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[2026] NSWSC 1225
General information, not legal advice.
Supreme Court of NSW
2026-10-06
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: The Estate of Wade [2026] NSWSC 1225
Hearing dates: 24 September 2026
Date of orders: 2 October 2026
Decision date: 06 October 2026
Jurisdiction: Equity
Before: Meek J
Decision: Held on the true construction of the Will, the plaintiff is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue — Rectification claim dismissed
Catchwords: SUCCESSION — In 2014, the deceased (then 87) made a formal Will gifting his estate to his wife (then 88) with a gift over to his daughter (P), making no provision for his other three children (sons, D1-D3) — In June and July 2018 the deceased revisited his Will and requested his nephew to assist him in preparation of it — A home-made Will was prepared and executed — Subsequent to the deceased’s death, contest arose regarding the true construction of the deceased’s disposal of his residuary estate (which was substantial including a house and other land at Murwillumbah) — The final part of the Will contained wording of a purpose “Providing the most appropriate care for my loving wife” (Care purpose) — Two of the deceased’s sons (D1 and D2) contended that the residuary gift failed so as to give rise to an intestacy and P contended the gift was effective to give her beneficially the entirety of the residuary estate list — P also sought rectification consistent with that construction — Orders made for separate determination of the construction and rectification issues — The parties accepted that the residuary clause was ambiguous — Construction issues arose as to whether the Care purpose: (a) was precatory or mandatory; (b) qualified the whole of the gift of residue; and (c) was exclusive in focus thus conferring no beneficial interest on P — Held on the true construction of the Will, P is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue
SUCCESSION — Will construction — Evidence —Discussion of admissibility and use of extrinsic evidence being context evidence and intention evidence (general law and statutory), in light of acceptance of ambiguity — If evidence is to be given as to the value of the deceased’s property at all, it is helpful to have evidence as the date of the Will that is the subject of the construction dispute, rather than “probate values”, years after the date of the Will
SUCCESSION — Will construction — Discussion of object of Will construction — Discussion of approach to construction of home-made Wills including discernment of ‘schemes’, use of grammar and sentence structure, discerning whether language is precatory or mandatory, determining the effect of gift purpose provisions and testing of alternate constructions
SUCCESSION — Will construction — Formatting (relevantly bolding and capitalisation and hyphen operating as an em dash) — Discussion regarding effect and use of text formatting in discerning construction in circumstances where the drafter used a Google form precedent
SUCCESSION — Rectification — Principles regarding rectification outlined — Held on the facts, rectification rejected
WORDS AND PHRASES — “ambiguity” — “precatory” — “hyphen”, “en dash”, and “em dash”
Legislation Cited: Evidence Act 1995 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure 2005 (NSW)
Cases Cited: AMCI Investments Pty Ltd v Rio Doce Australia Pty Ltd [2008] QCA 387
Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685
Bear v Bear; Jordan v Bear [2022] NSWSC 1687
Boyd v Peeters [2024] NSWSC 1035
Carrington v Wallace [2019] NSWSC 1301
Chalmers Leask Underwriting Agencies v Mayne Nickless Ltd (1983) 155 CLR 279; [1983] HCA 20
Charter v Charter (1874) LR 7 HL 364
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Clerk v Equity Trustees Executors and Agency Co Ltd (1913) 15 CLR 625; [1913] HCA 8
Cobcroft v Bruce [2013] NSWSC 774
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] HCA 22
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
Duncan v Equity Trustees Executors and Agency Co Ltd (1958) 99 CLR 513
Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Fielder v Burgess [2014] SASC 98
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Gibb-Maitland v Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579; [1947] HCA 35
Goodman v Bryant [2025] NSWSC 1240
Hancock v Watson [1902] AC 14
Harris v Ashdown (1985) 3 NSWLR 193
Herbert v Badgery (1893) 14 LR (NSW) Eq 321; (1893) 10 WN (NSW) 128
Hourigan v Trustees, Executors & Agency Co Ltd (1934) 51 CLR 619
Hume v Perpetual Trustees Executors & Agency Co of Tasmania Ltd (1939) 62 CLR 242; [1939] HCA 10
In re Hamilton; Trench v Hamilton [1895] 2 Ch 370
James v Douglas [2016] NSWCA 178
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Lewis v O’Loughlin (1971) 125 CLR 320
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
Macfarlane v Veale [1950] SASR 268
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Middleton v Schofield [2022] NSWSC 1454
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Muir v Winn [2009] NSWSC 857
Newey v Westpac Banking Corporation [2014] NSWCA 319
NSW Trustee and Guardian v Matthews [2024] NSWSC 595
Parry v Haisma [2012] NSWSC 290
Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187
Plunkett v Field [2025] NSWSC 797
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Rawack v Spicer [2002] NSWSC 849
Re Estate of John Currie Docherty Hamilton [2025] NSWSC 932
Re Hamilton [1895] 2 Ch 370
Re Pulbrook; Pulbrook v Pulbrook (1937) 37 SR (NSW) 345; (1937) 54 WN (NSW) 128
Re Williams; Williams v Williams [1897] 2 Ch 12
Redenbach v Norris Bros Pty Ltd [2025] NSWSC 765
Reeves v Reeves [2024] NSWSC 134
Reilly v Reilly [2017] NSWSC 1419
Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13
Sammut v Manzi [2008] UKPC 58; [2009] 1 WLR 1834; [2009] 2 All ER 234
Singh v Singh [2018] NSWCA 30
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Theunissen v Barter (2025) 117 NSWLR 49; [2025] NSWCA 50
Vescio v Bannister [2010] NSWSC 1274
Warton v Yeo [2015] NSWCA 115
Watson v Foxman (1995) 49 NSWLR 315
Wu v Shen; S.JP (NSW) Pty Ltd v S.JP (Aust) Pty Ltd [2026] NSWSC 1219
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Texts Cited: Dal Pont, G.E, Interpretation of Testamentary Documents (LexisNexis, 2nd ed, 2025)
Encyclopaedic Australian Legal Dictionary (Lexis-Nexis, online ed)
Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworth)
Justice Michael Meek, ‘Will Construction’ (NSW Bar Association Lecture Series, Succession and Elder Law Committee, 22 March 2023)
Kerridge, Roger, and Julian Rivers, ‘The Construction of Wills’ (2000) 116 Law Quarterly Review 287
Leeming, Mark, ‘The Limits of rectification’ (2023) 17 Journal of Equity 122
Martyn, John Ross et al, Theobald on Wills (Sweet & Maxwell, 17th ed, 2010)
Merriam Webster Dictionary (online ed)
Oxford English Dictionary (online ed)
Sparks, Nicholas, ‘The Notebook’ (Sphere, London 2021)
West, Jessamyn, To see the dream (Harcourt, Brace and Company, New York, 1957)
White, R. W., ‘Use of Extrinsic Evidence to Construe Wills’ (Succession Law Conference, Law Society of South Australia, 15 November 2011)
Category: Principal judgment
Parties: Plaintiff: Richard Glen Wade
Defendant: Dianne Vicki McKenney
Representation: Counsel:
Plaintiff: A Crossland
Defendant: S Chapple SC
Solicitors:
Plaintiff: Bolster & Co
Defendant: Michael Vassili Lawyers
File Number(s): 2024/00477576 and 2024/00410849
HIS HONOUR: Fictional and true accounts of loving care, and in particular care for the elderly, are powerful, nay vital, because they help us to reflect on what it means to be humane, and inspire us to compassionate action.
Fiction may distil or accentuate aspects of care in ways not readily discernible from real life. Thus, famed American author, Jessamyn West, penned that “Fiction reveals truth that reality obscures” [1] .
Often fiction is inspired by actual events. Such is the case [2] with the debut fiction novel ‘The Notebook’ by Nicholas Sparks [3] , the prolific Nebraskan born writer, who journals a romantic love story between a couple Allie and Noah, married for five decades, set in North Carolina, partly in the 1940s. It is exquisitely told in part through the lens of extracts of a notebook, read by Noah to prompt recollections in Allie’s failing cognition.
The novel derives much of its acclaimed force through Sparks’ ability to potently evoke reader engagement with Allie and Noah and their story through a modestly colloquial and unadorned literary style. Pivotal points and moments of their relationship through to life’s end are chronicled, to sufficiently enable the reader to appreciate and empathise with the tender beauty of their final time together, in light of the rich tapestry of the joys and poignancy of their lives to that point.
Coincidentally in the 1940s, well over half a world away in the New South Wales Northern Rivers town of Murwillumbah, another love story commenced and evolved between the late Victor Charles Wade (deceased), who died on 6 November 2023 and his wife Ivy Doris Wade (Ivy), who predeceased him by 22 months. By 19 July 2018 their marriage had endured for 71 years. The deceased recorded in a Will of that date (Will), a purpose bearing upon the residue of his estate stated as “Providing the most appropriate care for my loving wife”.
The proper nature and effect of that care purpose in respect of the disposal by the deceased of his residuary estate lies at the heart of a dispute between a number of the deceased’s children. Specifically, the Court has been asked to construe the deceased’s expressed intentions in the Will in light of competing contentions as to the care purpose and also consider rectification of it — both as separate questions — in advance of the hearing of family provision claims by family members.
The detail provided of care stories or intent underpinning expressions of care varies according to purpose and setting.
In Will construction cases there are limitations in construction and rectification proceedings regarding what context the Court can consider in order to address those tasks.
The amount of contextual detail that may be not only adduced but permissibly used in Will construction cases will vary according to circumstances. Forensic choices of how much contextual material might be adduced are often vexed. Judges are not well placed to second-guess such decisions. Cases are determined on material admitted.
In this case, in sharp distinction from the detail in The Notebook, the Court has been provided with virtually no details known to the deceased of the state of health and care needs of Ivy, with the exception of the general fact that the deceased’s daughter, Dianne Vicki McKenney (Dianne), the plaintiff in the proceedings, had for “all of her adult life” cared for Ivy [4] . There was some evidence from Edward Victor Connolly (Edward), the deceased’s nephew, that Ivy might have been sick and that Dianne brought the deceased and Ivy food and cleaned their house [5] . However, the general reliability of Edward’s evidence was strongly challenged.
Counsel have well assisted me in a very challenging task of construction. Ultimately, for the reasons recounted below, I have determined essentially in the plaintiff’s favour, holding the gift of residue has not failed. Contrary to the contentions of two of the plaintiff’s siblings Richard Glen Wade (Richard) (the first defendant) and Paul David Wade (Paul) (the third defendant), there is not an intestacy of the residue.
Recent anniversary milestones in the Wade family have correlated strongly to litigious events. Within two days of the first anniversary of the deceased’s death, in rapid succession, each of Paul’s son Sean David Wade (Sean), Paul and Richard brought family provision claims by summonses [6] . Further, Dianne’s 70th birthday occurred on the date of the hearing of the separate determination.
Richard’s family provision claim has now been discontinued. It remains to be seen whether the balance of the litigation which has been a feature of the family’s current life will be in any way quelled by this separate determination of issues, such that future family anniversaries will be less litigiously afflicted.
The deceased was born on 8 September 1927 and by his death on 6 November 2023 was aged 96, having made (or left) over the prior decade, various wills or testamentary documents, relevantly, the Will and a prior Will dated 20 November 2014 (2014 Will).
Ivy (also known as Dolly) was born on 8 February 1926 and by the time of her death on 17 January 2022 was aged 95.
The deceased and Ivy married on 15 February 1947 [7] and there are four children of the marriage:
Richard born in August 1949, now aged 77;
Dianne born in September 1956, now aged 70;
Gary James Wade (Gary) born in December 1951, now aged 74; and
Paul born in August 1962, now aged 64.
The deceased had 7 grandchildren including relevantly Sean (born January 1985) now aged 41, and Dianne’s son, Jason.
Edward is currently 82 or 83 years of age. He is a retired High School teacher [8] .
For the best part of a year following the deceased’s death, litigious steps were dormant. Yet, the trio of family provision cases (in which Dianne was named as defendant) became a quartet of estate claims on 20 December 2024 with Dianne commencing proceedings seeking probate in solemn form of the Will (Dianne**’**s proceedings).
In Dianne’s proceedings, Richard was named as defendant. This was essentially on the basis that Richard opposed probate of the Will. He had earlier filed a caveat on 28 June 2024.
Dispute regarding the Will ensued for a while in Dianne’s proceedings. Richard, by a defence and cross-claim asserted that the deceased lacked capacity and did not know and approve of the Will and sought a declaration that the deceased had died intestate and in the alternative, a declaration that the Will on its proper construction, failed to effectively dispose of the residue of the deceased estate. Various amended pleadings followed.
