By Darryl Browne -
Key decisions
- Re Staughton; Grant v McMillan [2017] VSC 359
- Reynolds v Bonnici [2017] NSWSC 828
- Re Tang [2017] VSCA 171
- Raoul (by his tutor Karamihas) v Hanna [2017] NSWSC 728
- Gardiner v Hughes [2017] VSCA 167
- Re Anderson [2017] VSC 338
- A Ltd v J [2017] NSWSC 736
- Page v Page [2017] NSWCA 141
- Viljoen v Hayes [2017] NSWSC 801
Was a child’s step child a grandchild?
Jan and Richard Stapleton made wills in 1997. They each left the residue of their estate to their grandchildren. They had two children. At the date of the will, one was married and had two children. The other, Nigel, was single and childless. However, in 2007 Nigel married and his wife had two children.
The question of construction that arose was whether Nigel’s step-children came within the description of grandchildren in the testator’s will.
In Re Staughton; Grant vMcMillan [2017] VSC 359, McMillan J referred to NSW appellate court authorities of Harris v Ashdown (1985) 3 NSWLR 193 and Warton v Yeo [2015] NSWCA 115 where ‘children’ was said to include ‘stepchildren’. In Re Estate of Wright [2016] NSWSC 1779 ‘descendants’ and ‘children’ were found to include step-grandchildren. However, her Honour said that she needed to determine the intention of the testator as expressed in the will and in light of the circumstances (at [86]) rather than consider community standards (at [88]).
The will didn’t contain a specific textual indicator but that didn’t preclude a finding that the testator intended something other than the ordinary meaning of a word (at [91]). Evidence of family relationships after execution of the will was relevant and admissible to determine a testator’s intention (at [97]). The result was that the court construed ‘grandchild’ to include Nigel’s step children.
