectified and contends that, on the proper construction of the will and the codicil the gift of 4,697 CBA shares and 19,500 CSL Limited shares to Andres in the will is supplemented with an additional gift in the codicil of the same number of shares in each of those companies to Juan.
For the reasons that follow, I have determined that the codicil is valid and that, properly construed, the gift of shares to Juan in clause 2 of the codicil operates in addition to and not in lieu of the gift of shares to Andres in clause 3 of Gaby’s will.

Andres adhered to that evidence in cross-examination. It was not put to Andres in cross-examination that the handwriting on the document was not Gaby’s handwriting. Nor was it put to him that he did not see Gaby make the handwritten notation on that page of his will before Gaby and Maria went to see Mr Russo on 27 August 2018. It was not submitted on behalf of the plaintiffs that the Court should not accept Andres’ evidence that he saw Gaby making that notation on his will by hand.
Andres gave evidence that, after leaving Gaby and Maria’s home on the occasion referred to at [29]-[32] above, he confronted Juan, who confirmed that he had asked to be given the same as Andres under their wills. Andres also adhered to that evidence in cross-examination.
Juan denies that any such confrontation occurred and denies that he asked, let alone begged, Gaby and Maria to leave him anything in their wills. According to Juan’s evidence, Gaby and Maria called Juan and Andres to their home at some time shortly before 27 August 2018. When the four of them were together in Gaby and Maria’s living room, Maria said words to the effect: “Gaby and I have agreed to change our wills and make Johnny the executor together with Flavio and if Johnny can’t be the executor then Andres will be the executor with Flavio*”*. Gaby said words to the effect: *“*I’ve decided to give Johnny Commonwealth Bank shares and all my CSL shares. … I’ve given you my unit that you have beautifully renovated Andres and I’ve also given you my video and record collection.”
I find that Gaby’s handwritten note referred to at [30] above evidences an intention on his part that both his will and Maria’s will should provide for the survivor of the two of them to give one parcel of 4,697 CBA shares and one parcel of 19,500 CSL Limited shares to each of Andres and Juan. The parcel of CSL Limited shares to be given to Juan is described in Gaby’s handwritten note as 19,000 shares, but I infer that this is an error. The evidence establishes that Gaby and Maria each had a parcel of 19,500 CSL Limited shares and a parcel of 4,697 CBA shares at the time they made their wills on 28 June 2010 and as at August 2018. I infer that Gaby anticipated that the survivor of the two of them, at the time of their death, would own his or her original parcels of 4,697 CBA shares and 19,500 CSL Limited shares and also the parcels of the same number of shares in each company inherited from their deceased spouse pursuant to clause 3 of the will of the deceased spouse.
I reject the submission made on behalf of the plaintiffs that Gaby might have intended in August 2018 to remove Andres as a beneficiary under clause 3 of his will under the headings “Shares – Direct Allocation” because Maria had been annoyed with Andres one year earlier in August 2017 for disclosing information about their wills to Juan. If that had been Gaby’s intention, it is inherently probable that he would have simply struck through Andres’ typewritten name next to each parcel of shares and handwritten Juan’s name in each of those two places. Instead, Gaby used an arrow to indicate an additional direct allotment of shares to Juan and wrote out the details of each additional share parcel next to Juan’s name without striking through any part of the words recording the gift to Andres in that part of clause 3.
As counsel for Andres submitted, Andres’ evidence that Gaby and Maria told him in August 2018 that they had decided to give Juan the same amount of shares as Andres is inherently probable, as it is consistent with Gaby’s intention at the time as evidenced by his handwritten note. Juan’s evidence of the conversation with Gaby and Maria referred to at [35] above is inconsistent with Gaby’s intention at the time, and therefore inherently improbable. I accept Andres’ evidence and reject Juan’s evidence. It is not necessary to make any finding about whether or not Juan had asked or begged Gaby and Maria to leave him the same as what they had left to Andres in their wills.
Mr Russo has an undated file note which reads:

Mr Russo gave evidence that he could not recall who conveyed those instructions to him, but that he would not have made the note unless the instructions had come from Gaby or Maria and that the instructions would have been communicated to him at some time before they attended his office on 27 August 2018.
On 27 August 2018, Andres drove Gaby and Maria to Mr Russo’s office at Burwood.
According to Andres’ evidence, Gaby and Maria each executed a codicil on that date which appointed Mr Meoli and Juan jointly as executors and trustees and confirmed the will dated 28 June 2010 in all other respects. The codicil in those terms executed by Maria was admitted into evidence. No party to these proceedings has been able to locate a codicil in those terms executed by Gaby, but it is inherently likely that he did execute a codicil in those terms as counsel for the plaintiffs accepted, and I so find. I reject Mr Russo’s evidence disputing that Gaby executed a codicil in those terms. Mr Russo’s evidence was based solely on the inability of any party to produce such a document, and not on any recollection that he has about the terms of the documents that were signed by Maria and Gaby and witnessed by Mr Russo on 27 August 2018.
Andres gave evidence that he drove Gaby and Maria home after the appointment. After they arrived back home, Maria appeared to Andres to read the documents that she had taken away with her from their appointment with Mr Russo. Maria said: “He has not included the shares to Johnny*”. Maria then made a telephone call, following which she said to Andres: “He has not done what we asked him to do, that was to give Johnny the same number of shares as we have given to you.* I have made an appointment for you to take Gaby and me to have that fixed up tomorrow.” Andres’ evidence of what Maria said after making the telephone call was not challenged in cross-examination. It was not submitted on behalf of the plaintiffs that this aspect of Andres’ evidence should not be accepted.
Andres gave evidence that Maria telephoned him early on the morning of 28 August 2018 complaining that her heart was thumping and that she thought she was going to die. Andres called an ambulance and Maria was admitted to St Vincent’s Hospital at about 7:30am. Gaby was upset and anxious about Maria, but told Andres that they would have to go and see Mr Russo as Maria had organised it. Andres drove Gaby to Mr Russo’s office at Burwood and waited in the car for him.
Andres gave evidence that Gaby showed him the document that he signed in Mr Russo’s office when he returned to the car. It was a codicil bearing the date 27 August 2018 which stated that Gaby appointed Mr Meoli and Juan jointly as his executors and trustees in clause 1, gave “my shares in the Commonwealth Bank (4,697) to the said JUAN ROMERO for his absolute use and benefit” in clause 2, and confirmed his last will and testament dated 28 June 2010 in all other respects. The codicil made no reference to Gaby’s shares in CSL Limited. Andres pointed out to Gaby that “this is wrong, it refers to the CBA shares but not the CSL shares*”. Gaby said: “OK I will have it fixed up”*.
Andres gave evidence that Gaby then left the car and walked back into Mr Russo’s office, taking with him the codicil dated 27 August 2018 and his handwritten note referred to at [30] above.
When Gaby returned to the car, he showed Andres a new document prepared by Mr Russo’s office which he had signed. Andres gave evidence that he took a quick look at it and saw that it referred to both the CBA shares and the CSL Limited shares. Andres then drove Gaby home. After they arrived at Gaby’s home, Juan telephoned and asked to see a copy of the codicil that Gaby had signed. With Gaby’s permission, Andres took a photo of it which he sent to Juan. A short time later, Juan telephoned Andres and told him that the document was wrong because it was in Maria’s name and referred to 195,000 rather than 19,500 CSL Limited shares.
The codicil that Gaby signed and brought home with him on 28 August 2018 was in fact described as a codicil to the last will of Maria.
Clause 1 of that codicil was in the same terms as the previous two iterations of the codicil.
Clause 2 stated:

Clause 3 confirmed the contents of Gaby’s will and testament dated 28 June 2010 in all other respects.
Gaby’s execution of the codicil had been attested by Mr Russo and Mr Joseph Victor Russo.
After Andres drew Gaby’s attention to the errors that had been identified by Juan, Gaby — in Andres’ presence — ruled through Maria’s name and wrote his own name by hand, and ruled through the number 195,000 and hand-wrote the number 19,500, and signed both of those changes. Gaby and Andres agreed that they would return to Mr Russo’s office the following day.
Andres drove Gaby to Mr Russo’s office on 29 August 2018. As on previous occasions, Andres waited in the car while Gaby went in to see Mr Russo. When Gaby returned to the car on this occasion, he showed Andres the document that he had signed. That document was a codicil in terms which incorporated Gaby’s handwritten changes made to the codicil that he had signed the previous day. The terms of that codicil signed by Gaby on 29 August 2018 are set out in full at [10] above. Gaby’s signature was attested by Mr Russo and G Filocamo.
According to Andres’ evidence, Gaby took his handwritten note referred to at [30] above with him on each of the four occasions that Gaby went in to see Mr Russo on 27, 28 and 29 August 2018.
In cross-examination, Mr Russo gave evidence that he had never seen Gaby’s handwritten note and that, if Gaby had shown him that document, it “would’ve triggered a different codicil, yeah*”*.
Mr Russo said that he had no recollection of his instructions other than what is recorded in his contemporaneous note extracted to at [39] above. That note is silent as to whether Mr Russo was instructed that the proposed gift to Juan of shares in the CBA and CSL Limited (in numbers not specified in Mr Russo’s note) was in addition to or in lieu of the existing gift of specific numbers of shares in each of those companies to Andres in clause 3 of Gaby and Maria’s mirror wills dated 28 June 2010.
In paragraphs 7 and 8 of his affidavit sworn on 17 May 2025, Mr Russo deposed:

In cross-examination, Mr Russo confirmed that the reference to instructions recorded in Mr Russo’s handwriting in the answer to question 3 above is a reference to his note referred to at [39] above. Mr Russo also gave evidence confirming that he had not recorded and did not recall any reason given by Gaby for those proposed changes, as he stated in December 2024 in answer to question 4 above. At the same time, Mr Russo maintained that he had the “clearest recollection” described in paragraphs 7 and 8 of his 17 May 2025 affidavit to which I have referred above and claimed to remember that “**the instructions were that the CBA and the CSL shares were to go to Juan, whereas before they were going to Andres in the will, and hence the change of codicil”.
Mr Russo implausibly asserted that that there was no inconsistency between the aspects of his evidence referred to above.
Mr Russo also gave evidence that he recalled Gaby signing each iteration of the codicil before him, that Gaby had seemed to Mr Russo to be happy about signing each document and to agree with its contents, and that Mr Russo was satisfied at each time that Gaby understood the document that he was signing, notwithstanding that the contents of the first three iterations of the codicil were subsequently discovered to be wrong. Mr Russo did not notice the errors at the time.
Mr Russo failed to make a detailed note of the instructions that he received in August 2018. Having regard to the well-known fallibility of human memory after a substantial passage of time, [5] it is inherently improbable that he is now able to recall details of those instructions that he did not note at the time. His evidence claiming such a recollection is internally inconsistent, and is also inconsistent with his written responses to questions asked of him by Andres’ solicitor in December 2024. I am therefore not persuaded that Mr Russo has any recollection of receiving instructions beyond the bare details recorded in his contemporaneous note referred to at [39] above. Specifically, I am not persuaded that Mr Russo recalls receiving instructions from Gaby or Maria to the effect that the shares which had been gifted to Andres under clause 3 of their wills were to be given to Juan instead of Andres, and I reject his evidence to that effect. Whilst I accept that Mr Russo does not now have a positive recollection of having seen Gaby’s handwritten note extracted at [30] above at the time he prepared the codicils, I do not accept that he has a positive recollection that he did not see it at the time. It is inherently probable that Gaby did show that note to Mr Russo in the course of communicating his instructions during at least one of the meetings on 27, 28 and 29 August 2018. I accept Andres’ evidence that Gaby did take that document with him on each of the four occasions that he went to see Mr Russo on 27, 28 and 29 August 2018.
According to Andres’ evidence, he visited Maria in hospital on 29 August 2018 after he and Gaby returned from Mr Russo’s office. During that hospital visit, Maria asked Andres: “Has everything been done?” Andres replied: “Yes, it is all done.” Maria replied: “Good, now you and Johnny have the same amount of CBA and CSL shares*”*.
According to Juan’s evidence, Andres said to him on or soon after 29 August 2018 words to the effect: “Gaby’s happy with the will now” and “it’s all done you have the shares now”. Juan adhered to that evidence in cross-examination.
Andres does not recall speaking to Juan on 29 August 2018, but says that they spoke by telephone the following day and Juan asked him if it was “all sorted out”. Andres replied: “Yes, you and I are both getting the shares and Maria and Gaby are happy*”*. Andres adhered to that evidence in cross-examination.
I accept Andres’ evidence of this conversation as inherently probable, and reject Juan’s evidence as inherently improbable, for the reasons explained at [38] above.
According to Juan’s evidence, Maria said to him shortly after the codicils were executed that she was much older than Gaby and that, if he were to pass away before her, she would change her codicil to ensure that Juan received the gift of the CBA and CSL shares.