On 23 September 2025, Paul filed an amended summons in his proceedings seeking a declaration that on the true construction of the Will, the deceased’s purported disposal of his residuary estate failed such that the residue would pass on intestacy.
On 5 November 2025, Richard, by an amended cross-claim in Dianne’s proceedings effectively abandoned his challenge in respect of the Will regarding its validity but maintained his claim for relief regarding construction of the Will.
On 16 March 2026, Slattery, J (in Dianne’s proceedings but with effect on the other proceedings) ordered that probate in solemn form of the Will be granted to Dianne.
The four associated proceedings were listed for hearing before me to take place on 12–15 October 2026. During a pre-trial directions listing on 11 September 2026, I enquired whether the construction issue could be resolved in advance of the main hearing, potentially saving court time and expense. At that stage there was no rectification claim.
On 14 September 2026, by email to my Associate, Dianne’s solicitors sought to further amend her claim to seek relief that the Will be rectified, including the time for making an application for rectification to be extended.
Following correspondence with the legal representatives for the parties, I permitted Dianne leave to further amend her claim and ordered pursuant to r 28.5 Uniform Civil Procedure 2005 (NSW) that the following claims for relief be listed for hearing before me on Thursday, 24 September 2026 as a separate question for determination, namely:
Prayer 1A in the amended summons in Paul’s claim;
Prayer 1 in the (proposed) further amended statement of claim in Dianne’s proceeding; and
Prayer 5 in the amended cross-claim in Dianne’s proceedings.
The issues raised by those separate questions are effectively as follows:
Whether (as contended by Richard and Paul), the Will fails to effectively dispose of the deceased’s residuary estate such that the residue passes on intestacy (construction claim)? (and)
Whether (as contended by Dianne), the Will ought to be rectified so that on page 2 of the Will, the words “FOR THE PURPOSE OF” are added so that they read as follows “FOR HIM TO FULFIL THE PURPOSE OF” (rectification issue)?
I directed any party (specifically Paul and Gary) who wished to take a submitting role in respect of the separate questions to notify the other parties of that and also my Associate.
Further, I made orders joining Paul and Gary to Dianne’s proceedings so as to bind them into the outcome and for the preparation of a Court Book which was provided by the parties.
The active parties on the hearing of the separate questions were Dianne (for whom Mr A Crossland of counsel appeared) and Richard (for whom Dr S Chapple SC appeared).
Ms Djukanovic of counsel also attended at the initial part of the hearing in the interests of Sean. She properly accepted that Sean did not have a particular interest on the separate questions and expressly did not seek any costs associated with her attendance.
Thus to be clear, notwithstanding Paul claimed construction relief, Paul did not actively appear on the hearing of the separate questions. I do not suggest that it was necessary for him to do so. There is no suggestion that his interests were other than as aligned with those of Richard contending for failure of the gift of residue giving rise to an intestacy.
Likewise, Gary and Sean did not appear in the proceedings.
I will cite the evidence on the hearing (as I have in part done already) by reference to the Court Book (CB), transcript pages (T) and exhibit numbers. I will refer to the oral submissions by transcript page reference and the various written submission documents as follows — Dr Chapple SC’s submissions dated 22 September 2025 and updated and consolidated on 24 September 2025 (DS) and Mr Crossland’s submissions dated 22 September 2025 and updated and consolidated on 24 September 2025 (PS) and Mr Crossland’s supplementary note regarding evidence (PSS) [9] .
MY WILL
Being of able body and sound mind this is the last Will and
Testament of me
Victor Charles WADE
[Address redacted]
in the state of New South Wales 2484 ___________/ JULY/2018
I revoke all other documents of testamentary intent previously made
by me; this is my last will and testament.
I APPOINT - Dianne Vicki MCKENNEY
of [Address redacted]
to be my Executor/Executrix and Trustee of this my Will.
After the payment of my just debts, funeral and testamentary expenses and
taxes I direct my Estate to be distributed in the following manner.
GIFTS - I give devise and bequeath the following gifts
To my son Richard, $5000.00
To my son Gary, $5000.00
To my son Paul, $5000.00
My reason being that they have been financially well provided for
throughout their life.
To my daughter Dianne, $200,000.00 for the settlement of her loans.
My reason being that this would be an equatable outcome for my four
children.
__________________ _________________ _________________
Victor Charles WADE (Witness sign here) (Witness sign here)
[Page 2]
PROVIDED HOWEVER
That if any of said children shall predecease me leaving a child or children
him or her surviving then such child or children shall take and if more than
one (1) in equal shares the share which his her or their parent would have
taken under this my Will had such parent survive me.
RESIDUARY ESTATE - And I give the residue of my real and personal
Estate to
Dianne Vicki MCKENNEY
of [Address redacted]
provided Dianne Vicki MCKENNEY survives me by more than 30 days
and if Dianne Vicki MCKENNEY does not then I give the residue of my
real and personal Estate to
Edward Victor CONNELLY
of [Address redacted]
FOR THE PURPOSE OF - Providing the most appropriate care for my
loving wife
Ivy Doris WADE
of [House address]
___________________ _________________ ________________
Victor Charles WADE (Witness sign here) (Witness sign here)
According to the inventory of property attached to the grant of probate, the deceased’s estate was comprised of the following assets:
Toyota Camry $500;
Telstra shares $9,402.13;
Various farm equipment $60,000;
Bendigo Bank Retirement Account proceeds $8,647.47;
Residence at Byangum Road, Murwillumbah (House) $1,000,000;
Land at West End Street Murwillumbah (Block) $2,725,000;
Total $3,803,549.60.
The land comprised in the Block is the subject of two titles. There had apparently been discussion as between Edward and the deceased over many years about use of the Block for a ‘Pensioner Project’, whereby the deceased wished to build housing units solely for pensioners [10] . It appears that the Block was for many years the subject of complaints that it was overgrown, unsightly, and a possible harbour for vermin [11] .
The figure in the inventory of property attached to the grant of probate issued is the figure taken from Dianne’s affidavit of executor affirmed on 25 August 2025 (the House at $1,000,000 and the Block at $2,725,000).
In a construction suit, if evidence is to be given as to the value of the deceased’s property at all, it is helpful to have evidence as the date of the Will that is the subject of the construction dispute, rather than “probate values”, years after the date of the Will. However, none of the parties adduced any evidence as to the value of the House and the Block as at July 2018, the time the Will was made.
Each of Dr Chapple SC and Mr Crossland referenced a number of principles [12] . Mr Crossland made reference to various authorities being relevantly as to [13] : (a) technique - the second and fifth of Isaac J’s principles in Fell v Fell (1922) 31 CLR 268 (Fell) at 273-274; (b) the relevance of determining a scheme - my decision in Re Estate of John Currie Docherty Hamilton [2025] NSWSC 932 (Estate of Hamilton) at [57]-[61] and Muir v Winn [2009] NSWSC 857 at [24] per Bryson AJ; (c) as to inclining against intestacy - the tenth of Isaac J’s principles in Fell (and other authorities); (d) home-made Wills - Plunkett v Field [2025] NSWSC 797 (Plunkett) and Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685 (Barnes v Pope); and (e) the armchair principle - Parry v Haisma [2012] NSWSC 290 at [10].
Both Dr Chapple SC and Mr Crossland referenced Carrington v Wallace [2019] NSWSC 1301 and Mr Crossland also referenced my decision in Reeves v Reeves [2024] NSWSC 134 (Reeves) [14] .
Mr Crossland referenced [15] Vescio v Bannister [2010] NSWSC 1274 at [12]-[15] and Rawack v Spicer [2002] NSWSC 849 at [26].
Dr Chapple SC submitted that:
the Court can rectify the will only if it is satisfied about what the testator [16] actually intended to happen to his property in that particular event [17] ;
regarding s27(1)(b) Succession Act 2006 (NSW) (Succession Act), the Court must make findings as to the content of the testator’s instructions, and then construe the Will as executed and compare its effect, according to its proper construction, with those instructions [18] ; and
although the Court must be satisfied on the balance of probabilities, the standard of proof required in the rectification of a Will is “clear and convincing proof” [19] .
In Will construction the term ‘ambiguity’ is pressed into service in quite a few different ways to describe types of construction issues [30] . This includes situations where the language of a word or a phrase is susceptible of more than one meaning when the testator could only have intended to adopt one of those meanings [31] , and also those where two parts of a document conflict (or are otherwise inconsistent) with one another. I note, but leave to one side, comments and debate in other types of construction cases as to the question of whether the term ‘ambiguity’ is properly confined to the former issue rather than referring more broadly to uncertainty or lack of harmony within the document [32] .
‘Ambiguity’ is a conclusion to be reached after consideration of evidence of context, rather than a precondition to the admissibility of evidence of context. No anterior finding that the text to be construed is ‘ambiguous’ is required before resort may be had to context [33] .
Thus, as emphasised by appellate judges, one does not, devoid of all context, simply construe a Will by reference to a supposed ‘natural and ordinary meaning’ of the words — because words do not have a ‘natural’ meaning that can be determined in isolation [34] .
Succession law, bearing upon construction of Wills distinguishes between two types of extrinsic evidence, namely ‘context evidence’ and ‘intention evidence’ [35] . The distinction between these two types of extrinsic evidence is not always clearly discernible [36] .
Context evidence in the case of Wills (otherwise referred to as ‘surrounding circumstances’ or ‘armchair evidence’) encompasses the testator’s knowledge of persons or things — such as knowledge of: his family tree; the status of family members or beneficiaries; the existence of friends or acquaintances of the same name; habits of referring to a person by nickname; and the state of his property [37] .
The reason why context evidence is admissible is more generally explained above. However, otherwise, it has been said that the Court infers that the testator had his own surrounding circumstances in mind when he made his Will and used the words in his Will with reference to those circumstances [38] .
Such evidence may be used for a number of construction purposes. First, to prove the existence of any person or property described in the Will, in order to establish the reference between the language in the Will and the outside world [39] . Secondly, to rebut the presumption that a word or phrase used in the Will bears its ordinary, or technical, meaning [40] . Thirdly, to assist in determining, in the case of ambiguity, the particular meaning the testator intended [41] . Fourthly, in the case of misdescription [42] or incomplete description (e.g. where part of the description applies to one person or thing and another part to another person or thing) [43] to seek to ascertain who or what the testator intended to refer to.
Under the general law, evidence of intention (direct evidence such as statements about who the testator wishes to inherit) is only admissible in cases of ‘equivocation’ (where a subject of disposition or the object of a testator’s bounty is described in a way that correctly identifies two or more objects or subjects) [44] .
There has been statutory modification of the admissibility of intention evidence. Section 32 of the Succession Act is in the following terms:
(1) In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will—
(a) meaningless, or
(b) ambiguous on the face of the will, or
(c) ambiguous in the light of the surrounding circumstances.
(2) Despite subsection (1), evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1) (c).
(3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
It was part of the original form of the Succession Act assented to on 27 October 2006 and which commenced on 1 March 2008 and applies to Wills made on or after that date.
Dr Chapple SC accepted that the reference in s 32(1) to “the language used in the will” could include both single words and phrases. He submitted that there is an issue as to the extent to which extrinsic evidence of intention could be deployed “to give flavour to the express words in the will” to construe the expressed intention. Specifically, he contended that the words in the Will must still receive primacy and that intention evidence cannot be used in effect to rewrite the Will. Mr Crossland did not dissent from those propositions [45] .
Textual considerations are noted below. In many cases, but not always, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text [46] . However, in some cases, whilst context will not displace the ordinary meaning of the text, it can elucidate which of two or more constructional choices is the proper construction of the testator’s expressed words. The ultimate finding that the contestable legal meaning of text is ‘clear’ reflects the outcome after consideration of context [47] .
Judges do not approach the construction questions with assumptions about the testator’s intentions [48] .
Wills are unique. Despite similar expressions used in many Wills, the context in which they are created is invariably different. Questions of construction are fundamentally fact specific. In this sense, no case can truly provide any precedent for construction of a Will that subsequently comes before the Court for consideration [49] .
Self-evidently, the whole Will must be read before finally arriving at an opinion as to the meaning of any controverted portion and to ascertain whether it contains anything to affect the meaning of the passage in controversy [50] .
Closely associated with the guide that one reads the document as a whole is the notion that the construction to be given to a particular clause may be tested in light of its coherence in respect of the document as a whole.
Textual analysis will often be assisted by searching for a ‘scheme’, ‘plan’ or ‘general arrangement’ in a testator’s dispositions of property. However, this is not the unequivocal first step or task in Will construction. Rather, it is simply one of a number of analytical or constructive tools to discern the deceased’s intention [51] .
