Estate of Tanner

By Summons filed on 3 April 2025, John Andrew Tanner (the plaintiff) seeks declaratory (and other) relief regarding the proper construction of the will of the late Hilda Marion Tanner (the deceased) dated 16 December 2021 (the Will). The plaintiff is the son of the deceased. The first and second defendants, James Colin Tanner and Susan Louise Travers (together, the defendants), are the other children of the deceased, as well as the named executors of the Will. The husband of the deceased and father of the three children, Craig Owen Tanner (Mr Tanner), died on 14 May 2008.

More specifically in relation to the Summons, the plaintiff seeks the following relief:

The Summons was heard on 25 August 2025. Mr D Flaherty of counsel appeared for the plaintiff and Mr A Katsoulas appeared for the defendants. Each of the plaintiff and defendants provided written submissions (PWS and DWS respectively). Mr J Lee of counsel assisted Mr Katsoulas with the preparation of the DWS.

The plaintiff read and relied on an affidavit affirmed by the plaintiff. The defendants read and relied on two affidavits, one affirmed by the second defendant, and one affirmed by the solicitor who took instructions for the Will and who is otherwise acting for the executors in the administration of the estate.

Amongst a number of objections to the defendants’ evidence made by the plaintiff was an objection to evidence that went to the actual intentions of the deceased, for example, by way of the solicitor’s evidence of the instructions the deceased provided for the Will. After hearing argument on the issue, the evidence of actual intention was admitted into evidence for the purposes of providing “contextual background” only. This being so, in closing submissions, no party sought to rely on that evidence inconsistent with that ruling, it not being contended that evidence of actual intention came within the terms of s 32 of the Succession Act 2006 (NSW).

No witness was required for cross-examination.

In oral submissions on the morning of the hearing, for the first time the defendants sought to rely on legal principles as they relate to “hotchpot” clauses, and counsel for the defendants made oral submissions accordingly. Out of fairness to the plaintiff, I made orders that the parties provide supplementary written submissions on the “hotchpot” issue (and any other issue arising by way of reply), with the defendant’s supplementary written submissions due on 26 August 2025 at 4:00pm (DSWS), and with the plaintiff’s written submissions in reply due 27 August 2025 at 4:00pm (PSWS). Both parties provided their supplementary written submissions in accordance with the orders made.

The pertinent clauses of the Will are set out below (underlining in original):

I note that the relief sought in the Summons requests the Court to deal with the question of the plaintiff’s entitlement under the Will to the rest and residue of the deceased’s estate after the payment of “pecuniary legacies set out in clauses 3 (a), 3 (b) and 3 (c) of the Deceased’s Will” (emphasis added). The reference to a “pecuniary legacy” set out in clause [3](c) of the Will appears to be an error, as that sub-clause makes no such legacy. In any event, in his written submissions, the plaintiff made clear that the dispute was as to the plaintiff’s entitlement to an equal (1/3rd) share of the rest and residue of the estate after the payment of the pecuniary legacies set out in clauses [3](a) and [3](b) as well as reasonable administration expenses: PWS at [2.5]-[2.7].

The relief sought by the plaintiff therefore raises the following question for determination: upon the true construction of the Will of the deceased, is the plaintiff entitled to an equal (1/3rd) share of the whole of the rest and residue of the deceased’s estate without regard to the terms or directions in clause [5] (and clause [4]) of the Will?

At its highest, the plaintiff contends that the terms of clause [3](c) have a plain meaning and that the expressed intention of the deceased is clear and unambiguous. Of clause [5], he submitted that the deceased did not have the power to do what she purported to do in that clause.

The defendants contend that the Will must be looked at as a whole, and that clause [5] (and clause [4]) adjusts the gift to the plaintiff (and the first defendant) under clause [3](c) to account for advancements by the deceased and her husband during their lifetimes.

For the reasons set out below, having regard to the whole of the Will and surrounding circumstances, I accept the construction of the Will contended for by the defendants is correct. That is, the plaintiff’s entitlement to an equal, one-third share of the rest and residue of the deceased’s estate pursuant to clause [3](c) of the Will is subject to the directions in clause [5] (and clause [4]) of that Will.

The basic facts comprising the background to this application do not appear to be in dispute.

The deceased and Mr Tanner (the parents) are the parents of the plaintiff and the defendants.

In 2001, the parents were the registered proprietors of property referred to as the “Blandford Property” (and also referred to as “lot X deposited plan XXXXXXX” – see paragraph 29 below). At that time, that parcel of land was part of a property, also owned by the parents, known as “Eyton”.

