NSW Trustee and Guardian v Hirsch [2013] NSWSC 1397
It is not often that a lawyer can say to his client that she is $1 million better off as a result of his work. Yet that was the happy experience we had on 24 September 2013 when we wrote to our client in Brooklyn in the State of New York, USA.
The executor of the Will made an application to the New South Wales Supreme Court to determine the proper interpretation of the Will. We represented our client who had been named in the Will.
The case concerned a Will written without the assistance of a lawyer. The executor of the Will contended that the terms of the Will were so uncertain that it was not clear whether the Willmaker intended to give anything to our client.
We contended that the Willmaker intended to give all of her property to our client apart from some small gifts to certain other persons.
We submitted to the court –
- that the Willmaker had made an error that the court should rectify, and
- that on a proper reading of the whole of the Will it was clear that the Willmaker intended to give all of her property to our client subject to a condition.
The condition was intended –
- to ensure that another person (or a member of that person’s family) did not receive the Willmaker’s property, and
- to prevent the property being taken from our client by another person (or a member of that person’s family).
The court accepted our basic contentions and determined that it was not necessary to rectify (change) the Will; that it was clear that our client was to receive the property.
The court determined –
- That the Willmaker feared the gift she intended to make under the Will may be taken from our client by another person or a member of that person’s family. The condition ensured that our client was not able to give any part of the property to the person or a member of that person’s family.
- That the executor of the Will –
- hold the property on trust for our client,
- ensure that another person (or a member of that person’s family) did not receive the Willmaker’s property, and
- pay directly what our client wanted to buy and use for herself including, for example, a new home.
Our client under the trust is able to direct the trustee to pay her bills, accounts and expenses. Although the trust arrangements impose some inconvenience, the decision is a satisfactory outcome for our client who is now able to live a more comfortable and fulfilling life.
You may follow this link http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1397.html to a copy of the actual decision of the court.