Punctuation and where appropriate, grammatical or syntactical elements and sentence structure [52] including the use of commas [53] informs meaning, and on occasion, such can do so influentially. However, a prerequisite to relying on punctuation is being satisfied that it has been used consciously and not haphazardly [54] . There are general conventions regarding punctuation. However, there are a number of instances of grammar and punctuation in which not all such conventions are fixed and/or consistent as between style manuals and dictionaries. Australian grammatical and punctuation style manual sources include the Australian Government Style Manual [55] and the Macquarie Dictionary Grammar Guide [56] .
Text formatting such as bolding, capitalising and italicising might in some cases inform meaning. However, as with punctuation, it may not be safe to attach significance to the formatting achieved by a word processor operated by a secretary or other administrative assistant [57] , or, as in this case, by a layperson using an online form precedent.
Further, by way of example, forms of hyphens and dashes might be used in a Will. However, the caution regarding attaching significance to punctuation should be kept in mind because even hyphens and dashes are not always used conventionally (the Will here contains hyphens performing the function of an em dash).
There are differences between a ‘hyphen’ (-), ‘en dash’ (–), and an ‘em dash’ (—), giving rise to different syntactical effect.
Briefly, a ‘hyphen’ is the shortest horizontal mark on a keyboard for a computer or digital device. It joins or connects words and prefixes [58] , in particular compound words (e.g. merry-go-round) or adjectives (as distinct from closed compound words or open compound words) [59] . Non-exhaustively, hyphens are used when the last letter of a single-syllable prefix is a vowel and the word that follows begins with the same vowel, and also to link a prefix or suffix to a word to avoid a double letter or prevent a misunderstanding [60] .
An ‘en dash’ is the width of a capital letter ‘N’. It is used most often to indicate range between various matters, in particular numbers (e.g. pages 55–57), dates (August 1 – August 31), or times (6:00 a.m. – 6:00 p.m.) [61] . It is said that one should never mix ‘from’ or ‘between’ with an en dash (e.g. “She worked from 10 to 28 January”, not “She worked from 10–28 January”) [62] .
An ‘em dash’ is width of a capital letter ‘M’. It is said to be used most often to indicate a pause in a sentence and to be stronger than a comma, but weaker than a full stop or semicolon (e.g. I opened the door, and there she stood — my long lost sister) [63] . It frequently functions as a comma, colon, or parenthesis which set off extra information or introduces a clause that explains or expands upon something proceeding it [64] .
Views as to proper construction may be formed and refined by simply identifying the plausible alternative constructions and performing some testing of those constructions to arrive at a final view regarding the true construction of the expressed words [65] .
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 [66] .
Sometimes, no construction of a clause will reconcile all aspects of its meaning. However, that does not stand in the way of the Court imputing to the disputed clause that which, even if slightly imperfectly, best accords with the effect which the testator is taken to, or likely to have, intended [67] .
Sometimes, the challenge in constructional choice is determining whether a word or phrase is merely a desire or wish rather than imperative or mandatory [73] . In the realm of law and in particular Will construction, the adjectival form ‘precatory’ has been used to describe words or language that express a form of desire or wish. The noun ‘precation’ etymologically is derived from the Latin words, precation or praecautio, meaning a prayer or active supplication [74] .
The nature of precatory requests was helpfully explained by Lindley LJ in in R**e Williams at 19:
The term “precatory“ only has reference to forms of expression. Not only in wills but in daily life an expression may be imperative in its real meaning although couched in language which is not imperative in form. A request is often a polite form, of command. A trust is really nothing except a confidence reposed by one person in another, and enforceable in a court of equity. In one sense it is true to say that a trust of property cannot be created by a person who is not entitled to that property. But there is no difficulty in disposing of one’s own property upon condition express or implied that the person who takes it shall do something himself, e.g., shall dispose of his property in a particular way indicated by the owner of the property which he accepts. Moreover, a condition of this kind is enforceable in equity, and need not amount to a common ‘law condition-i.e., a condition involving a forfeiture of the property taken subject to the condition-if that condition is not performed.
Legion are the cases which have analysed gift purpose provisions.
However, particular aspects of the principle (infused with insight in respect of family dynamics) are contained in the seminal decision of Dixon J in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] HCA 22 (Countess of Bective).
His Honour observed that when a provision is made by way of gift, whether testamentary or inter vivos, directing a payment to one person and expressing a purpose beneficial to another or others, it may receive one or other of at least four different interpretations. Omitting citations and slightly reordering text, in summary, his Honour stated [75] :
First, the expression of the purpose may be taken as but a statement of the donor’s motive or of his expectation. If so, the first person takes the gift absolutely and incurs no legal or equitable obligation to fulfil the purpose.
Secondly, the purpose may be so stated as to amount to a condition upon and subject to which the first person takes the gift beneficially. By accepting it, the donee incurs an equitable duty to perform the condition which is annexed to the gift. If the condition requires a money payment, it must be made whether the property given is or is not adequate for the purpose.
Thirdly, the first person may take the gift beneficially, but the statement of the purpose, particularly if it involves the payment of money, may operate as an equitable charge thereon in favour of the other or others.
Fourthly, the direction to pay the first person may be regarded as conferring no beneficial interest upon him, and, whether he receives it strictly in the character of a trustee or in some other character such as guardian, the expression of the purpose may amount to a statement of objects to which he is bound to apply the fund.
His Honour stated that bequests and devises to parents for the maintenance and benefit of their children are from their very nature peculiarly susceptible of characterisation as per the third category. Elaborating on this, his Honour stated [76] :
Bequests and devises to parents for the maintenance and benefit of their children are from their very nature peculiarly susceptible of this interpretation. “Where a fund is bequeathed to a parent, subject to a trust to maintain and educate his children, the surplus will belong to the parent; it is a gift subject to a charge” (Spence’s Equitable Jurisdiction (1849), vol. ii., p. 466). It is a construction which, as no exact account of expenditure upon maintenance is required in equity, may be considered to effectuate the intention of a husband who devises or bequeaths property to his wife for the purpose of maintaining their children. His widow is enabled to apply the income towards their joint upkeep as a family and to continue a common establishment. If a testamentary gift is made to a parent for the benefit both of himself and of his children, it appears from the decided cases that such a construction is usually adopted. Whenever a gift is made to one person beneficially, subject to his paying money to another, the provision takes effect as a charge, notwithstanding that words of condition are used, unless an intention clearly appears that it should operate by way of condition. The second object of the disposition thus obtains proprietary and not merely personal rights and is not left in danger of losing the intended benefit through the donee’s electing to reject the gift with its attendant condition, rather than to accept it cum onere. Of the decided cases upon dispositions stating a purpose that includes the maintenance or benefit of children, the greater number gives to the provision an operation, which, under one description or another, amounts to a gift subject to a charge.
In relation to the fourth category, his Honour stated that some gifts providing for the maintenance of children also appear to have received this interpretation (going on to refer to authority) [77] .
His Honour observed that guardians or others entrusted with funds to be expended in the maintenance and support of persons under their care are not liable to account as trustees. Elaborating on this, his Honour stated [78] :
They need not vouch the items of their expenditure, and, if they fulfil the obligation of maintenance in a manner commensurate with the income available to them for the purpose, an account will not be taken. Often the person to be maintained is a member of a family enjoying the advantages of a common establishment; always the end in view is to supply the daily wants of an individual, to provide for his comfort, edification and amusement, and to promote his happiness. It would defeat the very purpose for which the fund is provided, if its administration were hampered by the necessity of identifying, distinguishing, apportioning and recording every item of expenditure and vindicating its propriety.
Although these considerations furnish an independent foundation for the general rule, yet, after all, it is a doctrine regulating the application of moneys payable under an instrument, whether a will, a settlement or an order of a Court of equity, and the operation of the doctrine must depend upon the provisions contained in the instrument, both express and implied. But the effect of the instrument will often be governed by the circumstances to which it was intended to apply, and, in particular, by a consideration of the nature of the actual abode, the condition of the household and the state of the family of the infant or other person to be maintained. Courts of equity have not disguised the fact that the general rule gives to a parent or guardian dispensing the fund an opportunity of gaining incidental benefits, but the nature and extent of the advantages permitted must depend peculiarly upon the intention ascribed to the instrument. …… Statements to be found in some authorities that any surplus remaining after adequate maintenance has been provided belongs to the person having the care of the infant or of the lunatic cannot be safely used unless careful attention is given to the scope and purpose of the instrument under which the moneys arise and the conditions to which its operation is directed. ……… But the difficulty relates to the application rather than to the nature of the rule, and in any case it is evident that to reach the conclusion that savings belong to the guardian is much easier if the allowance is meant to include some inducement to the recipient to undertake the care of the person to be maintained, or if the intention is that the guardian should be associated with a child in a mode of life, or standard of living or in the enjoyment of pursuits which, otherwise, he would not adopt. The conclusion is less easy when the fund is meant simply to provide the proper charges of the infant.
There is no equitable jurisdiction to rectify wills [80] . The response of probate law to mistakes is outlined by Leeming JA in Lewis v Lewis [81] . Statutory intervention, specifically s 27 Succession Act, now permits rectification to give effect to a testator’s intentions in specified instances which, though not unbounded, may cover a multitude of factual circumstances in the form of clerical errors and failures to give effect to the testator’s instructions [82] .
Section 27(1) of the Succession Act provides:
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because—
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if—
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.
The requisite standard of proof for determining the facts in issue is on the balance of probabilities [83] . The Court may (inter alia), in deciding whether it is so satisfied that the facts in issue are established, take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject‐matter of the proceeding; and (c) the gravity of the matters alleged [84] .
The heightened requirement for “clear and convincing proof” is preserved by the above statutory standard of satisfaction insofar as they permit the taking into account of the nature of the cause of action and bolstered by the statutory preservation of principles of equity, not excepted otherwise expressly or by necessary intendment [85] .
Provided the final distribution of the estate has not been made, the Court may extend time for making a rectification application, beyond the 12 month period from the date of the testator’s death, where it considers it is necessary to do so. The types of circumstances which, in any given case might permit a finding that an extension order is ‘necessary’ are not prescribed. Nonetheless, it is not uncommon in the law for time to be extended to do certain things to avoid an overall injustice. In Will rectification cases, an extension has been permitted in an instance where the Will does not carry out the testator’s instructions and without an extension of time, an order to give effect to the testamentary intentions, could not otherwise have been made [86] .
Mr Crossland read, without objection, three affidavits from Edward, being affidavits affirmed on 18 March 2025 (March affidavit / E1), 13 October 2025 (October affidavit / E2), and 21 September 2026 (September affidavit / E3).
Dr Chapple SC did not read any affidavits, but he did cross-examine Edward.
A small bundle of documents was tendered (Exhibit JP1) [87] . These included the Will, some handwritten letters to the children and typed letter to Sean (see below), some documents produced under a notice to produce by Paul and Edward, and finally eight title documents relating to the House and the Block (being title searches and transmission applications).
Edward was the person who drafted the deceased Will from conversations he had with the deceased.
Both proximate to, and at the time of the Will, Edward indicates that there were various discussions with the deceased. Edward deposed to these discussions in his three affidavits.
The effect of that affidavit evidence is as follows (ordered chronologically).
Edward says referencing discussions over a long period of time [88] :
I recall that I have had dozens of conversations with Uncle Vic about ‘the block’ for the Pensioner Project as he called it, as I recall that he had said to me words to the effect of “if I am able, I want to build housing units solely for pensioners there on the block as no one looks after pensioners.” I recall that it was a matter which he had discussed with me over the course of the forty year period prior to his passing in various conversations with me.”
I want you to prepare my will*.*
He said: “Dianne has been looking after me and her mother for a very long time and has done a lot more than I realized, long before her mother got sick” I couldn’t have gotten a better daughter. I have given the boys plenty over the years and they haven’t needed for anything. They now lead their own lives and have done well.”
[and]
I said: “In my will, I have everything going equally to the four kids.”
He said: “I don’t want that. I have given them a lot over the years and Dianne hasn’t gotten anything from me. It is fair for her, everything to Dianne. She has really looked after her mother and me, cooks and brings us food, cleans the house and looks after us. She is a wonderful daughter,”
I said: “Okay, do you want to leave anything to the boys?”
He said: “No, I’ve done enough for them and they are okay. I’ve told you about what I have done for them over the years.”
I said: “Do you think you should leave them something?”
He said:
I said: “No, they have been given enough and it is not fair to Dianne.”
I said: “What about leaving things to grandchildren or great grandchildren?”
He said: “No, I don’t want to do that either. I want Dianne to have it”
I said: “Okay.”
8 As part of the conversation in paragraph 33 of my affidavit with Uncle Vic, I can recall a further conversation with Uncle Vic to the following effect
He said: “Whatever happens, it goes to Dianne. She has done more than the boys have ever done for me. She’s been the best for us and she has done so much in our lives that this is the right thing to do. She gets everything else after the payments to the boys no matter what. Also, if something was to happen to Dianne, I want to make it so everything goes to you.”
When Uncle Vic referred to ‘the boys’, I understood him to be referring to his sons Richard, Gary and Paul.
I said: “You don’t need to do that, I don’t need anything.”
He said: “No, you’re my back up. You’ve been a great help as well. Dianne gets it no matter what, but if she passes before me, I want to make it so that you look after Dolly, so that she gets al! the care that she needs. I know you will look after her, while the boys will put her in a home. Promise me you will continue with the Pensioner’s project that we have discussed.”
I said: “Okay yes, I can do that”
9 The reference to the ‘Block’ for the Pensioner Project was a reference to the block of land located at 14 West End Street, Murwillumbah NSW.
10 ln the draft will, being the document I prepared following my attendance at Uncle Vic’s property as referred to above, I wrote “For the purpose of providing the most appropriate care for my wife” in the Will after the provision of the residue of the estate to Dianne and then myself in the alternative. The way i wrote it was intended to reflect what Uncle Vic had told me in the conversation in the above paragraphs, being that it was to be for the purposes of me looking after Dolly In the event that Dianne did not survive Uncle Vic. I recall that when Uncle Vic read the clauses of the Will, he said “Yes, it goes to Dianne, that’s exactly as I want it She is a wonderful daughter.”
11 I am not a lawyer. I never intended to frame the will in terms where Dianne was only to receive the majority of the estate for the purposes of looking after Aunt Dolly. My only intention was to put all of Uncle Vic’s words to paper.
12 I recall that, once we had had the conversation referred to in paragraph 33 of my previous affidavit, there was a conversation to the following effect:
I said: “Perhaps you need to explain the reasons why you are making these decisions in your will?”
He said: “Yes. Can I dictate something for you to write for me?”
I said: “Sure.”
Uncle Vic then dictated four letters, being one each to Dianne, Gary, Richard and Paul. I took down notes of what he had said and said l would type them up for him.
Edward indicates that he went home and typed up out what the deceased had said to him. After he typed it, he printed it and took the printed copy to the deceased [92] .
In or about late June to early July 2018, Edward attended at the deceased’s House again. He says they had a conversation in words to the effect [93] :
He said: “I wasn’t going to leave the boys anything, but I have spoken to a couple of people and I will leave them $5,000.00 each. I don’t want them to challenge my will. I understand if I leave them something instead .of nothing that they will be unable to challenge it. I don’t want to leave any problems for Dianne.”
and;
He said: “I don’t know what to do about Sean.”
I said: “Do you want to leave him something in your will?”
He said: “No.” I don’t want to give him anything. Linda just dumped him here and took off. He’s been more trouble than he’s worth to Dolly and me. He just lives here for free and doesn’t do anything to help Dolly and me. Can you write something for me? You know what he has been like and I will write it out”
I said: “Okay,”
I said: “I prepared a letter here for you to put in your own words about Sean.”
He said: “Thanks Ted.”
Edward stated he then handed the document to the deceased who read it out loud and said, “Thank you, this sums it up pretty well.” [95]
In Edward’s October 2025 affidavit, he elaborated on the above discussion as follows [96] :
13 On my return to the property as referred to in paragraph 34 of my previous affidavit, being on or about 8 July 2018, there was a further conversation after the conversation referred to in paragraph 34, to the following effect:
He said: “Have you done those letters for Dianne and the boys yet?”
I said: “Yes, I have them here.”
14 I then handed him four letters I had typed, per the notes I had taken during my previous visit. I handed the letters to Uncle Vic. I then observed him to read the letters. He then made comments to the effect of “Yes that’s right” and “Exactly what I want, thank you Ted.”
Annexed and marked ‘A’ are letters signed by Uncle Vic. The content of the letters are handwritten, however they match the typed copies of such letters that l provided to him as referred to earlier in this paragraph.
I said: “Do you want to sign the one for Sean too?”
He said: “No, you’ve typed it up for me.”
Earlier, I noted that Dianne had found along with the Will various notes witnessed by Mr and Mrs Woods. The evidence regarding the creation of various notes particularly typed and printed forms of them became vexed during the course of Edward’s cross-examination. I will briefly address that below. However, for present purposes it suffices to note that a number of handwritten notes were signed by the deceased on 19 July 2018. Provenance of those handwritten notes are not disputed [98] .
The content of the handwritten notes is as follows.
To Richard [99] :
To my son Richard Glen Wade:
Richard
I have substantially provided for you over your lifetime.
You have received your block of land in Wentworth Street, Murwillumbah which is assessed at current value & I have also provided numerous services when you built your house, such as goods & labour.
This letter is to provide you with the reasons, I have left my last will & testament as his written. I have gifted you money in my will.
Vic Wade
To my son Paul David Wade:
Paul
This letter to you is to say I have substantially provided for you during your lifetime with money, assets and equipment. For example, your house deposit & payments, vehicles and parts, to assist you in your earthmoving business. This letter explains the reasons I have left my last Will & Testament as it is written.
I have also gifted you money in my will.
Vic Wade
To my son Gary James Wade
Gary
I have substantially provided for you over your lifetime.
I have provided you monetary sums of one hundred and fifty thousand ($150,000) to purchase your home as part of your divorce settlement with your ex-wife Margaret.
This letter is to provide you with the reason I have written my last will & testament as it is. I have gifted you money in my will.
Vic Wade
To my daughter Diane (Wade) McKenney
I have written this letter to state I have written my last Will & Testament to provide for you.
I provided for your three brothers, Richard Gary and Paul over their [word indistinct] lifetime and I have therefore left you financially provided for, for the work, care, & support you have provided your mother and myself over our lifetime.
Vic Wade
This letter is to inform you that I have not provided you anything in my last will and testament.
I’ve provided free Board and Lodging when you were left with me and my wife when you’re younger.
You have not in any way provided in any contribution to my assets.
Edward, as noted above, was cross-examined by Dr Chapple SC. On occasions, I asked a number of questions (giving counsel opportunity to object should they wish to do so). There was brief re-examination.
Edward was asked by the deceased to draft his Will. He had a number of meetings with the deceased. He indicated that when they got to the stage that the deceased wanted to give him instructions, he wrote some abbreviated notes on a piece of paper and took the notes home. He disposed of them after he used them as a guide to type up what the deceased had requested. His recollection of events is sourced from his memory and from what he typed up including letters the deceased had requested and “most likely” by looking at the Will [103] .
Broadly speaking, Edward accepted the following regarding the March affidavit, namely:
that at the time that he prepared his affidavit he understood that there was a dispute over the interpretation of the Will [104] ;
that Dianne was defending claims by each of Richard, Paul, and Sean [105] ; and
he attempted to set out as completely and exhaustively as he could what the deceased had said about the provision that he had made for Dianne and his sons in the Will, and he took that task seriously [106] .
The typed letter to Sean was based on Edward’s knowledge and what the deceased had spoken to him about with regards to Sean [107] . Whilst Edward indicated that he had “many conversations” [108] with the deceased, he appeared to accept that the Sean letter was prepared in his own words rather than the deceased’s words but nonetheless based on what the deceased had said to him [109] .
Dr Chapple SC, did not go so far as to assert that conversations did not occur. He accepted that Edward had a number of conversations with the deceased, but rather not in the way set out in the affidavits [111] . It is appropriate to briefly record the extent to which Dr Chapple SC accepted or disputed Edward’s accounts in his affidavit evidence [112] .
In the March affidavit:
(a) [33] — the detail at CB 41 said to have occurred in a conversation in “early/June 2018” — is disputed in the sense of both whether the direct speech is accurate and the fact that there are missing details about the conversations; (b) [33] — the conversation said to have occurred in about “late June to early July 2018” at the foot of CB 41 and top of CB 42 is not disputed as recording the gist of that conversation; (c) [33] — the further “exchange” regarding Sean at the top of CB 42 - is absolutely disputed; (d) [33] — the summary of “dozens of conversations” immediately above [34] on CB 42 — Dr Chapple SC was unable comment on one way or the other, but observed that it did not seem inherently implausible; and (e) [34] — the conversation said to have happened at the property on or about 19 July 2018 — is something Dr Chapple SC contends could not have happened.
(a) [8] — the conversation at the foot of CB 46 and top of CB 47 is a reconstruction; (b) [12] and [13] — the conversations (CB 47-48) did not occur as contended; (c) [14] — the detail about Edward handing the deceased four letters that he had typed did not occur in those terms; (d) [15] — the conversation “In or about April 2022” is not challenged; (e) [16] — the conversation “In or about November 2023” is not disputed.
Dr Chapple SC identified six categories of criticism of Edward’s evidence and submitted as follows.
First, there is an inherent likelihood that Edward’s evidence was retrospectively affected well after a dispute had arisen. Specifically his October affidavit was the subject of consideration over a six month period after the filing of his March affidavit, and appeared to answer precisely the question in dispute, thus a real question arises as to whether his memory has been “overlaid…by…conscious consideration of what should have been said” [114] .
Secondly, internal inconsistencies within Edward’s evidence undermine its reliability being:
the date of Edward’s return visit in July 2018 — Edward’s March affidavit dates Edward’s return visit to the deceased as 19 July 2018, whereas his October affidavit indicates that occurred on or about 8 July 2018 [115] ;
Edward’s March affidavit records a discussion with the deceased about monetary gifts of $5,000 to his sons, yet the conversation deposed to in [8] of his October affidavit regarding Dianne had been omitted from the March affidavit [116] ;
Edward was initially not able to recall whether the conversation in [8] of his October affidavit was part of the first or second conversation he had with the deceased in late June to early July 2018, later stating that it formed part of the second conversation [117] ;
various problematic issues regarding the letter to Sean [118] ; and
issues regarding the letters to the children, noting that Edward’s evidence that he asked the deceased “Do you want to sign the one for Sean too?” [119] presupposes that the deceased had just signed the other letters. Yet there is no evidence in Edward’s affidavit that he did so and Edward in cross-examination eventually stated that the deceased did not sign those letters [120] .
Thirdly, the objective evidence regarding the creation of the typed letters to the children cuts against Edward’s narrative (which he ultimately conceded) [121] .
Fourthly, there were inconsistencies between Edward’s account and the Will that he drafted [122] . In this regard, Dr Chapple SC pointed to Edward’s evidence regarding the legacy of $200,000 to Dianne said in the Will to be as “an equatable (sic) outcome for my four children”, but which despite Edward asserting that those words had come from the deceased, do not appear in his affidavit [123] .
Fifthly, Edward’s acceptance that in his affidavits, he included only the material that he considered relevant in his conversations with the deceased, creates the difficulty that the only account of the conversation with the deceased (available to the Court) had been curated by and filtered through Edward’s own idea of relevance — such that the Court is unable to consider the statements attributed to the deceased in their full context [124] .
Sixthly, Edward’s notes of the deceased’s instructions and dictation have not been produced, and Edward’s evidence is a lay person’s recollection, some seven years after the event, of conversations he attributes to the deceased in direct speech [125] .
Edward gave his evidence in a straightforward way. There were a few occasions in which Edward paused and took some time to respond to the questions [126] . On at least two occasions when I asked him about this, he indicated that he was still thinking [127] and cogitating [128] . My pervading impression is that Edward attempted to give truthful evidence, but that at times his recollection failed him.
Edward’s March affidavit was intended to be comprehensive. Yet he was initially unsure as to why he supplemented details regarding the process of taking instructions for drafting the Will in his October affidavit [129] , later suggesting that it was not something he thought about at the time [130] . Supplementation in the October affidavit according to Edward was prompted probably by rereading information and “keeping abreast of what was happening at the time”. He denied that what he had done was reconstruct a conversation that he thought might have happened rather than actually having a recollection of the conversation happening [131] . He rejected the suggestion that he had omitted mention in his March affidavit about letters for the children because he had forgotten that the deceased had done that, but rather stated it was because “it just didn’t cross my mind at that time” [132] .
One more example is that in none of Edward’s affidavits does he recount the conversation in respect of the $200,000 gift to Dianne. He stated “I don’t have an answer for that because…I can’t remember” [133] .
It is true as Dr Chapple SC points out that in the October 2025 affidavit, Edward introduced new evidence regarding the circumstances of the making of the Will. However, in this regard I note that Edward’s March affidavit predated the raising of a construction issue in the proceedings by Paul and Richard. Edward’s October affidavit (albeit filed in Sean’s proceedings) was only filed about three weeks after Paul raised the construction issue in his Amended Summons. It does not seem to me to be particularly untoward that Edward revisited the question of what occurred in light of that.
There was particular contention regarding the typed letters. Mr Crossland submitted that the contradiction between what appeared from exhibits D1-D5 [134] (regarding document properties) and the dates on the letters was not explored nor was there evidence about the mechanism or digital process by which the matters recorded in the computer records came to be there [135] .
Dr Chapple SC submitted that each of the typed letters to Dianne, Gary, Richard, Paul and Sean were created on the evening of 17 July 2021, between 9.37pm and 10.38pm, that four were printed that evening, and the letter to Gary was never printed by Edward [136] . Precisely how the metadata was extracted and the provenance of the accuracy of exhibits D1-D5 was not, as Mr Crossland states the subject of evidence of itself. However, I confess that at first blush, Dr Chapple SC’s contention as to the creation and printing of the letters appears to be the correct.
Dr Chapple submitted that a number of consequences flowed from that, namely:
Edward’s account of a conversation in [34] of his March affidavit that he gave to the deceased a letter regarding Sean and that the deceased read it aloud and said “Thank you, this sums it up pretty well” cannot have occurred as Edward described it, although he gave it in direct speech. Ultimately, Edward conceded in cross-examination that this evidence was incorrect [137] .
Edward’s account of the process set out in [12]-[14] of his October affidavit (whereby the deceased dictated letters, Edward typed them, and Edward handed the typed letters to Victor before the Will was executed) cannot be true [138] .
Prima facie, it seems to me that the criticisms by Dr Chapple SC of Edward’s evidence have considerable force.
Edward was significantly flummoxed in cross-examination by being confronted with D1-D5 [139] . Whilst it is not necessary for me to delve into the depths of how and why Edward seemingly created digital versions of the deceased letters to his children and to Sean three years after the deceased had signed the Will, his evidence in respect of it was perplexing, indeed mystifying. Curiously, Edward did not seemingly deny the subsequent creation of the documents.
The consequence is that Edward’s evidence about having provided typed statements to the deceased and the deceased’s apparent responses to it prior to the deceased signing his Will — which evidence was part of Edward’s narrative regarding the deceased’s instructions regarding the Will — gives rise to grave doubts regarding the reliability of precisely what occurred. Edward, at one point, said that he was sure that after his conversations with the deceased (i.e. CB 41-42 [33]) he went home and typed letters that the deceased dictated and that was as true as any other evidence that he had given in the proceedings [140] .
Later, Dr Chapple SC confronted Edward with a distinction between his recollection of what had occurred in June and July 2018 and the preparation of the typed letters. The evidence was as follows [141] :
Q. Do you have a recollection of any of the conversations in June and July or are you just doing your best to work out what he would have said?
A. No. I have recollections of exactly what Uncle Vic said.
Q. How could you get it so wrong - sorry, I withdraw that. You were clear in your evidence that Victor read over each of these typed letters at the time that you gave him the draft will?
A. Yes.
Q. How could you get that so wrong?
A. By not remembering the dates and the fact that the letters had been an ongoing discussion from the time of the will. So as I could not remember exactly all of that, I put the date down at the will because the letters actually came out of the discussion from the will.
Q. When I asked you about whether or not Victor signed the letters at the time that you were discussing the will, you said yes?
A. Yes.
Q. But that can’t be true either, can it?
A. No.
Q. So you withdraw that evidence too?
A. I do.
I hasten to add that I do not find that Edward was consciously lying about his evidence regarding his discussions with the deceased and indeed Dr Chapple SC did not ask me to make such a finding [142] .
Dr Chapple SC was careful to acknowledge that acceptance of the evidence of a witness is not a binary outcome, noting that the Court may accept part of a witnesses evidence and reject another part of it [143] . The evidence of a witness may, as Dr Chapple SC states, be curated and filtered through the witness’s own idea of relevance and accordingly an incomplete narrative may deprive the Court of the ability to consider statements attributed to the deceased in their full context.
Where the Court has objective contemporaneous evidence before it (often in documentary form) from various sources, it will generally be well-placed to have good clarity regarding some aspect of context evidence including surrounding circumstances to a will.
However, in many contested Will construction cases there is a paucity of material bearing upon surrounding circumstances. The task is particularly difficult where there is little or no documentary evidence and evidence from only one witness attempting to recall events which have taken place quite a few years earlier. In such cases, rarely is the affidavit evidence a counsel of perfection.
Whilst Edward’s evidence regarding the preparation of the typed letters was mystifying, ultimately, I am not sure it has infected every skerrick of evidence given by him. It seems to me that there are some aspects of Edward’s evidence which are inherently plausible or otherwise supported or clearly consistent with other facts which I accept. In particular, I accept Edward’s snippet of evidence that Dianne cared for Ivy for most of Dianne’s adult life.
First, a meeting took place, in or about early June 2018, when Edward visited the deceased at the House and was asked to assist him with preparation of a Will.
Secondly, a meeting took place in or about late June to early July 2018.
It seems that in the process of taking instructions, there were parts of conversations in which both the deceased and Ivy were present at the same time. That fact emerged during cross examination and was not evident from Edward’s affidavits. I am satisfied that he did not include that detail because he thought it was not relevant rather than attempting to selectively conceal its mention in the affidavits [144] .
On 2 July 2018, Edward created a digital or electronic version of each of the deceased’s Will and Ivy’s Will [145] . It appears that in preparing the drafts, Edward proceeded on the basis that the deceased was the legal owner of the House and Block and that Ivy’s (then) estate comprised her personal belongings and any finances she had, although he did not ask her what they were [146] .
Certain of the words and phrases in the Will are formatted in bold type. Initially Edward had “no idea” why the “equatable outcome” [sic] phrase had been bolded by him [147] .
However, during cross-examination, it became clear that in the drafting process, Edward used a pre-prepared will form from Google (Google form) [148] . The draft Will thus was a combination of some statements drawn from that Google form and the remainder based on the deceased’s instructions. The Google form parts were not something that the deceased had asked him to include but rather he had taken from the Google form and drafted for the deceased to approve or disapprove [149] .
Specifically, it was apparent that at least some of the bolding and capitalisation formatting had been drawn from the Google form.
His evidence was:
Q. All right. So the formatting of that document, the bolding, the capitalisation, I think you indicated earlier that you had no idea why at least some of the bolding was, in fact, bold‑‑
A. No. It was - it was the way I took it from the pro forma document that I had formed it in. It’s relation to giving support or anything like that. I didn’t mean anything in relation to it. It was simply a matter of copying the document, the wording of the document and the way it was presented and then putting any information in there that Uncle Vic had given me.
Q. So the bolding and the capitalisation and, for example, what Dr Chapple, I think, described as an en dash [150] but is, in fact, a hyphen is your choice - right - based on the pro forma document you‑‑
A. Yes
Edward, in evidence and in particular during re-examination, identified parts of the Will from which wording in the form had been drawn. The gist of his evidence is as follows.
First, other than the actual name, address and date details, much of the wording in the Will had been drawn from the Google form. I have included as a coloured image below, the effect of Edward’s evidence on this. On this image, names, address and date details are highlighted in yellow and the deceased’s expressed wording (leaving aside bolding and capitalisation) is highlighted in green. The balance of the wording for the document is sourced from the Google form.
Secondly, as I understand it, Edward was not able to explain why parts of the wording in the will had been capitalised and bolded. Specifically, he had “no idea” why he had bolded the following words [151] :
My reason being that this would be an equatable outcome for my four children.
On 5 July 2018, Edward printed the electronic version of Ivy’s Will [152] . It appointed Dianne as executrix and left her the entirety of the residue of her estate.
On 6 July 2018, Edward printed the electronic version of the deceased’s draft Will [153] .
Coincidentally, also on 6 July 2026, the deceased signed a form of Enduring Power of Attorney before Patricia Mallon, a prescribed witness (a Registrar of the Murwillumbah Local Court) [154] . Edward, did not recall that the deceased had executed any form of Enduring Power of Attorney and Enduring Guardian documents [155] . It is not clear to me that Edward was involved in the preparation and execution of such documents at all.
There was a third visit by Edward to the deceased in early July when the draft of the Will was delivered. Edward says in his October affidavit that there was an attendance on 8 July 2018. However, his March affidavit suggests it was 19 July. Edward had no basis other than memory to fix those dates [156] . Dr Chapple SC appeared to accept that the third visit occurred on 8 July 2018. My sense of the matter is that it likely occurred on one of the three days between 6 to 8 July 2018.
Edward in cross-examination, regarding that third visit, stated as follows [157] :
Q. So is it the case that you were faithfully trying to record what he actually wanted in his will?
A. I put all of his words down and in the form of providing provisions along general lines I included those words for him to read when I handed him what I had typed.
Q. And did you explain that you’d included those words to him?
A. Yes.
Q. Did you explain the meaning of them?
A. I didn’t have to explain the meaning of them.
Q. Why’s that?
A. Because he understood what they were.
Edward eventually accepted that the typed letters were not provided to the deceased prior to the date of the Will and that he did not read out loud Sean’s letter and to that extent, his evidence was incorrect [158] . It seems it was not until 17 July 2021 that the typed versions of the deceased’s letters to his children and to Sean were created [159] .
Later, on or around 7 November 2023, Edward took his computer that he had used in July 2018 to LGT Computers in Queensland because his current computer was “no good” and that firm transferred the files on his computer to a laptop [160] .
Only the barest of evidence of context (surrounding circumstances) was adduced. Neither counsel, at least in their prehearing submissions, referred to more than the following:
the deceased was aged 90;
Ivy was aged 92;
the deceased had been married to Ivy for 70-71 years;
the residue of the deceased’s estate included the House and the Block — which on any view of the matter comprised by far the predominant value of the deceased’s then estate.
During the outset of the hearing, I sought to understand some simple details regarding the circumstances surrounding the Will. Counsel readily provided some details which clarified that [161] :
the deceased’s immediate prior Will (the 2014 Will) had given his estate to Ivy with the gift over to Dianne;
in 2018, Ivy was residing at the Home, living with the deceased;
Dianne had been caring for Ivy at that point of time and for some time previously; and
the Will was located by Dianne amongst the deceased’s paperwork in a filing cabinet in the Home along with the four handwritten notes.
Both counsel referenced what they described as the scheme of the Will [162] .
In my assessment, the basic scheme or structure of the Will is as follows:
an assertion of capacity in respect of a testamentary instrument;
revocation of past testamentary documents and declaration of final testamentary intent;
appointment of Dianne, as executrix;
payment of just debts, funeral and testamentary expenses and taxes;
specific gifting of monetary amounts to his children – with a proviso in addressing an event of a child predeceasing the deceased;
the disposal of his residuary estate.
In the layout of the Will, three sets of gifts (being the monetary gifts to the sons, the monetary gift to Dianne and gift over residuary gift to Edward) are all immediately followed by statements of reason or purpose. That is not the case with the first gift of residue to Dianne.
Essentially, three different plausible constructions arise in respect of the wording addressing the deceased’s residuary estate, namely that residue is given to Dianne:
beneficially, and unqualified by the Care purpose;
beneficially, but qualified by the Care purpose in favour of Ivy; and
exclusively for Ivy — such that Dianne takes no beneficial interest.
It is only on the third that an intestacy arises (such that pursuant to s 127(1) Succession Act the residue would be held for the four children).
Dr Chapple SC in his written submissions contended as follows.
The dispositive provisions of the Will are in two parts [164] .
The residuary gift was made for the purpose of providing the most appropriate care for Ivy [165] .
The Care purpose qualifies the whole of the gift in the second part of the Will – that is, the whole gift of residue (rather than just applying to the substitutional gift of residue to Edward) and is supported by the following matters [166] :
(a) at the time of making the Will the deceased’s marriage to Ivy had subsisted for 71 years and is inconceivable that he did not intend to make any provision for his wife of seven decades; (b) the structure and formatting of the clauses (including capitalising, bolding and what was described as an “em-dash” [167] ) suggests that the Care purpose was intended to apply to the whole gift of residue and was not intended simply to be ‘bolted on’ to whichever name happened to appear immediately above it, and nothing else; and (c) the wording was deliberate in a context in which the deceased, who troubled to record that his estate should ultimately secure “the most appropriate care” for his “loving wife” is unlikely to have meant that concern to bite only in the unlikely event that his daughter predeceased him.
Dr Chapple SC submitted that the handwritten letters to the children inform the specific monetary gifts but not the residuary gift [168] .
Dr Chapple SC then submitted that if the whole gift of residue is qualified by the Care purpose, a question arises as to the legal effect of that statement of purpose. He referenced Countess of Bective and stated that the more significant question is whether the testator’s expression of purpose had the effect of imposing a trust, a charge, or an equitable obligation [169] .
He contended that the deceased’s Care purpose cannot sensibly be understood as merely precatory but rather is substantive, being distinguishable (by capitalised heading) from the specific gifts in which the deceased demonstrated that he knew how to record a mere statement of motive without qualifying a gift [170] .
In particular Dr Chapple SC cited the High Court decision in Hourigan v Trustees, Executors & Agency Co Ltd (1934) 51 CLR 619 (Hourigan) and submitted that contrary to the circumstances in that case, the Will here has no language of discretion in respect of carrying out of the testator’s purpose, rather the sole object of the gift was to achieve the Care purpose expressly identified by the testator (that is, to provide “… the most appropriate care for my loving wife”). He submitted that no broader purpose is identified [171] .
He went on to submit that the gifting of residue only for that purpose, sits comfortably with the first part of the will in which the testator expressly gave small, specific legacies to his sons and a significantly larger legacy to Dianne to deliberately achieve an “equatable (sic) outcome for my four children”. He states that “It would be entirely anomalous, contrary to the scheme of the will, and make a nonsense of that explanation, for the deceased to have gone to the trouble of equalising the provision he made for his children in the first part of the will, to then undo that equalisation in the second part of his will” (equalisation argument) [172] .
Next, Dr Chapple SC stated that the above conclusion is confirmed by the identity of Edward as the substitute beneficiary. He contended that [173] the fact that:
Dianne’s son Jason was not made a substitute beneficiary of the residue suggests that she was not to receive the beneficial interest in that residue; and
a trust analysis sits more comfortably with Dianne and Edward being selected as suitable, trusted people to care for his “loving wife”, rather than as intended ultimate recipients of the testator’s bounty.
Dr Chapple SC refined and emphasised aspects of his contentions orally. In his usual way, he marshalled thoughtful and compelling arguments in support of his contentions. Ultimately, Dr Chapple SC relied on three propositions (as to construction):
the Care purpose was not precatory, but qualified the gift of residue [174] ;
the Care purpose qualified the whole of the gift of residue [175] ; and
the sole object of the Care purpose was to achieve that purpose and conferred no beneficial interest on the object (i.e. Dianne as recipient) [176] .
On the first proposition, Dr Chapple SC pointed to the five capitalised and bolded headings (I APPOINT, GIFTS, PROVIDED HOWEVER, RESIDUARY ESTATE, FOR THE PURPOSE OF) and specifically submitted that the opening four bolded and capitalised words of the Care purpose are to be accorded the same level of importance that would be consistent with the way in which other mandatory directions are given in the Will [177] .
He emphasised that the Care purpose formatted that way is more than an expression of hope or expectation, and “if that kind of watered-down language had been intended, it could have been used, in a sense as it was, on the first page of the will by reference to the various gifts where the testator is identifying his reason” [178] . He indicated that was particularly so in a context in which the deceased was married to Ivy for seven decades, yet owned the real property in his name [179] .
On the second proposition, (care purpose qualifying the whole gift of residue), Dr Chapple SC again emphasised the structure of the Will. He submitted that [180] :
the residuary clause is fitted in after the bold, capitalised heading, and we say that that bold, capitalised heading introduces the whole residuary disposition, being the gift to Diane and the substitutionary gift. The purpose is then introduced the same way, by way of a capitalised and bolded heading, and we say that the gift of residue and the identification of the purpose are separately introduced commands.
The conclusion he said which flowed from those separately introduced commands is that the Care purpose clause was intended to apply to the whole of the residuary clause [181] .
He contended that the alternative construction that the deceased troubled to record that his estate would secure the most appropriate care for his loving wife only in the event that Dianne predeceased him does not accord with objective reality [182] .
On the third proposition, (sole object of Care purpose), he submitted that the expression of purpose imposes a trust and there is no broader statement of purpose identified in the Will, such a construction being consistent with the deceased’s structure of dispositions in the gift part and residue part of the Will [183] . Finally, Dr Chapple SC reiterated his equalisation argument [184] .
Mr Crossland referenced parts of the above-mentioned material from Edward’s affidavits both in support of his submissions in respect of construction and rectification [185] .
Mr Crossland submitted by reference to the scheme of the Will [186] :
the language of the Will is ‘obscure’ in relation to what was intended by the Care purpose;
the scheme of the Will differentiated between gifts to the deceased’s sons which were limited having regard to inter vivos provision, and the gifts to Dianne;
it would be inconsistent with the scheme of the Will for Dianne’s entitlement to the gift in residue to be other than a full beneficial entitlement, or at risk of failure in the event of Ivy predeceasing the deceased; and
it would “startingly unlikely” (Muir) given the scheme of the Will, for its true construction to be one which resulted in, via intestacy, the residue being divided equally between the four children.
He made the following further submissions.
He contended that the notion that the Care purpose is precatory, without creating an obligation on the person receiving the residue. In this regard he referenced Countess of Bective [187] , citing as an example Re Hamilton [1985] 2 Ch 370 per Lindley LJ at 373 [sic] [188] .
In this regard, he disputed that any obligation was created and contended that the Care purpose applied to the gift to Dianne, the intent was to make it easier for Dianne to continue her gratuitous care of Ivy — though that does not limit the gift, or its purpose [189] .
Secondly Mr Crossland submitted that the gift of residue is an absolute gift to Dianne but qualified by a trust for Ivy [190] .
He referenced [191] the joint judgment of Dixon CJ, Fullagar J, and Taylor J in Duncan v Equity Trustees Executors and Agency Co Ltd (1958) 99 CLR 513 at 517 citing the oft-quoted words of Lord Davey in Hancock v Watson [1902] AC 14 at 22*.*
For, in my opinion, it is settled law that if you find an absolute gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin as the case may be.
(a) the gift of the residue to Dianne is capable of operating as an immediate and absolute beneficial disposition of the entire residuary estate – the reference to the ‘Purpose’ is, in terms of the structure of the will, separate and posterior;
(b) the substitutonary gift to Mr Connelly is not expressed to operate if Dianne fails to perform a trust, becomes incapable of caring for Ivy, or dies while Ivy remains alive. If Victor intended the entire residue to be held exclusively for Ivy’s care, he would not have made the gift conditional upon Dianne’s survival rather than upon the continuing need to provide care for Ivy;
(c) again, the Will makes no provision for what should happen to the surplus of the residue after Ivy’s death (in the event Victor predeceases Ivy).
Mr Crossland submitted that the presumption against intestacy applies [194] .
Mr Crossland submitted that the handwritten notes corroborate his submissions regarding the true construction of the Will [195] .
Mr Crossland addressed and disputed a number of Dr Chapple SC’s submissions. In summary, Mr Crossland’s replies were as follows.
Dr Chapple SC’s contention that it is inconceivable that the deceased did not intend to make any provision for his wife of seven decades is impermissible as it is not a submission concerned with construing the language of the Will [196] .
Dr Chapple SC’s submission that the structure and formatting of the clauses (including capitalising, bolding) suggests that the qualification (intended purpose) was intended to apply to the whole gift of residue should be rejected especially where the will was ‘home-made’, and one would not expect a professional level of attention to formatting (e.g., bolds and capitals) [197] .
Dr Chapple SC’s arguments that there was distinction between the Care purpose and a mere statement of motive without qualifying a gift is a slim basis for contending that the Care purpose imposed a trust [198] .
Dr Chapple SC’s reference to Hourigan does not assist. He contends that the residuary gift in proper context must be seen in light of Dianne’s care for her mother and any surplus would properly belong to Dianne [199] .
In oral submissions, Mr Crossland referenced a statement by the deceased deposed to in Edward’s October affidavit in or about April 2022 as reflecting the intention at the time that the capital was made. The statement is as follows [200] :
No I am happy with how it is because it all goes to Dianne, apart from the little bits that go to the boys. I am happy with the existing will.
Determination of the above issues has been very difficult. That is in part by reason of the nature of the home-made Will, the paucity of context evidence of surrounding circumstances and some difficulty with aspects of Edward’s evidence. This is one of those construction cases where there are limited or slight indicators [201] pointing to the true construction of the testator’s expressed intentions one way over the other.
Both counsel accepted that there was ambiguity as to whether the Care purpose qualified the entirety of the residuary gift or only the gift to Edward [202] .
I have anxiously considered all the submissions. However, on balance I am satisfied that on the true construction of the Will, Dianne is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue. Essentially, my reasons are as follows, structured to address Dr Chapple SC’s submissions.
Dr Chapple SC’s prime argument that the fifth bolded and capitalised wording ‘FOR THE PURPOSE OF’ has mandatory rather than precatory force is because it has like formatting structure to the four earlier bolded and capitalised headings.
In light of principles I have outlined above, a prerequisite to relying upon punctuation or formatting is being satisfied that it has been used consciously and not haphazardly [203] .
There is a nice question regarding the extent to which the deceased consciously adopted that formatting as distinct from the adopting wording which is the subject of that formatting in the Will. Frankly, I seriously doubt whether that is so in light of Edward’s evidence (which I accept) that the bolding and capitalisation and indeed the hyphen operating as an em dash was Edward’s choice based on the Google form. There is not the remotest suggestion that there was any particular discussion between Edward and the deceased about the bolding, capitalisation and the hyphen operating as an em dash (in four of the five instances of bolding, and capitalisation in the Will).
On one view, that may be the end of it. However, the deceased signed the will in that form and, expressly subject to some remarks which I will make about structure under the second of Dr Chapple SC’s propositions, I am prepared at least on this first proposition, to accept Dr Chapple SC’s submission — that the bolded and capitalised wording ‘FOR THE PURPOSE OF’ was intended to have an effect more than a mere hope or wish on the part of the deceased.
I do not accept that the Care purpose qualifies the whole of the gift of the residue.
There are two aspects around the bolding and capitalised formatting that I wish to address.
First, it seems to me that there is a difference in the scheme of the Will between topic or subject parts of the Will on the one hand with importance and reason/purpose on the other hand. Dr Chapple SC’s submissions regarding bolding and capitalising fails to distinguish between (and to some extent elides) the topic or subject parts of the Will with the separate issues of importance and reason/purpose on the other hand.
Various formatting structures are used in documents to create topic or subject headings on the one hand and to emphasise some matters within those headings on the other hand.
The five capitalised and bolded headings, whilst I accept indicate a semblance of importance, do not all perform the same function.
The scheme or structure of the Will, as I have outlined above contains six topic or subject parts of the Will namely:
an assertion of capacity in respect of a testamentary instrument;
revocation of past testamentary documents and declaration of final testamentary intent;
appointment of Dianne as executrix;
payment of just debts, funeral and testamentary expenses and taxes;
specific gifting of monetary amounts to his children – with a proviso in addressing an event of predeceasing of a child; and
the disposal of the residuary estate.
Technically, there is no uniformity to bolding and capitalisation in the Will. The following examples suffice to make the point:
Conventional hierarchical ordering would on one view give bolded and capitalised headings to each of those 6 parts and other important aspects within those parts would be given less formatting emphasis by either being only bolded or only capitalised (or perhaps being italicised). Yet the parts (i.e. (1) and (2)) dealing with assertion of capacity and revocation of past testamentary documents and testamentary intent whilst bolded are not capitalised.
There is no uniformity in bolding and capitalisation of names. On the first page, Dianne’s name, when first appearing is entirely unbolded. Her first and middle names are in lowercase. Her surname is capitalised. The sons’ names on the first page are bolded but not capitalised. Dianne’s name under the gift section is bolded but not capitalised. None of the names on the second page of the Will are bolded. Further, rather, the first and middle names are in lowercase and the last name or surname is capitalised.
The proviso at the top of the second page of the Will on Dr Chapple SC’s construction introduces substitutional provisions for the monetary gifts. Yet the proviso heading is bolded and capitalised as if it is a separate subject or topic in and of itself rather than merely introducing a substitutionary provisions of the same monetary gifts. Conventional formatting of a substitutional provision within the same topic (i.e. monetary gifts) would involve less emphasis by either being only bolded or only capitalised, instead of both. This is reinforced by the next point.
Further, there is no uniformity in the formatting of the survival provisos in the Will. The bolded and capitalised survival proviso at the top of the second page of the Will ‘PROVIDED HOWEVER’, qualifies the monetary gifts. However in the topic or part of the Will dealing with the residuary estate the survival proviso for Dianne (“provided Dianne Vicki MCKENNEY survives me by …”) contains no bolding or capitalisation.
Lastly, in light of what I have indicated above, the bolded and capitalised first four words of the care purpose ‘FOR THE PURPOSE OF’ if it truly qualifies the topic of residuary gift, would not be capitalised as if it was a topic or subject matter heading but rather might be merely only bolded or only capitalised to retain a quality of importance within the topic of residuary gift, rather than being bolded and capitalised suggestive that it had the status of a new topic.
Secondly, and in my mind more significantly, it seems to me the structure of the residuary gift differentiated between Dianne and a gift over to Edward.
The scheme of the Will links reasons for or purpose of gifts, in all cases other than the residuary gift to Dianne. The reasons for the monetary gifts to the sons and Dianne are recorded immediately underneath those gifts and their names. The Care purpose is recorded immediately beneath the name (and address) of Edward.
However, there is a specific break between the gift of residue to Dianne and the reference to Edward’s name followed by expression of Care purpose. That break is a survival proviso.
Indeed on one view, because Dianne survived the deceased by more than 30 days, the second line of the survival proviso and everything after it is simply ineffective because it only bites or is engaged if Dianne did not survive the deceased.
I do not accept the premise that the gift of residue outright to Dianne is inconceivable as a matter of construction because it makes no provision for Ivy who at that point was a wife of seven decades. Rather, part of the context was not merely that Ivy was the deceased’s wife of seven decades but that Dianne had been caring for Ivy and there was no reason to think that she would not continue to do so.
For the reasons I have explained, I reject the submission that the structure and formatting of the clauses (including capitalising, and bolding) suggests that the Care purpose was intended to apply to the whole gift of residue.
The above is entirely consistent with the deceased assuming that the status quo would continue, particularly that Dianne would continue to do what she had been doing, namely, taking care of Ivy. Post the deceased death Dianne would have as a resource, the residuary estate. Whilst some testators might have wished to formalise that, it objectively seems to me that the deceased saw no need to do that. He trusted Dianne.
The deceased, being thoughtful, addressed the possibility that Dianne might not survive Ivy (even if on one view, that was a slight risk) and, as he had earlier done in the Will, in respect of the monetary gifts, he addressed that.
His means of addressing it was to entrust Edward, who had not hitherto been caring for Ivy with the task of caring for Ivy, but in order to ensure that there was a distinction between his position and Dianne’s position, the deceased adopted the Care purpose wording. It is natural or at least plausibly explicable that the residuary gift over to Edward would be qualified by the Care purpose.
If it be the case, that I am mistaken and the Care purpose does qualify the entirety of the gift of residue, it is necessary to address Dr Chapple SC’s third proposition that the sole object of the care purpose was to achieve that purpose and conferred no beneficial interest on Dianne.
It will be recalled that Dixon J observed in the Countess of Bective that the effect of an instrument (here the Will) will often be governed by the circumstances to which it was intended to apply, and, in particular, by a consideration of the nature of the actual abode, the condition of the household and the state of the family of the infant or other person to be maintained [204] .
Dianne was caring for Ivy and seemingly for some time. Having regard to their respective ages, it seems to me that Dianne’s position was likely (and objectively) akin to the role of a type of guardian and care-giver for her mother.
Dixon J makes clear that the question of whether any surplus of monies after adequate maintenance has been provided belongs to the carer of the person in question requires careful attention to be given to the scope and purpose of the instrument under which the payment of moneys arise and the conditions to which its operation is directed.
Whilst there is no great precision about the extent of the value of the residuary fund as at the date of the Will, clearly it is a very considerable value.
Having regard to Ivy’s age at the date of the Will, the fund needed for her “appropriate care” was unlikely to be exhausted by the time of her demise assuming she lived even a few more years and survived the deceased. I accept the tenor of Mr Crossland submissions in this regard. Indeed as events turned out, she did not survive the deceased.
It seems to me that, contextualised in light of the undisputed fact of care by Dianne for Ivy, to the extent that the Care purpose qualified the gift to Dianne, by form of trust, the remainder interest of the fund was intended by the deceased to be retained by Dianne beneficially. I do not accept that the deceased intended that any remainder of the fund not used for Ivy’s care was to remain undisposed of (thus giving rise to an intestacy).
I do not suggest, as Dixon J supposed might be the case in some circumstances that the prospect of receipt of the remainder of the fund was necessary as a type of inducement to Dianne to continue care for her mother. Rather, I consider that an outcome whereby Dianne retained the balance of any fund after care of her mother was, the true meaning of the deceased’s expressed words, rather than an absence of disposition of the remainder.
It seems to me that Mr Crossland’s submissions in this regard have force. To the extent that the Care purpose applied to the gift to Dianne, the intent was to make it easier for Dianne to continue her gratuitous care of Ivy – though that does not limit the gift, or its purpose.
The answer (or one answer) to Dr Chapple SC’s equalisation argument is that the so-called equalisation was addressing inter vivos provision. It is entirely understandable that the deceased wished to make an adjustment as between the four children for provision during their lifetime. The larger monetary gift to Dianne achieved that purpose. However, once the deceased had achieved that equalisation (addressing inter vivos provision), he was entirely free to distribute the balance of his estate to whomever he wished, without any restraint of equalisation. Ivy needed care, Dianne was caring for her and had done so for all of her adult life. There is no suggestion let alone evidence that any of the sons had cared for Ivy. Understood in the above way, the deceased’s gifting of the residue to Dianne does not undermine the equalisation by way of monetary gifts, which address adjusting payments to the children in light of inter vivos provision.
No rational reason has been advanced as to why the deceased under the 2014 Will, who had given Dianne the gift over of residue of his estate, would under the Will have expressly cast the burden of care of Ivy upon Dianne but not given her the benefit of the remainder of the residue or any gift over of the residue. If anything, there was a more compelling case for Dianne to have received the remainder of residue or gift of residue because she had continued to care for Ivy in the 44 months between the date of the 2014 Will and the Will.
Next, I briefly address two submissions of Mr Crossland.
First, I do not accept Mr Crossland’s submission that the handwritten notes ‘corroborate’ a finding that the residue does not go to the sons. I accept that the handwritten notes are not inconsistent with such a construction. However, it is not clear to me how the handwritten notes corroborate (in the sense of strengthening, making more certain or confirming [205] ) his submissions. He did not explain that other than to assert “on a fair reading” of the documents, the residue does not go to the sons. It is not evident to me that that is discernible as a matter of construction from the handwritten notes.
Secondly, I do not accept that the deceased’s statement to Edward in April 2022 (almost 4 years after the deceased made the Will) that “No I am happy with how it is because it all goes to Dianne, apart from the little bits that go to the boys. I am happy with the existing will” may be permissibly used to construe the deceased’s Will.
Lastly, as is evident from what I have said, I accept Mr Crossland submissions that one leans against a construction that gives rise to an intestacy.
Mr Crossland submitted that the affidavit evidence of Edward’s discussions with the deceased [206] is not just evidence of the deceased’s intentions but, relevantly to s 27, his ‘instructions’, to the deceased [207] .
He says that if his construction submissions are rejected, the Court should rectify the will so that the word “For the purpose of” read instead “for him [Edward] to fulfil for the purpose of” as this will have the dual outcome of limiting the ‘purpose’ clause to Edward, and of ensuring that Dianne became entitled absolutely to the residue where Ivy predeceased the deceased [208] .
In relation to an extension of time, Mr Crossland submitted that the requirements of s 27(3) Succession Act are satisfied in that [209] :
the final distribution of the estate has not been made;
there is necessity for intervention in that to the extent that Edward’s evidence not reflect the deceased’s intentions and Dianne’s construction arguments are rejected, then without rectification the distribution will be radically different to what the deceased intended;
the rectification application has only emerged because of differences over the construction issue; and
no prejudice to Richard and Paul has been demonstrated.
During oral submissions Mr Crossland referenced the evidence referred to in PSS [1] (being principally E1[33] and E2[8]). He submitted that Edward was not challenged on whether the particular words referred to in PSS [1] were said [210] . However, the tenor of Dr Chapple SC’s cross-examination was to challenge more broadly Edward’s recollection of discussions with the deceased regarding the Will. I have made my findings in respect of that above.
Dr Chapple observed that (apart from the Will) the only evidence of the deceased’s intentions is the recollection of Edward as to his conversations with the deceased.
He submitted in his prehearing submissions that Edward’s evidence must be approached with particular caution [211] , in circumstances in which:
Edward’s evidence is substantially incomplete in that he does not provide his recollection of the entirety of his conversation with the deceased; and
despite what on its face appears to be a precise recollection of the words spoken by the deceased, that recollection is unsupported by any contemporaneous notes, and is given seven years after he took instructions for the Will.
He contended that the gravity of the consequences (i.e. entitlement to the whole of the residue of the estate) is relevant and that compels careful scrutiny of Edward’s evidence [212] .
In Dr Chapple SC’s updated submissions following his cross-examination of Edward, he submitted that the evidentiary basis for rectification was tenuous. He contended that Edward’s accounts regarding the typed letters when tested failed in its dates, its sequence, and in the words attributed to the deceased. As a consequence, the conversations given by Edward in the same affidavit with the same apparent precision but uncorroborated were flawed and Edward’s recollection of his 2018 conversations with the deceased is “little more than an impression from which plausible details are then … constructed” [213] .
Ultimately, Dr Chapple SC submitted that Edward’s evidence is not sufficiently complete, and is unreliable in the extreme, such that the Court cannot conclude to the requisite level of satisfaction that the Will failed to carry out the deceased’s intentions and did not give effect to his instructions [214] .
Having regard to my determination in relation to the question of construction, it is strictly speaking unnecessary for me to determine the rectification relief. Nonetheless, in case it be that I am mistaken in relation to the proper construction of the deceased will, I note the following.
Some discrete matters in Edward’s evidence are uncontested — including the fact that Dianne had been looking after or caring for Ivy for all of Dianne’s adult life. However, in light of the need for clear and convincing proof, I am not sufficiently confident on the balance of probabilities that Edward’s account of what the deceased said is reliable to the s 140 Evidence Act standard. There are serious issues regarding what Edward recalls in respect of the typed letters.
Ultimately, I am not confident that the precise rectification which is sought should be ordered.
However, in the event that I am mistaken about Edward’s evidence in that regard, I note that on the question of whether the rectification ought to be able to be bought out of time, I would have been prepared to extend time to seek the rectification order, essentially for the reasons that Mr Crossland outlined.
In the above circumstances, I have ordered (on 2 October 2026) as follows.
In Dianne’s proceedings (the Court):
Declares that upon the true construction of the Will dated 19 July 2018 of the late Victor Charles Wade (deceased), and in the events which have occurred, the plaintiff (Dianne Vicki McKenney) is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue.
Orders that prayer 1 in the further amended statement of claim be dismissed.
Orders that prayer 5 in the amended cross-claim be dismissed.
Orders that in respect of the parties’ costs of the proceedings including those associated with the separate determination hearing:
(a) the costs of the plaintiff (Dianne Vicki McKenney) be paid out of the deceased’s estate, calculated on the indemnity basis; (b) the costs of the first defendant (Richard Glen Wade) be paid out of the deceased’s estate, calculated on the ordinary basis; and (c) there be no order as to the costs of the second defendant (Paul David Wade) and the third defendant (Gary James Wade).
In Paul’s proceedings (the Court):
Orders that prayer 1A in the amended summons be dismissed.
Orders that the parties’ costs associated with the separate determination hearing in respect of prayer 1A be paid out of the deceased’s estate:
(a) in the case of the plaintiff (Paul David Wade), calculated on the ordinary basis; and (b) in the case of the defendant (Vicki McKenney), calculated on the indemnity basis.
**********
Jessamyn West, To see the dream (Harcourt, Brace and Company, New York, 1957), 39.
Sparks indicates he was inspired by his wife's grandparents who spent over 60 years together. See Nicholas Sparks, The Notebook (Web Page)https://nicholassparks.com/work/the-notebook/.
Nicholas Sparks ‘The Notebook’ (Sphere, London, 2021) – the book differs in material respects from the movie adaptation see e.g. ‘The Notebook (2004)’ IMDb (Web Page) https://www.imdb.com/title/tt0332280/.
T 19.1-.10.
CB 41[33].
Filed respectively on 4, 5 and 6 November 2025.
T 2.43.
T 10.23-.27.
Handed up during the hearing (PSS).
CB 42[33].
T 3.31-.37 - accepted by the counsel as a fact in which I could proceed.
PS [13]-[14].
PS [15]-[25], [33].
PS [26]-[30].
PS [29]-[32].
For simplicity, I will simply use the male form ‘testator’ when referring to will-makers.
Citing Rawack v Spicer [2002] NSWSC 849 at [26].
Citing Vescio v Bannister [2010] NSWSC 1274 at [14]; Singh v Singh [2018] NSWCA 30 (Singh) at [194].
Citing Singh at [192]; Bear v Bear; Jordan v Bear [2022] NSWSC 1687 (Bear) at [225].
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 at 273-274 per Isaacs J; and Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC, 416 per Lord Thankerton.
Warton v Yeo [2015] NSWCA 115 at [35] per Ward JA.
Middleton v Schofield [2022] NSWSC 1454 at [17] per Robb J.
Reeves at [378].
Theunissen v Barter (2025) 117 NSWLR 49; [2025] NSWCA 50 (Theunissen) at [85] (Kirk J).
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 (Mainteck) at [105] (Leeming JA).
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.
Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 at [83] (Edelman J) cited in Theunissen at [85] per Kirk J.
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 (Cherry) at [75]-[76] (Leeming JA).
Mainteck at [81].
G.E. Dal Pont, Interpretation of Testamentary Documents (LexisNexis, 2nd ed, 2025) (Dal Pont) at [1.1]-[1.6].
R. W. White ‘Use of Extrinsic Evidence to Construe Wills’ (Succession Law Conference, Law Society of South Australia, 15 November 2011) (White Paper) at [6], [33], [34], [56].
Newey v Westpac Banking Corporation [2014] NSWCA 319 per Basten JA at [14]; Cherry per Leeming JA at [71] (both contract cases but the point is still applicable).
Cherry at [76]–[85], especially [79] (Leeming JA), [124] (White JA) and [1] (Gleeson JA).
Theunissen at [85] (Kirk J) citing Mainteck at [75] (per Leeming JA).
White Paper at [22] citing Roger Kerridge and Julian Rivers, ‘The Construction of Wills’ (2000) 116 Law Quarterly Review 287 (Kerridge and Rivers) at 295-296.
White Paper at [25].
White Paper at [23].
White Paper at [22], [27] and at [28] citing John Ross Martyn et al, Theobald on Wills (Sweet & Maxwell, 17th ed, 2010) (Theobald) at 278.
White Paper at [29] citing Kerridge and Rivers at 295, Theobald at 277-278.
White Paper at [30],
White Paper at [34].
White Paper at [35] citing Charter v Charter (1874) LR 7 HL 364.
White Paper at [36].
White Paper at [6], [22], [24], [38]-[43]; James v Douglas [2016] NSWCA 178 at [19] per Meagher JA (Leeming and Simpson JJA at [77]-[78] agreeing).
T 4.36-6.17.
Mainteck at [74] (Leeming JA) citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255; [1998] HCA 28 at [78]; Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [65].
Mainteck at [76]-[77].
Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111 per Stanley at [32].
see Gibb-Maitland v Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579 at 586 per Rich J; [1947] HCA 35.
Justice Michael Meek, ‘Will Construction’ (Paper presented at NSW Bar Association Succession and Elder Law Committee, 22 March 2023) at [116]-[117], (Meek J Paper).
Estate of Hamilton at [59]; Goodman v Bryant [2025] NSWSC 1240 (Goodman) at [57] per Meek J (citations omitted).
NSW Trustee and Guardian v Matthews [2024] NSWSC 595 at [55].
Mainteck at [105] (Leeming JA); Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561 (Zhang) at [73]; [2016] NSWCA 370 at [73] (Leeming JA).
Mainteck at [105] per Leeming JA citing AMCI Investments Pty Ltd v Rio Doce Australia Pty Ltd [2008] QCA 387 at [31] (McMurdo P); Chalmers Leask Underwriting Agencies v Mayne Nickless Ltd (1983) 155 CLR 279 at 286 (per Brennan and Deane JJ); [1983] HCA 20 and Sammut v Manzi [2008] UKPC 58; [2009] 1 WLR 1834; [2009] 2 All ER 234 (Sammut) at [8] (per Lord Phillips of Worth Matravers delivering the opinion of the majority of the Board).
Australian Government Style Manual, ‘Grammar, Punctuation and Conventions’ (Web Page) https://www.stylemanual.gov.au/grammar-punctuation-and-conventions (AGSM).
Macquarie Dictionary, (Online, Grammar Guide) — see https://www.macquariedictionary.com.au/grammar-guide/.
Sammut at [8].
AGSM (hyphens).
Merriam Webster Dictionary (online at 5 October 2026) ‘How to Use Em Dashes (—), En Dashes (–) , and Hyphens (-)’ https://www.merriam-webster.com/grammar/em-dash-en-dash-how-to-use (Merriam Webster Guide); Grammarly ‘Hyphen vs. Dash – – — What’s the Difference?’ (Web Page) https://www.grammarly.com/blog/punctuation-capitalization/hyphens-and-dashes/ (Grammarly Guide).
AGSM (hyphens).
Merriam Webster Guide.
AGSM (dashes).
Grammarly Guide.
Merriam Webster Guide.
Boyd v Peeters [2024] NSWSC 1035 at [78].
Goodman at [58]; Hume v Perpetual Trustees Executors & Agency Co of Tasmania Ltd (1939) 62 CLR 242 at per Dixon J at 265; [1939] HCA 10 (Hume).
De Lorenzo at [37]-[40] per Leeming JA, citing Re Pulbrook; Pulbrook v Pulbrook (1937) 37 SR (NSW) 345 at 351 per Jordan CJ and Clerk v Equity Trustees Executors and Agency Co Ltd (1913) 15 CLR 625 at 632, 633; [1913] HCA 8 per Barton J (see also Griffith CJ at 630).
e.g. Macfarlane v Veale [1950] SASR 268 at 271 per Mayo J.
Plunkett at [52]–[55] (Meek J) citing, inter alia, Lewis v O’Loughlin (1971) 125 CLR 320 (Lewis) per Barwick CJ at 326–327; Menzies J at 330.
see Dal Pont at [3.3] citing, inter alia, Herbert v Badgery (1893) 14 LR (NSW) Eq 321 at 324–325 per Owen CJ in Eq. See also recently Wu v Shen; S.JP (NSW) Pty Ltd v S.JP (Aust) Pty Ltd [2026] NSWSC 1219 at [420] per Free JA.
Ibid at [3.3] citing Lewis per Menzies J at 330 and in addition Fielder v Burgess [2014] SASC 98 at [50] per Kourakis CJ.
Barnes v Pope per Robb J at [29].
Encyclopaedic Australian Legal Dictionary (Lexis-Nexis, Online) "precatory words" referencing inter alia Re Williams; Williams v Williams [1897] 2 Ch 12 (Williams).
Oxford English Dictionary (Online at 4 October 2026) ‘precation’.
Countess of Bective at 418-419.
Countess of Bective at 419.
Countess of Bective at 420.
Countess of Bective at 420-421.
Countess of Bective at 421.
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrine & Remedies (LexisNexis Butterworths, 5th ed, 2014) (MGL) at [27-005].
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 (Lewis) at [151]-[163].
Redenbach v Norris Bros Pty Ltd [2025] NSWSC 765 (Redenbach) at [28]–[46].
Evidence Act 1995 (NSW) (Evidence Act) s 140(1).
Evidence Act s 140(2).
Mark Leeming ‘The Limits of rectification’ (2023) 17 Journal of Equity 122 at 137, referencing Evidence Act ss 9, 140(2)(a), and citing Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [458]–[460]; Rawack v Spicer [2002] NSWSC 849 at [30]–[31] (per Campbell J).
Reilly v Reilly [2017] NSWSC 1419, see my comments in Bear at [236]-[240].
T 8.50.
E1 [33], CB 42.
E3 [3].
E1 [33].
E2 [8]-[12].
E2 [12]; E3 [4].
E1 [33].
E1 [34].
E1 [34].
E2 [13]-[14].
T 27.40-.44; DS [39a].
T 52.26-.47.
CB 57.
CB 55.
CB 56.
CB 58.
T 10.29-11.46.
T 11.49-12.8; DS [37a].
T 12.22-.24.
T 12.29-.43, 13.20-.22, 19.33-.36; 20.17-.23; 22.31-.34; DS [37a].
T 13.24-.41.
T 14.36.
T 15.25-.48.
T 46.26-.29.
T 50.1-.27.
CB 46.35-51.32.
T 51.33-.35.
Citing Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson v Foxman) interesting per McLelland J.
DS [39a].
DS [39b].
T 16.39-17.24; DS [39b].
DS [39c].
CB 48[14].
DS [39d].
DS [40].
DS [44].
DS [45].
DS [46].
DS [47].
T 34.6-.16.
T 24.10-.16.
T 38.9-.16.
T 17.45-.46.
T 18.25-.27; 18.29-.46.
T 18.9-.23.
T 19.26-.49.
T 21.35-22.7.
T 45.22 (Formerly MFI’s 1-5).
PSS [6].
DS [41].
DS [42b].
DS [42a-d].
T 25.22-38.27.
T 20.25-.47.
T 36.43-37.16.
T 50.25-.32.
DS [43].
T 23.43-24.24.
D2; D1.
T 24.25-.43.
T 22.15-.19.
T 23.8-.9.
T 22.43-23.13.
Sic [actually em dash].
T 22.11-.19.
D1.
D2.
D6 - Dr Chapple SC noted at the time of the tender that the form is incomplete. It has been signed by the deceased but the pages which address the part regarding the acceptance by the attorneys are not attached.
T 27.15-.22.
T 27.23-.38 (see also T 29.26-.28; T 30.15-.17; T 35.29-.31).
T 23.28-.41.
T 36.14-.28.
D3 (Sean), D4 (Dianne), D5 (Gary).
T 25.8-.17.
T 2.45-4.24, T 60.4-.6.
PS [34].
DS [27]; T 57.27-.33.
DS [18].
Ibid.
DS [19].
Dr Chapple SC later accepted it is a hyphen performing the function of an em-dash: T 55.29-56.19.
T 53.16-.32.
DS [20], [22] citing Cobcroft v Bruce [2013] NSWSC 774 at [59].
DS [21].
DS [24].
Ibid.
DS [25].
T 54.49-55.1.
T 55.3-.4.
T 55.4-.7.
T 55.13-.27.
T 56.21-.26.
T 56.26-.29.
T 56.34-.41.
T 56.43-.45.
T 56.45-.50.
T 57.1-.10.
T 57.12-.27.
Being relevantly dated 18 March 2025 at [33] and his affidavit dated 13 October 2025 at [8].
PS [34(a)-(d)].
PS [35].
PS [36]. The proper reference is In re Hamilton; Trench v Hamilton [1895] 2 Ch 370.
PS [37]-[37A].
PS [51], [53]-[56].
PS [49]-[50].
PS [51].
PS [58]-[59].
PS [42], [47], [57].
PS [8A], [9]; PSS [4]; T 61.37-62.5.
DS [11].
PS [12].
PS [38]-[41].
PS [43]-[48].
T 62.32; CB 48[15].
Harris v Ashdown (1985) 3 NSWLR 193 per Priestley JA at 204D-E.
T 4.26-.40.
Mainteck at [105]-[106].
Countess of Bective at 421.
Macquarie Dictionary (online at 5 October 2026) ‘corroborate’.
E1 [33], E2 [8].
PS [63].
PS [64].
PS [67].
PSS [2]; T 60.44-61.9.
Citing Watson v Foxman at 319.
Citing Chen v Chu [2024] NSWSC 1139 at [267] per Hammerschlag CJ in Eq.
DS [43b]citing Watson v Foxman at 319.
DS [48].
Coversheet: correction to spelling of name of counsel [8]: "Will Construction" amended to "Will construction"
(1983) 155 CLR 279
(2017) 96 NSWLR 548
(1913) 15 CLR 625
(1932) 47 CLR 417
(2020) 104 NSWLR 155
(1958) 99 CLR 513
(2017) 128 SASR 502
(1922) 31 CLR 268
(2009) 76 NSWLR 603
(1947) 74 CLR 579
(1985) 3 NSWLR 193
(1934) 51 CLR 619
(1939) 62 CLR 242
(2021) 105 NSWLR 487
(1971) 125 CLR 320
(1925) 36 CLR 60
(2014) 89 NSWLR 633
(2018) 264 CLR 541
(1998) 194 CLR 355
(2019) 267 CLR 514
(2014) 253 CLR 531
(2025) 117 NSWLR 49
(1995) 49 NSWLR 315
(2016) 93 NSWLR 561
(1998) 194 CLR 255