Where testamentary capacity is presumed or established (as in the present case) and the testamentary document has been duly executed, the testator’s knowledge and approval of the contents of the document at the time of its execution is presumed or assumed in the absence of evidence of “any circumstance which creates a well-grounded suspicion or doubt” as to whether the testamentary document “expresses the mind of the testator*”. The existence of such suspicious circumstances displaces that presumption or assumption. The onus is then cast on the proponent of the testamentary document to remove the suspicion by affirmatively proving that the testator knew and approved of the contents of the document and appreciated the effect of what they were doing so that it can be said that the document “contains the real intention and reflects the true will of the testator”*. What is required to remove the suspicion will vary according to the degree of suspicion that is aroused by the particular circumstances. Evidence that the testator gave instructions for the document, or that it was read over by or to the testator prior to execution, will often suffice to dispel the suspicion, but that is not invariably so. [6]
In Lewis v Lewis, [7] the Court of Appeal addressed the nature and content of the requirement of knowledge and approval in a case where there is no issue about testamentary capacity but where there are suspicious circumstances. Specifically, is it sufficient to show that the testator knew and approved the contents of the document (in that case, a will) or is it necessary to demonstrate knowledge and approval of the effect of the document? [8]
Leeming JA, with whom the other members of the Court of Appeal agreed, rejected the notion that “in order to establish knowledge and approval in the enormous variety of cases which may give rise to suspicious circumstances, knowledge of the words contained in the will without more will be invariably sufficient to discharge the onus in all such cases.” [9] Having earlier acknowledged that in many cases there will be no difference between the contents of a testamentary instrument and its legal effect, his Honour added: “Sometimes it might be, other times it might not.” [10] Whether it is necessary in any particular case to establish knowledge and approval of the contents and effect of the testamentary instrument, as opposed to knowledge of the contents only, “will depend on the degree to which the circumstances of the case are suspicious, the sophistication of the testator, the complexity of the will and the other facts of the case. But I cannot accept [the appellant’s] proposition that recitation of the text to a capable testator who then executes the will is invariably sufficient to discharge the onus a propounder bears in such a case.” [11] His Honour emphasised that his rejection of that proposition did not require the propounder to demonstrate that the testator had a precise legal understanding of the testamentary document, and that it would be sufficient if the testator were shown to have known and approved of the gravamen of the document. [12]
Andres relies on the following alleged matters as suspicious circumstances that displace the presumption of knowledge and approval, and contends that Juan has not discharged his onus of affirmatively proving that Gaby knew and approved the contents of the codicil dated 29 August 2018:
Gaby was provided with and executed three incorrect versions of the codicil before signing a fourth version, which evidences confusion about the contents of the codicil;
the four iterations of the codicil did not represent Gaby’s wishes as enunciated by him at or about the time of the preparation and execution of the codicils; and
the codicils did not represent Gaby’s wishes as specified in his own handwritten instructions which he took with him on each occasion that he attended the solicitor’s office for the purpose of the preparation and execution of the codicil.
Gaby knew the fourth codicil that he signed on 29 August 2018. Although he had signed three previous iterations of the codicil, the terms of the fourth iteration were in accordance with the document that Gaby himself had created by his handwritten amendments to the third iteration of the codicil, as senior counsel for the plaintiffs submitted. The evidence does not support a finding that Gaby was confused about the contents of the fourth iteration when he signed it on 29 August 2018. The first three iterations of the codicil did not represent Gaby’s wishes, but the fourth iteration signed on 29 August 2018, properly construed in the manner explained at [90] below, gave effect to Gaby’s intention that, if Maria predeceased him, he would give one parcel of 4,697 CBA shares and one parcel of 19,500 CSL Limited shares to each of Andres and Juan. [13]
For those reasons, I find that Gaby knew and approved of the contents and effect of the codicil that he signed on 29 August 2018. That codicil is therefore a valid testamentary document.

