Estate of the late John Currie Docherty Hamilton

HIS HONOUR: Greenock is a historic industrial town by the Firth of Clyde, 25 miles west of Glasgow. It grew from a fishing community to become the site of the first dock on the Clyde in 1711. [1] It is the birth place of the late John Currie Docherty Hamilton (deceased) born in September 1946.

Reputedly, the town is home to the world’s first “Burns Club”, a club devoted to celebrating the life and works of the famous Scottish poet and lyricist, Robert Burns, with many of the founding members having known Burns himself. Burn’s love, Mary Campbell (Highland Mary), who died in the town, is said to be buried in the Greenock cemetery. [2]

Whilst the deceased could apparently speed read, his composing skills, at least when it came to making his last Will, lacked the sublime expressive craft of Burns.

The Court today is determining, as a separate question, the true construction and possible rectification of the deceased’s last Will, which has been sought as a prayer for relief in one of three proceedings. Two of the proceedings relate to the deceased’s estate and one relates to the estate of his late brother, Robert. Other claims, including family provision claims, remain to be determined, though the parties have anticipated that their outcomes will be impacted by the initial decision regarding the proper construction of the deceased’s Will.

Ultimately, I have determined that properly contextualised and construed, the deceased’s rudimentary testamentary words reveal a clear dispositive intent and I reject a counter case of ademption with the consequence of intestacy regarding the deceased’s last residence, a property at Terrigal (Terrigal property).

The deceased and his family emigrated to Australia in or about 1951 to 1952 when the deceased was aged 5. [3]

None of his upbringing or why he and his birth family ventured a life in Australia is readily disclosed by the evidence, which for Will construction purposes is unsurprising. The deceased was an ambulance officer by profession. [4] Though living to the relatively young age of 71 (well under four score years), the deceased’s life was filled with familial and personal tragedy.

Each of the deceased’s wife and three of his four children predeceased him and he, himself, in later years suffered from prostate cancer and the devastating effects of motor neurone disease to which he succumbed, compounded with the effects of a COVID-19 lung infection. [5]

The deceased was one of three children of the late Arthur Hamilton and Mary Welsh Hamilton.

The deceased had two brothers, Robert and Richard, who both predeceased him. Robert appears to have had close involvement in both the deceased’s life and that of the deceased’s surviving daughter and the plaintiff, Terrie.

The deceased married Pamela-Lee Henry in or about 1966. The deceased had four children, Terrie (born in September 1970, now aged 54), Aaron, Glenn and Leanne.

Glenn, it is said, died in infancy.

Aaron (Terrie’s younger brother) died aged 26 in a car accident in July 2000. [6] There is some dispute as to whether Aaron had any children or not. The Court was informed that Aaron spent time in the UK and in Australia and, whilst he was in Australia, he had a relationship with a Joanne Muirhead. Kieren Muirhead (the sixth defendant) is Joanne’s child. Kieren contends he is Aaron’s son. There has been some DNA testing which is inconclusive or perhaps, on another view, indicative that it is less likely that he is Aaron’s son. However, there is no occasion or need for me to determine that question.

Leanne (an elder sister to Terrie) had a relationship with Kevin Reid. There are four children of that relationship, namely Chantelle, Marc, Callum and Angus. Leanne died on 21 July 2017.

Terrie has two children, being Bowie born in August 1996 from her relationship with Leslie Bicklie [7] (which appears to have lasted for barely a year in or about 1995 to 1996) and Bianca, who was born in May 2000 from her relationship with Aaron Cooper. [8]

The early background of the deceased’s movements in Australia is not entirely clear. Nonetheless, prior to 1975 he appears to have lived with family in Queensland. In about 1975, they moved to live in a property at Balgowlah and continued to live there until about 1991. In 1991, they moved to premises at James Street in North Manly and lived there until about 1994. The next movement appears to be to another location in Manly and then, ultimately, in about 1999, the deceased purchased a residence in Allambie Heights (Allambie Heights property).

By that stage, the deceased’s wife had predeceased him and his residence in the Allambie Heights property was with Terrie, Bianca and Bowie.

Some of the financial context regarding the deceased’s and Terrie’s residence at the Allambie Heights property is revealed in Terrie’s evidence. She states:

In various parts of her affidavits, Terrie provides some background to the events from the time of the purchase of the Allambie Heights property to the making of the Will by the deceased in 2019. I set out some of that detail from 2015, rearranged to be in chronological order:

Subsequent to the deceased making his Will, the Allambie Heights property was sold and the Terrigal property purchased. Terrie states:

On 25 September 2020, the deceased sold the Allambie Heights property for $1.6m. There was a mortgage to Heartland Senior Finance (HSF) for $482,158.75. [26]

Terrie also gave evidence that:

It is clear enough that the deceased prepared his Will using what is described as a “plain English Will kit”. A form of the type of Will kit was adduced.

Notwithstanding that Will kits are designed with the laudable intention of permitting a testator to inexpensively prepare a document to effectively dispose of his or her estate, there are risks which are often materialised that the testator does not do so effectively by the use of such kits.

The Will kit brochure in evidence bears the bold claim “The Gold Standard in Will Kits”. The Will kit, several lines under the heading “write” provides “After you have left a particular gift, you should include a gift for what is left over, for example: I give the rest of my estate to my son Thomas Rottler of 44 Kewmeadows Street, Carlmond, Queensland.” However, the notion of residue of the estate is not expressly referred to. It is certainly not highlighted within the document, nor does the actual pro forma Will form, under the heading “Give”, contain any prompt or reminder to the testator of the importance of disposing of all of the deceased’s estate.

The Will in question contains some infelicities in both spelling and wording. The form of the Will is annexed to the end of this judgment as Annexure A.

The deceased’s estate as at the time of his death comprised the following assets:

On 2 February 2024, probate of the deceased’s estate was granted to Mr Hutchinson. [30] This appears to have been upon the premise that he claimed to be the person answering the description of being the substituted executor appointed by default as the “senior lawyer of The Probate Professionals or its successor”. [31]

On 9 April 2024, letters of administration in Robert’s estate were also granted to Mr Hutchinson.

The events of the deceased’s and Robert’s death have given rise to at least three sets of proceedings affecting their estates.

On 2 June 2023, Bianca filed a summons seeking essentially family provision relief in respect of Robert’s estate. On 1 August 2023, her summons in that matter was amended to name Mr Hutchinson as the appropriate defendant.

On 27 November 2023, Terrie commenced proceedings by summons seeking construction and rectification of the deceased’s Will, as well as a family provision claim on the deceased’s estate.

On 5 December 2023, Bianca commenced separate proceedings seeking family provision relief in respect of the deceased’s estate.

On 7 December 2023, on a listing of the matters before me, I noted the associated proceedings and ordered, subject to further order, that the associated proceedings be dealt with contemporaneously with evidence in one being evidence in the other.

The associated proceedings for the next 18 months were the subject of preparation and case management.

On 4 June 2025, the matter was listed before Williams J for hearing. Her Honour declined to hear the matter for three reasons. First, no order had been sought or made for separate determination of the construction and rectification issues. Secondly, affected parties with an interest in intestacy had not been joined. Thirdly, Bianca had not been joined.

Her Honour delivered brief ex tempore reasons for judgment explaining this and made orders pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the joinder of 6 parties to the proceedings. Those are the four children of Leanne (Chantelle, Marc, Callum and Angus) as second to fifth defendants, Kieren as sixth defendant and Bianca as seventh defendant. The matter was stood over to a subsequent date in the Registrar’s list.

On 15 July 2025, Lauren Gidley, solicitor, filed a notice of submitting appearance on behalf of the second to sixth defendants.

On 17 July 2025, the associated matters were the subject of a referral to me as the Family Provision List judge. On that occasion, each of Messers Lakeman, Turnbull and Price of counsel appeared and, at their request, I made, considering it appropriate, an order for separate determination of the relief in [1]-[2] of the amended summons filed on 30 June 2025.

On 24 July 2025, Registrar Walton listed the matter before me for hearing today.

The relief sought that is the subject of the separate questions, in [1]-[2] of the amended summons is as follows:

The persons who are affected by the relief are, as I have indicated above, now all joined to the proceedings.

The essential issue in question focuses upon wording in clause 3 of the Will and, in particular, five lines which form what I will describe as the final two sentences of clause 3, being the contested clause:

The plaintiff contends that the contested clause is effective to give her the Terrigal property. Bianca, for her part, supports that position. The defendant disputes that and says that the gift fails and falls to be distributed under intestacy rules.

On the hearing of the matter before me this morning, Mr Lakeman appeared for Terrie, Mr Price appeared for Mr Hutchinson (the first defendant), and Mr Turnbull appeared for Bianca.

Ms Gidley, who has been appointed as the solicitor by the second to sixth defendants, filed a submitting appearance and earlier indicated she did not intend to appear at the hearing. Ms Gidley’s position is entirely explicable as, on the face of it, the interests of those defendants is not effectively different from the position and submissions advanced by the first defendant.

On the hearing of the matter, a number of affidavits were read. These included affidavits of Terrie, sworn 27 November 2023 and 2 April 2025, an affidavit of Claudia Pitt, solicitor, sworn 6 December 2023, and an affidavit of Mr Hutchinson sworn on 14 March 2024, which is essentially the form of an administrator affidavit for the purposes of the Family Provision Practice Note.

The necessary documents for dealing with the separate determination were provided by the parties in a form of Court Book (CB). I will refer to material from the Court book as I have already done. There were various iterations of written submissions by counsel. It is convenient to refer to the respective submissions as follows: Mr Lakeman’s submissions dated 13 March 2025 (PS1) and 29 July 2025 (PS2); Mr Price’s consolidated submissions dated 3 April 2025 (D1S); and Mr Turnbull’s revised submissions dated 8 August 2025 (D7S). I will refer to transcript references (T) as need be.

There was objection in particular to statements by the deceased in [93]-[94] of Terrie’s affidavit sworn 27 November 2023 as being evidence of the deceased’s objective intention in the construction of the Will: [33]

The statement “I want to buy you a house because, I do not think I will live past 80” in [93] is a statement of the deceased’s proposed intent of action for the future, coupled with seemingly a reason for it. It was not adduced as proof of anything rising beyond that. I admitted it as part of the surrounding circumstances of the deceased in the lead up to his making of the Will. [36] The statement in [94] “I made a will out today and I have left the house to you” is in essence an expression by the deceased of his interpretation of what he had done earlier in the day. I admitted it as part of the surrounding circumstances of the deceased making his Will and limited it as such. [37] It was not seriously pressed as being some form of substitute for the words used in the Will, nor some conclusive or decisive statement which determines the proper construction of the Will.

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. [38]

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. [39]

There are certain principles, legal (statutory and caselaw based), linguistic and grammatical, which are either mandated or advisory for a judge in construing a Will. It may be accepted that in any given case certain guides to construction will need to be applied. For example, it is clear that the whole Will must be read before finally arriving at an opinion as to the meaning of any controverted portion. [40] Frequently, the many guides may present as perplexing. In 1937, Edmond Cahen observed that generalities and maxims found in the textbooks are all linked with exceptions, qualifications and neutralising propositions. [41]

This case is not the occasion to essay the task of outlining all mandated principles and explaining and ordering advisory guides.

It suffices to comment on one aspect of Will construction guides, namely, reference to search for a scheme.

Each of the counsel referred to authorities bearing upon the scheme of the Will. Bryson AJ in Muir v Winn [2009] NSWSC 857 (Muir v Winn) at [24] noted some instances in which schemes may be important:

In some texts and case law, a form of construction primacy is claimed for certain guides indicating that “The first task is…”, secondly,…”. Thus, sometimes it is said that searching for a scheme is the first task. [42] It is important to bear in mind that in the construction of a Will, the search is for the testator’s intention. It is not a search for a “scheme” per se. The word “scheme” connotes some plan, design or purpose [43] generally (but not exclusively) with some rationality, connectedness, co-ordination or relationship between elements or parts. Conversely, some schemes in life are said to be harebrained, being irrational. [44] A testator might have had a scheme or plan, or he might not. If there is a scheme or plan, generally speaking, it can be simple [45] or complex. It might be logical and obviously ordered or it might be less so and apparently arbitrary.

Properly understood, the task of searching for a “scheme” or a “plan” is not the unequivocal “first” step or task in Will construction. Rather, it is simply one of a number of analytical or constructive tools to discern the deceased’s intention. The point is illustrated by White J in NSW Trustee and Guardian v Hirsch, [46] who outlined five principles relating to the construction of Wills relevant in that case, the fourth of which was ascertaining whether the deceased had a basic scheme for dealing with the estate.

The principal use of seeking to discern a scheme [47] is that, in cases of doubt or ambiguity, if such discernment reveals a plan or design or purposeful relationship in dispositions of property, that “scheme” might suggest that one of a number of competing possible constructions of the deceased’s intention is more likely than another or others. [48]

Further, without intending to be prescriptive or exhaustive, when judges refer to the usefulness of a scheme of disposition, [49] it often occurs in circumstances where the document is of some length and there are more than a couple of dispositions. There is no need to probe the depth of the scheme approach. It suffices to note that where the dispositive parts of the Will are barely more than a few or several lines of writing (contrasted with texts counted in tens or hundreds of lines), the very paucity of wording may be a factor which tends to undermine the usefulness of detecting the so-called scheme of disposition.

In Plunkett v Field [2025] NSWSC 797 (Plunkett v Field), I set out some of the principles relevant to construction of home-made Wills at [52]-[55] (omitting footnotes):

Section 27(1) of the Succession Act 2006 (NSW) (Succession Act) provides:

I addressed the principles regarding rectification in Reeves v Reeves [2024] NSWSC 134 (Reeves). At [419], I referred to Gleeson JA’s statements in Singh v Singh [2018] NSWCA 30:

In Reynolds v Bonnici [2017] NSWSC 828, Lindsay J observed the following regarding ademption:

In RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 292-293; [2012] NSWCA 39, Campbell JA explains in an appendix to the judgment how the provisions of s 30 of the Succession Act and principles of ademption operate. At [130], his Honour states:

Each of counsel provided helpful written submissions in the matter and a revised version of those submissions were contained in the Court Book.

Mr Lakeman, perhaps anticipating a submission that the gift comprising the Allambie Heights property had adeemed, submitted it was not the case and that, properly construed, the gift in the contested clause was of the Allambie Heights property or the proceeds of its sale.

Further, he submitted that extrinsic evidence, being the deceased’s statements to Terrie, were admissible pursuant to the provisions of s 32 of the Succession Act. As I have previously observed, s 32 has not received a significant amount of judicial attention: see Reeves at [383]. However, Mr Lakeman did not seek to advance the contention that s 32 operated differently from the general law position. Accordingly, there is no need for me to interrogate closely the ambit of it.

In oral submissions, Mr Lakeman emphasised that the sentences in the contested clause were a single gift and submitted that the second sentence will be meaningless if it was read as a separate instruction. He submitted that Terrie was the intended beneficial object of the monies from the sale after the mortgage.

Mr Turnbull separately developed the essence of Mr Lakeman’s submissions in more detail. He submitted in D7S as follows:

Mr Turnbull in oral submissions made three particular points. First, he essentially elaborated on the notion of a scheme in construing the Will. Secondly, he emphasised the approach to be taken where a home-made Will is drafted without legal advice. Thirdly, he challenged the proposition that what I have called the second sentence in the contested clause was a reference to some property other than the Allambie Heights property. He disputed that it could contemplate a property that was bought in parallel with the Allambie Heights property rather than in substitution for it.

Mr Price directed detailed submissions in D1S focusing on the construction of the two sentences comprising the contested clause:

Orally, Mr Price referred to the decision of the Full Court of the South Australian Supreme Court in Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111, making reference to what was stated by Stanley J at [32]:

Mr Price did not accept that the second sentence of the contested clause, specifically, the words “All moneys from the sale after mortgage” necessarily relate to the Allambie Heights property. On his contention, the testator seemed to contemplate owning another property which, according to the wording of the Will, was to be sold, the mortgage paid and then another property acquired.

I raised with Mr Price that, if the second sentence is disconnected from the first, there is uncertainty as to what sale or mortgage the testator was referring to. He acknowledged that but remained unwavering in his submission that another property was contemplated by the testator, unconnected with the Allambie Heights property.

He stressed that the Will supports an understanding of the testator’s intention that the plaintiff only receive the Allambie Heights if it is owned by him at the time of death. He submitted the second sentence in the contested clause stands completely separately from this gift. In response to an observation by me that no beneficiary is explicitly named in the second sentence, he suggested that the gift may be for Bianca or Bowie or all of them.

However, ultimately, his submission was that the words used in the second sentence of the contested clause are not capable of giving rise to an objective meaning. On his contention, the identity of the beneficiary of the gift in the second sentence is a question that cannot be answered.

In any event, Mr Price submitted that, if I was not with him on these submissions (and rather I find that “All moneys from the sale after mortgage” relates to the Allambie Heights property), it still has to follow that the second sentence is not an absolute gift. His argument was that the testator intended for some form of restriction on the use of the property to persist beyond his death after it is purchased.

In reply, Mr Lakeman referred to my decision in NSW Trustee and Guardian v Matthews [2024] NSWSC 595 on the question of construction.

Mr Turnbull in reply made three points:

Each case of Will construction is different. There are various principles that provide general guidance, which depending on the particular case may have greater or lesser or no application.

At the time that the deceased made the Will in question, it seems that the property he had at his disposal was the Allambie Heights property, some moneys in bank accounts, a motor car, and I infer some vinyl records.

By the time of his death, the deceased’s assets had changed in two significant respects. He still held some personal effects (including the vinyl records), proceeds of bank accounts and his motor car. However, instead of the Allambie Heights property, he held the Terrigal property and, in addition, consequent upon Robert’s death, he had an interest in Robert’s estate which it turns out is of significant value.

In this particular case, to the extent that a basic scheme can be discerned, I have the impression that at the time the deceased made his Will, he focussed on items that were perhaps important to him. In this regard it seems to me that Mr Turnbull’s following submission is relatively close to the mark:

The two particular items which he addressed were vinyl records and the Allambie Heights property.

The gift of the vinyl records (though containing some spelling mistakes) is straightforward and there is no dispute about that. The gift of the Allambie Heights property, as is evident from the litigation, is vexing to a degree.

The submissions of the parties have exposed a number of possibilities. At the risk of oversimplifying matters, at a basic level, those possibilities focussed upon questions of the scheme of the Will and the connectedness of the two sentences within the contested clause. The more nuanced submissions are set out above.

Each of the counsel deployed submissions to a question of rectification. It does not seem to me that rectification is of particular assistance here. Rather, I consider that clear enough meaning can be given by an approach of construction of the contested clause.

It seems to me that an important key to understanding the deceased’s expressed intent is viewing the contested clause in light of the surrounding circumstances. At the time that the deceased made his Will, the following context assumes importance:

On or about 31 May 2019, the deceased informed Terrie that he had made out a Will “today” and “I have left the house to you”. My ruling as to the evidentiary use of those words is set out above.

In the above circumstances, it seems to me that the wording of the contested clause reveals an intent of the deceased that Terrie would have the benefit of the Allambie Heights property or the benefit of the sale proceeds.

There is no particular context which sheds light on the deceased’s words “Cannot be given to any partner or friend or used for any other purpose ie [business]”. There is no indication that, at the time the Will was made, Terrie had any relationship with a partner or friend such that she might be at risk of losing the moneys nor indeed any evidence that Bianca or Bowie was in a like position. There is no indication that any of them were ready to embark upon some business venture for which the funds might be used. I do not think that it is helpful to attempt to over-analyse or speculate regarding those matters or risks. The sense I have is that that was the deceased’s way of expressing his wish that the Allambie Heights property or its sale proceeds should be used for Terrie’s benefit in securing accommodation rather than for some other purpose.

What in fact occurred was the deceased, substantially with the sale proceeds from the sale of the Allambie Heights property, purchased the Terrigal property for accommodation.

Neither Mr Lakeman nor Mr Turnbull suggested that, in the events which occurred, the concluding words “Cannot be given to any partner” et cetera down to “business” impressed the gift to Terrie of the proceeds of sale or the Terrigal property with some ongoing obligation. Mr Price submitted that the language “is an attempt or does disclose an intention on the part of the testator to impose some form of restriction”.

In the scheme of things, I doubt that that is the case. However, Mr Hutchinson did not seek any particular declaratory relief addressing the outcome, if I found that the Terrigal property was effectively gifted to Terrie, that I should find that there was some ongoing constraint regarding that property. In the circumstances, I do not propose to say anything further about it.

Since the construction that I have found is counter to Mr Price’s submission, it is appropriate I briefly say something regarding his submissions.

First, I do not think that it is appropriate to approach the construction of the contested clause as if the two sentences deal with separate issues. The fact that the second sentence commences on a fresh line does not to my mind “strongly suggest” that the deceased was dealing with a new issue.

Secondly, as to the submission that the words “All moneys from the sale after mortgage” cannot be the sale (or at least is not necessarily the sale) of the Allambie Heights property because the property was already the subject of the gift in the preceding sentence, I reject the submission. If one poses the question of what was the “sale after mortgage”, it seems to me the overwhelming inference is that the deceased meant the Allambie Heights property which was subject to a mortgage. He had no other real property that was subject to a mortgage. Indeed because of that and because of the context that I have referred to above, it seems to me that those words in the second sentence reinforce the connectedness between it and the first sentence.

Thirdly, regarding Mr Price’s submission that the Will does not specify the beneficiary of the property to be purchased with the moneys from the sale after mortgage is paid seems to me to be both prefaced and premised on a disconnectedness between the first and second sentences. It seems to me that, properly construed, there is a connectedness between the first and second sentences. On that basis, it is evident that the moneys from the sale after the mortgage is paid are to be used to buy a property which is gifted to Terrie.

Fourthly, as to Mr Price’s submission that the second of the contested sentences is incomplete, I accept that the deceased could have used clearer language. However, that does not mean that the language that the deceased used is devoid of dispositive meaning. When the two sentences within the clause are read together, it seems to me that, properly contextualised, the deceased intended for Terrie to receive the proceeds of sale of the Allambie Heights property or, as has occurred, the substitute property, which is the Terrigal property.

Fifthly, in respect of Mr Price’s submission that if a new property is to be purchased, it does not specify the persons who might use the property, for how long and on what terms, in a sense that is true, if one assumes that the second sentence is disconnected from the first. However, in light of the connectedness that I have found between the two sentences, it seems to me clear enough that the gift is a gift of what has become the Terrigal property to Terrie. Whilst the language that the deceased has used is not a model of perfection, I bear in mind the counsel of the High Court, in particular Barwick CJ and Menzies J, regarding the approach to be taken to construction in the case of Wills that are either home-made or prepared by a testator without legal assistance (see above).

Finally, I should observe that, as is evidenced, the Will contains no residue clause. It is not in issue between the parties that, other than the vinyl records and the Terrigal property, the balance of the deceased’s estate devolves on intestacy.

In the result, I consider that in light of my finding, the appropriate order is to make the declaration as sought in paragraph 1 of the amended summons.

There was a brief debate regarding the question of costs in the proceedings, both as to the burden and the source of costs.

Whilst Mr Lakeman raised a question regarding perceived deficiencies of the Will kit and consequentially the executor’s role in the litigation, I was not convinced that Mr Hutchinson was in any way implicated in the cause of the litigation such that he should not have costs on the usual indemnity basis.

Mr Price for his part submitted that the source of the payment of costs should arguably be from the subject matter of the dispute, namely the Terrigal property, and in this regard made reference to the decision of White J in Keulemans v Attorney-General, New South Wales [2013] NSWSC 1772; (2013) 12 ASTLR 202 in particular at [45]-[49] (especially [47]).

Costs are in the discretion of the Court. A number of statutory provisions bear upon the matter.

First, s 98 of the Civil Procedure Act 2005 (NSW) (CPA) confers a very wide discretion, enabling the Court to decide who should bear the costs of litigation before it, quite independently of whether those costs do, or do not, amount to testamentary expenses. [57] Secondly, s 93(3) of the Trustee Act 1925 (NSW) enables the Court to order the costs of construing a particular clause of a Will out of the property which is the subject of that clause. [58]

In the midst of debate, I expressed the view that in the circumstances of this particular case I regarded the costs as being a testamentary expense which ordinarily would be paid out of residue. Mr Price accepted that position as I understood it without further contention about the matter. [59]

Lastly, I note that essentially the representation for both Terrie and Bianca was representation in the same interests. As I have recently observed, at least in Will construction matters, there is a question of whether it is appropriate for two sets of costs to come out of the estate for parties who are contending for the same construction or outcome. [60] In this particular case, the construction issue was raised by Terrie, and Bianca contended for the same outcome. Without encouraging practice of several parties with the same interests being represented at a hearing of the matter as distinct from being bound by the outcome, it suffices for me to note that in this particular case I was assisted by Mr Turnbull’s submissions and I consider that the costs of Bianca’s representation should be paid out of the estate on the ordinary basis.

The orders of the Court are the Court: