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Key decisions

  • Cox (Deceased) [2017] SASC 41
  • Hicks v Mater Misericordiae Ltd [2017] QSC 38
  • Glenda Phillips v James Phillips [2017] NSWSC 280
  • Smith v Smith [2017] NSWSC 408
  • Public Trustee of Queensland v Oliver [2017] QCA 73
  • Budulica v Budulica [2017] QSC 60
  • Toscano v Toscano [2017] NSWSC 419
  • Tjen v Bilic [2017] NSWSC 364
  • D16-17\116 [2017] SCTA 8

Ambiguous executor appointment clause

Chetwynd Cox completed a will kit whereby his wife and son Stephen were appointed his executors ‘but if he/she/they does not/ do not outlive me or is/are unwilling to act or incapable of acting, then I appoint’ another son Sean. His wife died before the testator. Stephen applied for a grant of probate. The court had to decide the person entitled to the grant. The Court considered that there were three possibilities: both Stephen and Sean, Stephen alone, and none because the clause was void for uncertainty (Cox (Deceased) [2017] SASC 41 at [8]). In another clause of the will the testator directed ‘my executors’ to divide the estate. The Court considered that the use of the plural expressed the intention to appoint more than one executor (at [21]). Accordingly, Stephen and Sean were jointly entitled to apply for a grant of probate (at [24]).

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