Goodman v Bryant

HIS HONOUR: A penumbral lunar eclipse occurred on 6 August 2009, [1] the same day Diane Goodman (deceased) made her last Will. Unlike the eclipse which merely lasted for a few hours and caused only slight dimming of the moon, clarity of the surrounding circumstances which led the deceased to make the Will in the form that she did remain shrouded in darkness, with only the barest details known to the Court.

Construction of the deceased’s Will is disputed and its true construction is the separate question for determination. The plaintiff (Christopher) is the deceased’s only known child. The first defendant (Mr Bryant) is the executor of the Will.

Notwithstanding the lack of detail, there are, in my estimation, just sufficient shards of light which have enabled discernment of the deceased’s intention. Ultimately, I have determined that, properly contextualised and construed, the deceased’s sole grandchild and second defendant (Luke) has an entitlement in the deceased’s estate which is a vested interest, though not yet in possession.

As will be seen below, the deceased by her Will gives the whole of her estate to her trustees to hold on trust and to divide “equally amongst such of [her] grandchildren… as survive [her] and attain the age of Twenty-five (25)”. If no grandchild “survives [her] and attains a vested interest” then the estate is given equally to the Royal NSW Institute for Deaf and Blind Children (now known as NextSense) [2] and the Royal Alexandra Hospital for Children (now known as Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) [3] (SCHN)) (together charities). Those charities are the third and fourth defendants respectively.

The specific relief sought in an amended summons is: [4]

A central issue for determination is whether, on the true construction of the Will, Luke has a vested interest in the deceased’s estate, albeit not vested in possession, or whether he has no such vested interest.

On the hearing of the matter, Mr Bilinksy of counsel appeared on behalf of Christopher and Mr Brown of counsel appeared with Mr Elliott [5] on behalf of Mr Bryant.

Each of NextSense and SCHN have been served with the amended summons. [6] In the absence of those charities taking any active role in respect of the hearing, Mr Bryant has acted as a contradictor to Christopher’s contentions regarding the true construction of the Will. [7]

Mr Brown provided a Court Book (CB) and each of the counsel provided submissions which I will respectively refer to as being ‘PS’ and ‘DS’.

The evidence was limited. At a pre-hearing listing, Mr Bilinksy indicated that he would simply rely upon the Will. Mr Brown relied on the grant of probate and a few paragraphs from a number of affidavits from each of Christopher, Luke, Mr Bryant and James Williams (a solicitor in Mr Bryant’s office). [8]

Mr Bryant, subsequent to being granted probate, conducted a thorough search of his office to locate the 2009 Will file for the deceased, but was unable to locate it. He believes it was likely destroyed after being archived for 7 years from 2009.

There is no specific occasion for me to comment upon the circumstances which have led to the absence of the Will file being before the Court. It suffices to observe that Will files may contain important contextual information.

Accordingly, solicitors who have a system for destroying files after a certain period should consider creating and preserving digital archives of Will files. Such retention may prevent costly disputes concerning construction, context or rectification.

Lord Hoffman notably said, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre”. [9]

However, the confinement of the evidence adduced as to surrounding circumstances of the making of the Will to essentially the fact that the Will was made before a solicitor and that Christopher and Luke were respectively the only child and grandchild of the deceased, left an impoverished context for construing the Will.

Concerned as I was to understand if there were further surrounding circumstances, I raised with counsel certain other factual matters that I had gleaned from materials and the file, which appeared not to be seriously in dispute but nonetheless augmented the constituent surrounding circumstances to the Will. Neither counsel indicated that there was any basis for disputing the matters that I have raised. Accordingly, I have incorporated that material in setting out the facts below. [10]

The deceased was born in Parramatta in January 1945, the final year of the Second World War.

Her parents were Florence Beryl Goodman (nee Beaumont) (Florence) and William Richard Goodman (William). Other than the fact that the deceased was born at Parramatta, there was no detail before the Court of her upbringing prior to the birth of Christopher in December 1974.

It seems the deceased did not marry. At the time of Christopher’s birth, she lived in a property at Randwick, being the residence of her mother. There is no suggestion that William was living with them at the time and it may be that he had either predeceased Florence or separated from her.

Christopher contends that he is unaware of who his father is and, at least for the purposes of this application, there is no detail which discloses that. The exact nature of Christopher’s upbringing is the subject of dispute. It is not necessary to detail the dispute, other than to observe that, in July 2019, he made a statement to the New South Wales Police alleging that from the age of about 5.5 to 6 years old (i.e. from about June/July 1980 to December 1980) his mother, the deceased, abused him, sexually and physically. His allegations of sexual abuse span approximately an 11.5-year period through to December 1991.

On 12 September 1983, Florence (who had lived with the deceased and Christopher) passed away.

In August 1995, a number of months before his 21st birthday, Christopher was attested as a probationary officer in the New South Wales Police and appears to have at that point or shortly after, ceased to live in the Randwick property with the deceased.

In November 1998, Christopher formed a relationship with a lady named Larrisa, whom he married in 2004. Christopher’s only child, and the deceased’s only grandchild, Luke, was born in December 2005. [11] Subsequently, Christopher separated from Larissa and appears in or about 2017 to have had some form of property settlement with her.

In or about March 2020, it seems that the deceased showed signs of declining mental capacity. What happened regarding the management of her affairs is not entirely clear. However, there is some material suggestive that she may have been subject to a financial management order in which the New South Wales Trustee and Guardian (NSWTG) was appointed as financial manager. There is reference to the fact that on or about 2 November 2021 the Randwick property was sold. At some point, I assume, consequent upon sale of that property or perhaps generally proximate to it, the deceased was moved to reside at the Milford House Nursing Home in Randwick where she lived her remaining days until her death on 2 March 2024.

The above detail explains the absence of the Randwick property from being an asset of the deceased’s estate and the inclusion of a nursing home bond as an asset.

According to the inventory of property attached to the grant of probate, the deceased’s estate comprised the following assets:

The deceased’s Will is brief, containing 7 clauses as follows:

On 10 July 2024, the other executor appointed under the Will, Kenneth Charles Thomas, renounced probate.

On 25 July 2024, Mr Bryant filed his application for probate. It was supported by a number of usual documents.

On 21 August 2024, a requisition was raised regarding the deceased’s capacity consequent upon a notation in the death certificate that one of the causes of death was intellectual disability “years”.

On 7 November 2024, the requisition was answered by Mr Bryant providing a letter from the deceased’s general practitioner, Dr Peter Holloway, indicating that he had initially met the deceased on 5 October 2017. In or around 27 March 2020, Dr Holloway says the deceased began showing signs of decline in her capacity. He performed an MMSE (scored 27/30), gave her a prescription for olanzapine and referred her to an acute care team on 30 March 2020.

On 16 January 2025, a grant of probate was issued to Mr Bryant.

On 20 February 2025, Christopher filed the summons in these proceedings, seeking family provision relief. Mr Bryant filed a Notice of Appearance and, on 3 April 2025, there was a first listing before Registrar Gerritsen who made directions for provision of evidence (but no affidavit in reply by Mr Bryant) and referred the matter for a mediation on or before 13 June 2025.

On 3 June 2025, the mediation took place. The mediation did not result in an agreed outcome as between Mr Bryant and Christopher, although an outcome between Luke and Christopher was proposed.

As best I can detect, by this stage, there had not been any specific issue raised as to the true construction of the deceased’s Will. This was notwithstanding that the mediation occurred some 2.25 years after the deceased’s death.

On 23 June 2025, Christopher filed a Notice of Motion seeking orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) in accordance with consent orders made at the mediation. The Notice of Motion was supported by an affidavit from Luke sworn 23 June 2025.

On 19 June 2025, James Williams, in a letter to Christopher’s solicitor, Shaun Cockle, indicated that the evidence of Christopher raises the possibility that the deceased had other children. [12] Certificate evidence available to the Court [13] indicates that the deceased is registered as the parent of Christopher only and no other children.

On 25 June 2025, seemingly consequent upon the filing of that Notice of Motion, a court listing for 26 June 2025 was vacated and the matter was stood over to 3 July 2025.

On 3 July 2025, the Acting Registrar made orders that the defendant file any evidence in reply on the Notice of Motion and the matter was stood over to 31 July 2025.

On 29 July 2025, Mr Bryant filed an affidavit in which he raised, seemingly for the first time, contentions regarding whether Luke had an entitlement which was vested in interest in the deceased’s estate.

On 31 July 2025, Registrar Gerritsen directed the parties to serve outlines of submissions and stood the matter over to 28 August 2025 to the intent that, if the matter was then ready, there would be a referral for the hearing of the Notice of Motion.

On 26 August 2025, Mr Bryant filed a summons in separate proceedings (2025/00327463) naming Christopher as a defendant and seeking both interim and final relief. In respect of the final relief, he sought judicial advice in respect of the proper construction of the Will and settlement of the family provision proceedings.

On 11 September 2025, Christopher’s Notice of Motion was referred to me for hearing. It is not necessary for me to detail certain of the exchanges that occurred on that occasion. It suffices to say that Mr Elliott who appeared for Mr Bryant opposed the motion and tendered a copy of reasons for judgment of Mahony SC DCJ delivered on 15 March 2024. Mr Elliott contended that it relevantly gave a basis for Mr Bryant to not readily agree to the proposed settlement of the family provision proceedings, but seek advice in respect of construction of the Will and settlement of the family provision claim. The following details emerged from the judgment, which details are not the subject of any real dispute.

In January 2020, the deceased (soon after her 75th birthday) was committed to stand trial in respect of 14 charges spanning the period between June 1980 and December 1991.

Between 21 July 2022 and 4 August 2022, there was a trial by jury in which the jury returned not guilty verdicts on two counts (1 and 11).

On 8 August 2022, the jury was discharged before delivering verdicts on the remaining charges, due to 5 members of the jury contracting COVID-19.

On 9 October 2023, a second trial commenced on an indictment containing 10 counts. On 19 October 2023, the deceased was acquitted of all counts.

In circumstances in which it appeared to me that, from a case management perspective, the parties would be assisted by a relatively quick determination as to the true construction of the deceased’s Will, I made directions for Christopher to file and serve an amended summons. The summons sought relief regarding the nature of the interest given under cl 3 of the Will and sought to join as respectively second, third and fourth defendants in the proceedings, Luke, NextSense and SCHN.

I directed that the amended summons be returnable before me for mention.

On a listing on 7 October 2025, Mr Bilinksy confirmed that the amended summons had been served on the additional defendants. Luke had filed a Notice of Appearance on 2 October 2025 and, despite apparently some encouragement, neither of the charities had then filed a submitting appearance or any appearance.

I made directions to enable determination of the construction issue as a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to be heard by me on 16 October 2025.

Comments and other findings set out in the reasons for judgment of Mahony SC DCJ said by Mr Bryant to bear upon Christopher’s credibility as a witness need not be determined by me nor be the subject of any further particular comment.

In law, construction is the process of ascertaining the meaning of a written document: Macquarie Dictionary, online ed.

There is only one true construction of any legal instrument, including a Will. [14]

The object of construction of a Will is to give effect to what the Will-maker intended by the words he or she used, having regard to admissible extrinsic evidence. [15]

The whole Will must be read before finally arriving at an opinion as to the meaning of any controverted portion. [16]

One of a number of analytical or constructive tools to discern the deceased’s intention [17] is the task of searching for and considering any ‘scheme’, [18] ‘plan’ [19] or ‘general arrangement’ [20] in a testator’s dispositions of property.

Ultimately, the Court does not proceed upon any decisive effect of an apparent rule of construction or upon analogies from decided cases but rather upon a proper understanding of the testator’s intention. [21]

The adjective ‘vested’ conveys the ordinary meaning of something that is settled or secure. It is defined in the Macquarie Dictionary, online ed, as:

Depending on the source of the use of the word (whether statutory or in an instrument etc) and context, the term may take on a specific meaning.

Broadly speaking, particularly in Will construction or trust law, the term is used in this first primary sense of attempting to understand whether a beneficiary or potential object of a favourable exercise of discretion by a trustee has an interest in property which is secure.

Courts and lawyers usually also address further enquiries, being when the security regarding an interest arises and how secure that interest is, relating to the second meaning of ‘vested’.

This second aspect is very helpfully explained by Campbell JA in Fairbairn:

Some gifts confer vested rights from the moment of creation, whilst others may be subject to contingencies or the fulfilment of certain conditions.

‘Vesting’ terminology varies. However, for present purposes, there are distinctions between: (a) a gift that is said to be ‘vested’ in interest and possession, such that the beneficiary has an immediate indefeasible right to the interest and enjoyment of it; (b) a gift that is said to be ‘vested’ in interest but not in possession, such that the beneficiary has an immediate indefeasible right to the interest, but no immediate enjoyment of it, enjoyment being deferred for some period of time; and (c) a gift that is said to be ‘contingent’ or ‘conditional’ such that the beneficiary has no right to the interest but may, subject to the contingency or condition, become entitled to the interest and enjoyment of it. [22]

It would not be an overstatement to say that issues regarding when a gift has vested are legion in the law and are one of the most litigated questions in Will construction cases. Leading Australian texts dealing with the construction of Wills devote significant comment to the vesting of interests: e.g. David M Haines QC, Construction of Wills in Australia (2007, LexisNexis Butterworths) (Haines) Chapter 29; John Hockley, Construction of Wills in Australia (2nd ed, 2025, LexisNexis Butterworths) (Hockley) Chapter 31; G E Dal Pont, Interpretation of Testamentary Documents (2nd ed, 2025, LexisNexis Butterworths) (Dal Pont) Chapter 14.

There are certain principles and presumptions, legal (statutory and caselaw based), linguistic and grammatical, which are either mandated or advisory for a judge in construing a Will. [23] Counsel have referred to certain presumptions regarding vesting, appearing from texts and caselaw.

Without purporting to be exhaustive or to analyse the specific application of presumptions at this point, the following may be noted:

The above matters, in particular the inclination as to early vesting, are not arbitrary principles, rather they are only applying what the Court assumes is natural in the mind of a testator—to have as much certainty about his dispositions as is consistent with his expressed wishes. [30] The rationale for the presumption has been expressed in various ways, including that it reflects the common sense assumption that a testator wishes the objects of his beneficence to benefit as early as possible. [31]

Associated with a presumption of early vesting is a related presumption that, in cases of ambiguity, words which might suggest an age contingency are not to be construed as precluding a vesting entry in interest but rather the postponement of enjoyment of the interest as vested. [32] Dal Pont comments that Master Sanderson in Wiegele v Thomson [33] cast some doubt on the enduring subsistence of the presumption. The Master suggested that there is little recent authority supportive of the presumption, referencing the 1829 decision of the House of Lords in Duffield v Duffield (Duffield) [34] and a 1999 decision of Ambrose J in Will of Zimmermann (deceased). [35]

In Duffield, Lord Eldon [36] clearly agreed with the statement of the law when pronouncing on the appeal upon receipt of the opinion from Best CJ and the panel of Judges to whom a question had been referred. Best CJ stated: [37]

The notion that absence of recent citing of legal authority might per se give reason to doubt the efficacy of the authority or principle is curious.

‘Désuétude’ is the notion or simply a state of affairs whereby certain legal principles are regarded as being lapsed or unenforceable by passing of considerable time.

It is one thing to point to isolated historic and possibly dubious authority and contend that, by dint of désuétude, it may be ignored.

It is quite another thing to suggest that authority that has been approved or referred to with apparent approval by the High Court can be so readily ignored. The abovementioned passage in Duffield has been cited by Starke J in the High Court in Hume [38] and cited more recently by the NSW Court of Appeal in 2010 in Fairbairn. [39]

Principles derived from case law or otherwise approved either expressly or impliedly by the High Court [40] or the Court of Appeal should not be thought as being readily subject to désuétude.

Christopher, (in evidence in support of his family provision claim) describes his relationship with the deceased as having been “very turbulent, difficult and a largely unhappy one”. It is not necessary for me on this application to make any specific determination regarding that.

In 2008, Christopher, having moved to live in Bourke with Larissa and Luke, invited the deceased to visit, which she did. [41] Without making any specific finding regarding the matter, I simply observe that from Christopher’s perspective, the visit did not go well. His mother stayed one night and he indicates that that is the last time that he saw his mother.

Precisely what occurred at that visit may be the subject of dispute. However, Christopher’s contention regarding the matter and relevantly that it is the last time that he saw his mother is at least consistent with the notion, relayed to Mr Bryant by the deceased, that his relationship with the deceased was “difficult”.

In or around late July or early August 2009, the deceased attended upon Mr Bryant, then a legal practitioner with the firm F.C. Bryant Thomas & Co at Rockdale, and gave him instructions to draw a Will. Little detail has been able to be provided to the Court regarding the circumstances of the making of the Will.

Mr Bryant, states as follows:

At the time the deceased made the Will, she was aged 64 and Luke was aged 3.

The reason that the deceased gives in cl 5 of the Will for not making provision for Christopher is not because she indicates she had a poor relationship with him at that time. Rather, the specified reason for making no provision for Christopher is that he has received another inheritance from “our family” and “is in a sound financial position”. Counsel were unable to shed light on what that ‘inheritance’ was.

On 26 August 2009, it appears that approximately 3 weeks later, the deceased made a power of attorney with Mr Bryant. No details are provided as to who was appointed as attorney.

The extent of the deceased’s assets at the time she made her Will is unclear. I infer (and this does not appear to be contested) that the deceased at least had inherited the Randwick property from her mother.

Mr Bilinsky made helpful submissions addressing relevant principles [42] and the construction of the Will. He contends that Luke’s rights under cl 3 of the Will have vested in interest and should not be viewed as conditional upon the satisfaction of a contingency such that: (a) the executor/trustee of the estate holds the interest until such time as Luke reaches 25, at which point, he is entitled to come into possession of his interest; and (b) Luke is able to deal with that interest, including, for example, compromising that interest. [43] In particular, he submitted that:

Mr Brown submitted (in my estimation correctly) that the gift in cl 3 is a gift to a class. [48]

Further, helpfully and in an orderly way, he submitted:

Further, Mr Brown:

Mr Brown sought to distinguish a number of cases which Mr Bilinksy had relied upon, including Hickling v Fair [1899] AC 15 at 27, Hume at 258 and 265, and Hamersley v Newton (2005) WAR 568 at 588; [2005] WASC 221. [57] However, it should be noted that Mr Bilinksy did not rely upon those cases as mandating a particular outcome, as distinct from demonstrating general principles.

Lastly, Mr Brown submitted that if the class has closed and Luke’s interest has vested in any sense, he would be able to demand that the trust be brought to an end, citing Saunders v Vautier. [58] However, Mr Bilinsky did not contend for such a position and accordingly there is no need for me to determine it.

In reply, Mr Bilinksy:

There is no dispute or, in any event, serious issue that the gift in cl 3 is a gift to class, closed upon the deceased’s death such that Luke is the only grandchild within the class. [64]

However, determination of the question of when the cl 3 interest vests has been difficult. That is in part by reason of the paucity of wording in the Will and paucity of evidence of surrounding circumstances.

This is one of those construction cases where there are only slight indicators [65] pointing to the testator’s intentions one way over the other.

I acknowledge the force of Mr Brown’s submissions that, on one view, the words “and attains a vested interest” in cl 4 might be regarded as being otiose if the survival by a grandchild of the deceased was enough to give rise to a vesting in interest, and I have anxiously considered the balance of his submissions.

However, having regard to the following matters, I do not think that the vesting in interest in cl 3 of the Will, properly construed, in light of the Will as a whole and the surrounding circumstances, is deferred until any one or more grandchild (in this case, only Luke) attains the age of 25 years, but rather is vested upon the deceased’s death.

When the Will was made, only one potential member of the grandchild class, namely Luke, was born. The deceased was aged 64, and Christopher was aged 34. Christopher had been married for approximately 4-5 years and Luke was aged 3.

The following seem to me to be material both individually and collectively (listed in no specific order).

First, under the scheme for the Will, the deceased has bypassed her son for provision. The principal provision under the Will is (subject to the vesting issue), provision to the issue of the deceased’s son, Christopher. Whilst the gift in cl 3 is a form of class gift, there was when the Will was made only Luke (then aged 3) as a potential member of that class.

Secondly, there is no particular evidence that indicates the deceased had any connection with the nominated charities.

Thirdly, considering Luke’s age at the time the Will was made, had the deceased died shortly after and the cl 3 gift was not regarded as being vested in interest but rather construed as a contingency of any grandchild attaining the age of 25, Luke’s entitlement would remain uncertain for over two decades.

There seems to be no obvious reason, disclosed in the Will nor explicable by the limited contextual material, why the deceased would have wished (in the case I have posited) for several decades to pass with no certainty as to the ultimate beneficiary. On the other hand, if the gift were construed as having been vested in interest but not in possession, the lack of certainty conundrum is resolved. Deferral of possession, at least in the case of Luke, is explicable by reference to his tender age in 2009.

Fourthly, the only power specified in the Will by the deceased is a very significant power of advancement not merely of income but also of capital. Where the testator provides the power for the trustees to advance all or any part of the expectant capital share of a beneficiary, there is a judicial inclination to regard the gift as vested in interest upon the testator’s death. [66] I raised this with counsel. [67]

Fifthly, as observed by Mr Bilinsky, on its face, the wording of cl 4 contains no age condition but rather provides for the gift over to take effect only if such grandchild fails to survive the deceased and “attain a vested interest”.

Sixthly, noting Mr Brown’s argument regarding the words in cl 4, “survives me and attains a vested interest” seems to me to be at least consistent with the deceased emphasising that the mere survival would constitute a vested interest rather than being otiose per se. On that scenario, the words would be read in the sense “survives me and thus attains a vested interest”.

This case is a salient reminder of difficulties in construction engendered by lack of clear language. Solicitors are encouraged, in taking instructions and drafting Wills, to clarify testators’ intentions regarding when a gifted interest vests in interest or possession, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’. Steps to clarify intention with the testator in this way may avoid or reduce lengthy delays in administration and unnecessary costs subsequent to the testators’ death in contests over the proper construction of the Will, thus facilitating timely and moderate costs of administration of the testators’ estates.

The Orders of the Court are: The Court