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Key decisions

  • The Estate of Cook [2022] NTSC 5
  • Kempson v Haydon [2022] VSC 30
  • Bassett v Bassett [2021] NSWCA 320
  • Hosseini v Genea Ltd [2021] NSWSC 1568
  • Re PDC [2021] NSWSC 1701
  • Turner v O’Bryan-Turner [2022] NSWCA 23
  • Re Macpherson [2022] QSC 20
  • Carr v Carr [2022] NSWSC 166

Grant of representation subject to undertakings as to construction

Grace Cooks’ last will contained two inconsistent gift provisions. The first gave the residue of the testator’s estate to Manoj Areti with a gift over to Ty Johnson if Areti predeceased the testator or was unwilling to execute the will. The second, later clause divided all the testator’s assets between Johnson as to 5% and Areti as to 95%.

In Johnson’s affidavit of executor, he disclosed the beneficiaries as himself and that he was entitled to 100% of the estate. The Court in The Estate of Cook [2022] NTSC 5 (Kelly J) observed that that outcome was unlikely to be the effect of the gift provisions in the will, when construed, as the ‘rule of despair’ favoured the latter clause if the gift provisions were genuinely irreconcilable (at [15]). The Court ordered that probate not be granted to Johnson unless he undertook to seek construction of the will and not distribute the estate except in accordance with the court’s determination (at [20]).


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