I accept the submission made on behalf of the plaintiffs that s 32 applies in this case. On the one hand, the specific numbers of “my shares” in each of CBA and CSL Limited referred to in clause 2 of the codicil suggests that clause 2 is intended as a gift to Juan of the parcels of shares in the precise number owned by Gaby as at the date of the codicil. [16] On the one other hand, Gaby only owned one of each parcel of the shares described in clause 2 of the codicil as at the date of the codicil (and as at the date of the will), and those shares are the subject of the gift to Andres in clause 3 of the will under the headings “Shares – Direct Allotment”. As counsel for Andres submitted, the codicil does not expressly revoke that gift to Andres. [17] As senior counsel for the plaintiffs submitted, the will and the codicil are ambiguous by reason of that apparent inconsistency.
Because s 32 applies, evidence of Gaby’s intention is admissible to assist in the interpretation of the language of the will and the codicil. The question remains: what do the written words mean in this particular case? The question is not: what did Gaby mean to do? [18]
Taking into account the surrounding circumstances that Gaby and Maria each owned a parcel of 4,697 CBA shares and a parcel of 19,500 CSL Limited shares, their mirror wills under which each of them left the whole of their assets to the other if the other survived them and only made specific gifts of those particular share parcels in the event that the other had predeceased them, the absence of any evidence that Gaby intended to depart from that basic scheme by making the codicil, my finding that Gaby intended that the survivor of the two of them would leave one parcel of 4,697 CBA shares and one parcel of 19,500 CSL Limited shares to each of Andres and Juan, [19] the absence of any words in the codicil expressly revoking the gift to Andres in clause 3 of the will, and clause 3 of the codicil which confirmed the will in all respects save for clause 2, it is my opinion that the intended meaning of the language of the codicil read together with the will is that, in the event that Maria predeceases Gaby (so that the gift of all of his assets to her in clause 3 of his will fails and he inherits all of her assets under clause 3 of her mirror will), clause 2 of the codicil avoids the 4,697 CBA shares and 19,500 CSL Limited shares that Gaby will have inherited from Maria in that scenario from forming part of the gift of the “Balance of shares held” under clause 3 of his will and requires the trustee to distribute 4,697 CBA shares and 19,500 CSL Limited shares to each of Andres and Juan before distributing the “Balance of shares held” to the beneficiaries named and in the proportions specified in clause 3 of Gaby’s will. That is to say, the gift of shares to Juan in clause 2 of the codicil, properly construed, operates in addition to, and not in lieu of, the gift of shares to Andres under the headings “Shares – Direct Allotment” in clause 3 of the will.
For those reasons, there will be an order dismissing the plaintiffs’ claim for a declaration to the effect that the will and the codicil, properly construed, have the effect that clause 3 of the will is modified by clause 2 of the codicil so that the gifts in favour of Andres in clause 3 of the will under the heading “Shares – direct allotment” have no dispositive effect.
Although Andres’ cross-claim did not seek a declaration as to the construction of the codicil, it is appropriate to quell the dispute between the parties by making a declaration to the effect that the will and codicil are construed as set out at [90] above.

Meoli v Romero

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

Salient evidence

Consideration and determination

The issues in dispute

Knowledge and approval

Rectification

Construction

Grant of probate

Conclusion and orders

Endnotes

Parties

Legislation Cited (1)

Cases Cited (20)