By a memorandum of transfer dated 16 January 2001, the parents transferred the Blandford Property to the plaintiff and his wife (the Transfer).

The signed proforma “Transfer” document recorded that the transferors acknowledged receipt of the consideration of $100,000.

On the issue of consideration, there was no evidence before the Court that any consideration was actually paid. In his affidavit, the plaintiff simply states that “[t]he consideration recorded on the Transfer was $100,000” and does not provide any evidence as to actual payment of consideration or otherwise suggest that any consideration was actually paid.

Related to the consideration issue, and in relation to whether the Transfer was in fact a gift, the defendants made the following submission, when referring to clause [5] of the Will (TR P15 L48-49):

In this, I understand the defendants to be submitting that, in construing this Will, the Court is not required to decide whether the Transfer was actually a gift, and whether no consideration was actually paid or expected to be paid.

I accept this submission and do not propose to make any finding as to whether the Transfer in fact represented a gift. In any event, I observe that there would have been a very slim evidentiary basis on which the Court would have been able to consider the issue.

For his part, the plaintiff in his oral submissions also referred to the Transfer as a gift. To provide just two examples to make the point, his counsel stated:

I observe that whilst the plaintiff appeared to me to assume it was common ground that the Transfer represented a gift, he did not make any explicit submissions in relation to this issue nor did he put before the Court any evidence (other than the Transfer itself) going to the issue.

To repeat, I make no finding as to whether the Blandford Property was in fact a gift – that issue does not influence the resolution of this dispute.

On the same day as the Transfer was executed (16 January 2001), the parents informed the defendants that the parents had carried out the Transfer.

The plaintiff has not sold or otherwise encumbered the Blandford Property since it was transferred in 2001.

Mr Tanner made a will on 16 November 2004 (Mr Tanner’s Will).

Mr Tanner died on 14 May 2008. Probate of Mr Tanner’s Will was granted to the deceased and Graham Hook on 10 November 2008. The relevant terms of Mr Tanner’s Will provided as follows (underlining in original):

The property referred to in clause [4] of Mr Tanner’s Will is the same property referred to in clause [5] of the Will (which appeared to be common ground). As with the Will, this clause in Mr Tanner’s Will directs that the Blandford Property “is to be treated as an advancement to [the plaintiff] of his entitlement in [Mr Tanner’s] estate”, and that its value was to be “brought into account”.

As the deceased survived Mr Tanner for a period of 28 days, the whole of the estate was bequeathed to the deceased. Therefore, the terms of clause [4] did not arise for consideration at that time.

On 16 December 2021, the deceased made the Will.

The deceased died on 19 May 2024. Probate of the Will was granted to the defendants on 15 August 2024.

The legal principles to be applied by a court in the construction of a will are well settled, and have recently been summarised by Richmond J in Estate of Chaddock (Deceased) [2025] NSWSC 463 at [22]-[29], as cited by the plaintiff, and which I gratefully adopt:

Each of the plaintiff and defendants relied on the principles set out in Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 (Fell v Fell) in their written and oral submissions.

In undertaking the task of construing a will, in some circumstances a court may have regard to the “scheme” of the will. What is meant by this has been recently described by Meek J in Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932 (Hamilton) at [57]-[61] (omitting footnotes) as follows:

The doctrine of hotchpot derives from s 3 of the Statute of Distribution 1670, 22 & 23 Cha 2, c 10 in England in relation to intestacy, which provided for any land which had been advanced to a child (other than the heir at law) of an intestate during the latter’s lifetime to form the estate to be distributed to such child or children of the intestate.

As is described in the cases cited below, the doctrine required a child of an intestate who had already received a settlement or advancement to account for that benefit when the estate was distributed. The value of the prior benefit was deducted from the child’s share to ensure that all children received substantially equal portions. The doctrine operated irrespective of the intestate’s actual wishes, reflecting the equitable maxim that “equality is equity”.

The statutory hotchpot rules were repealed in England and Wales for deaths on or after 1 January 1996 by s 1, Sch 1 of the Law Reform (Succession) Act 1995 (UK) c 41, which removed ss 47(1)(iii), 49(1)(aa), 49(1)(a), 49(2) and 49(3) of the Administration of Estates Act 1925, 15 & 16 Geo 5, c 23.

In New South Wales, the rule was abolished earlier by the 1977 amendments to the pre-1978 Wills, Probate and Administration Act 1898 (NSW), which omitted the former hotchpot provisions in s 49(2)(a)(ii).

The position is now made explicit by s 140 of the Succession Act, which indicates that the doctrine of hotchpot in New South Wales does not apply in cases of intestacy. That section is set out below:

Accordingly, since 1 January 1978, the hotchpot principle has had no application to intestate estates in New South Wales. Unlike in many other jurisdictions, benefits received under a will are not brought into account in cases of partial intestacy.

In Federal Commissioner of Taxation v Lane (2020) 283 FCR 448; [2020] FCAFC 184, the Full Court of the Federal Court of Australia (Allsop CJ, with whom Perram and Farell JJ agreed) summarised the equitable hotchpot doctrine at [87]-[89] as follows:

Specifically in relation to wills, in Re Courtenay House Capital Trading Group Pty Ltd (In Liq) [2020] NSWSC 780, at [79], Rees J set out the equitable doctrine of hotchpot specifically in relation to wills. Her Honour stated:

Thus, notwithstanding the hotchpot doctrine does not apply in intestacy, testators may still incorporate hotchpot clauses in their wills.

In Re Tennant (1942) 65 CLR 473; [1942] HCA 3 (Re Tennant), Rich J stated at 482 that (footnote omitted):

Consideration of the admissibility of extrinsic evidence is an issue that often arises in will construction cases, where evidence may be admissible at general law and under statute. Recently, this issue was considered by Meek J in Reeves v Reeves [2024] NSWSC 134 (Reeves) at [377]-[383]. His Honour said as follows:

On the issue of a scheme (see above) in Reeves, Meek J also stated at [384]-[386]:

Both parties submitted that there was no ambiguity in clause [5] and, to that end, the operation of s 32 of the Succession Act was not enlivened, and the Court was not required to turn to extrinsic evidence to construe the Will.

I accept those submissions and have not had regard to evidence of the deceased’s actual intention.

Upon application of the “armchair principle”, at the time the deceased made the Will, I find that the deceased can objectively be taken to have known the following:

Included in the evidence before the Court was extrinsic evidence as to the steps taken by the executors following the death of the deceased and on obtaining a grant of probate. I note that care needs to be taken in the construction of a deceased’s will not to attribute meaning to it informed by events subsequent to its execution or, still less, steps taken or not taken in administration of the deceased’s estate by the executors: Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371 at [27] (Lindsay J).

With this in mind, I do not consider that the evidence concerning the administration of the deceased’s estate is relevant to any construction issue, nor do I consider the facts which emerge from this particular evidence to be relevant “factual circumstances” as contemplated by the “armchair” principle. No party made any submission to the contrary.

Consistent with the legal principles set out above, the task of the Court will be squarely directed to the search for the deceased’s intention, and not a search for a scheme, either as a first step or at all. Having said that, it appears clear that identification of a scheme may be one of a number of analytical or constructive tools to discern the deceased’s intentions, and, to this end, whether the deceased had a basic scheme for dealing with her estate will be considered: Hamilton at [59].

On the issue of the scheme of the Will, the defendants submitted that the scheme was clearly established and expressed in the words of the Will, being that there “must be equalisation of the inter vivos advances with the calculation of the residue” (TR P21 L11-26). I understood this submission to mean that there was to be a deduction from the plaintiff’s share of the residue by reference to the valuation of the Blandford Property that had been advanced.

For his part, on the issue of any scheme of the Will, the plaintiff cited authority that any scheme of the Will will take second place to the language of the Will itself (TR P10 L13-14). He further submitted that even though there might be a scheme, if the words say something different or contrary to the scheme, then the scheme is of little use (TR P10 L47-49).

I accept the submissions of both parties that, in effect, the intention of the testator can be derived from the words used in the Will, taken as a whole, and thus the Court is not required to seek further assistance from the scheme of the Will in order to determine the deceased’s intention.

However, to the extent it is open to me to have regard to the scheme of the Will as one of a number of “analytical or constructive tools to discern the deceased’s intention” (Hamilton at [59]), I accept that the submissions of the defendants on this issue, being that the scheme of the Will is aimed at “equalisation”, where inter vivos advances are brought into the calculation of the residue, which I accept is the effect of the “plain reading” of clauses [3](c), [4], and [5] together. In this, each of the clauses has work to do and the clauses operate together in the framework of the Will by way of direction as to how the rest and residue of the deceased’s estate is to be distributed.

The plaintiff’s submissions focus squarely on clause [3](c) and the terms “the whole of my estate” (which he says cannot include the Blandford Property), “in equal shares”, and “rest and residue”, which is said to have well-known, ordinary and natural meanings, and where the expressed intention is clear and unambiguous.

In response to the plaintiff’s focus on clause [3](c), the defendants submitted that the plaintiff’s construction of clause [5] will mean that it and, by implication, clause [4], will have no work to do and will be rendered redundant (DWS [27]).

For his part, the plaintiff submits that it is not a question of whether clause [5] has “no work to do” but rather, that the deceased has attempted to do something that she has no “power” to do, in that the property the subject of the “advancement” and referred to in clause [5] was a property she did not own or have any interest or entitlement to.

On this “power” issue, the plaintiff refers to the reference to “the whole of my estate” and submits that the whole of the estate cannot include any property to which the deceased was not entitled to nor had any interest in at the time of her death. In this, I understand the plaintiff to be referring to the terms of clause [5], which makes reference to the Blandford Property.

In relation to the “power” issue, the defendants submitted that the better construction of clause [5] is that it does not direct any interest in the Blandford Property to be dealt with in any way, but rather it “look[s] backwards” to acknowledge that a gift was made and so adjusts clause [3] (TR P16 L21-30).

The plaintiff further contends that if the deceased had indeed wished to take “into account” the land transferred to the plaintiff and his wife in 2001, then the “simplest way” to do this would have been to not leave him an “equal share”, or to have defined the term “rest and residue” to include the land that had been transferred.

To this the defendants responded that what had been suggested by the plaintiff was “just an option”, and elsewhere submitted there was no limit on what a testator can do in dealing with hotchpot clauses (or equalisation clauses, as Mr Katsoulas noted they are now often called).

The defendants accepted that the “residuary clause” (ie, clause [3](c)) did not use words like, “subject to later direction”. However, they contended that the intention was clear in any event. That is because clauses [4] and [5] specifically link the terms of those clauses to clause [3](c).

Specifically on the relevance of the case of Re Tennant to the current proceedings, and of the “hotchpot” issue, the defendants made the following submissions at DSWS [9]-[19]:

The plaintiff in PSWS does not appear to challenge the relevance of the legal principles set out in Re Tennant. Rather, he focussed his reply on factual assumptions that had been made by the defendants in this matter. To this end, the plaintiff submitted (at PSWS [9]-[12]):

I accept that if clause [3](c) was to be considered in isolation from the rest of the Will, it might well be that the “plain meaning” of that clause would support the construction of the Will contended for by the plaintiff. However, when determining the construction of a will, in addition to considering the text of the clauses centrally in issue by themselves, a court must have regard to the second “principle” set out in Fell v Fell, being that:

Having regard to this principle, when I have come to ascertain the meaning of the words and phrases used in the Will, taken as a whole in order to give effect to the intention of its framer, I am of the view that the words contained in clause [3](c) are qualified by the terms of clauses [4] and [5]. Such a construction of the Will is in keeping with the construction contended for by the defendants, which includes reference to the “hotchpot doctrine” (see DSWS) and finds support from reasoning of Dixon J in Re Tennant at 487:

Further, I do not accept the submission of the plaintiff that the deceased has no power to give the direction she did in clause [5]. In this, I accept the submission of the defendants that the deceased is not seeking to confer an interest in property that she does not own, but rather, to direct that property previously advanced be “brought into account”.

I am of the view there is no ambiguity in the words used in clause [5] and find that its terms are closely tethered both to clause [4] and clause [3](c). As to clause [3](c), that clause is expressly referenced in clause [5] and there is a clear direction in clause [5] that a certain fact (namely, the transfer of the Blandford Property to the plaintiff) should be taken to affect the operation of clause [3](c). As to clause [4], clause [5] opens with the words “I also direct” (emphasis added). The words “also direct” draw to the reader’s attention that another direction has been made – that being the one in clause [4]. Thus, there is an explicit linking between clause [4] and clause [5] – there are two directions by the testator which seem to operate together.

As to any dispute about the potential ambiguity of clause [5], the plaintiff appears to have conceded that there is no such ambiguity in his submissions.

I reject the plaintiff’s submission that clause [5] has no operation as the deceased had no power to make the direction as she did not own the property. I do not accept that, for the deceased to have made an “equalisation” or “hotchpot” clause, she was required to own the property the subject of the direction. To the contrary, I accept the submission of the defendants that if clauses [4] and [5] are not understood as legitimate equalisation clauses, those clauses would otherwise serve no purpose and would result in an inconsistency that is otherwise not apparent in the instrument (DSWS at [5]-[6]).

Having regard to the evidence before the Court and sitting in the deceased’s armchair, the deceased may be taken to have known about the Transfer in 2001 and that she was no longer the legal owner, noting also that no issue as to the deceased’s mental capacity to make the Will has been raised. Further, the Court may accept that the deceased was already familiar with equalisation clauses, noting the existence of a similar clause that existed in Mr Tanner’s Will.

As the submissions of the defendants have highlighted, and the case of Re Tennant illustrated, equalisation clauses are not uncommon and may arise in circumstances where there have been inter vivos transfers (or gifts) in the course of a testator’s lifetime. I note there has been no claim made by the plaintiff in these proceedings asserting an estoppel or any other associated claim.

In conclusion, having regard to the whole of the Will and surrounding circumstances, I accept that the construction of the Will as contended for by the defendants is the correct one. That is, that upon the true construction of the Will, the plaintiff is entitled to an equal (1/3rd) share of the rest and residue of the deceased’s estate (after the payment of the pecuniary legacies set out in clauses [3](a) and [3](b) of the deceased’s Will, and the reasonable costs of administration of the estate), subject to the terms or directions in clause [5] (and clause [4]) of the Will.

I note this conclusion is arrived at without having regard to the scheme of the Will. Neither party contended that the Court was required to consider the scheme of the Will as part of its construction task. However, to the extent the Court may have regard to the scheme of the Will as one of a number of analytical or constructive tools to discern the deceased’s intention, I am of the view that any analysis of the scheme of the Will would, in any event, support the construction of the Will as contended by the defendants.

In this, I am of the view that the scheme of the Will discloses an intention of the deceased to provide for her children equally, however that what was “equal” was only to be arrived at once regard is had to the whole of the structure of the Will, with clause [3](c) providing for a starting point, and clauses [4] and [5] providing for the extent to which the provision in clause [3](c) is qualified.

I note that in PSWS at [9]-[11], the plaintiff raises the issue of assumptions that had been made as to whether there had been an “advancement” or “settlement” or “gift”, and also refers to the “uncontested evidence” that the receipt of the $100,000 had been acknowledged, and that the “Directions” in clause [5] did not take account of the $100,000 “the receipt of which was acknowledged in 2001”.

To repeat what I stated in [19] for abundant clarity, there was no evidence before the Court that any consideration was in fact paid for the Transfer. The plaintiff’s evidence as to what, if any, consideration was paid went no further than his statement that “[t]he consideration recorded on the Transfer was $100,000”. I do not read into this statement a suggestion that any consideration was actually paid.

In contrast to the plaintiff’s case prior to his written submissions in reply being provided, which, as I have said, did not go far in proving one way or the other whether the plaintiff paid consideration, PSWS [9]-[11] appears to invite an inference that consideration was actually paid. This is particularly so at PSWS [10], where the plaintiff states that “the uncontested evidence is that the land was transferred to the Plaintiff and his wife in 2001 for a stated consideration of $100,000.00 the receipt of which was acknowledged by the Deceased and her late husband” (emphasis in original).

I do not propose to deal with these submissions to the extent that I might otherwise have been required to deal with all of the plaintiff’s submissions.

These contentions were raised for the first time by the plaintiff in written submissions in reply, which were provided two days following the hearing of the matter. The defendants have had no opportunity to respond to these contentions. At no point before the plaintiff’s written submissions in reply, either in written submissions or in the course of the hearing itself, did the plaintiff seek to suggest the consideration recorded on the Transfer was actually paid. From the perspective of procedural fairness alone it would not be appropriate for the Court to engage with this part of the plaintiff’s submissions, in circumstances where the plaintiff has had ample opportunity to otherwise fairly and explicitly raise this issue.

I add, however, that to the extent that the plaintiff refers to “uncontested evidence” that “the land was transferred to the Plaintiff and his wife for a stated consideration of $100,000 the receipt of which was acknowledged by the Deceased and her late husband” (emphasis in original), I do not accept the accuracy of the reference to “uncontested evidence” nor do I make the inherent inference apparently sought that the consideration was actually paid.

As set out above at [18]-[19], there is no evidence before the Court that any consideration was actually paid. Further, the plaintiff appeared to have used the term “gift” in association with reference to the Transfer in the course of his oral submissions.

The “Factual background” section of this judgment sets out the extent to which any evidence before the Court is “uncontested”.

Further, and in any event, I accept the submissions of the defendant that whether the deceased was right or wrong when she referred to the Transfer as a “gift” is immaterial.

The usual rule as to costs is that they follow the event, unless the Court is satisfied that some other order is appropriate: Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

I have determined that the construction of the Will as contended by the plaintiff fails, and that he therefore is not entitled to the relief sought in the Summons. As such, I am satisfied that the plaintiff should pay the costs of the defendants and that there is no reason to depart from the usual rule as to costs.

For the reasons set out above, the Court makes the following orders: