Plunkett v Field

HIS HONOUR: Marc Andrew Sebastian Field (deceased), a finance director, was born in England and travelled to Australia on a working Visa. He settled in Darlinghurst and passed away on or about 28 December 2020, aged 51.

The final few years of the deceased’s life were marked by tribulation. He was deeply estranged from his sister (Sarah) and sadly his dear mother (Anne or mother) and his beloved dog (Jimmy) both pre-deceased him. The pall of misfortune pervading those years endured past his death. His nephew (Jay), Sarah’s son, whom the deceased had sponsored to come to Australia, tragically took his own life and the deceased’s efforts to dispose of his estate effectively, to those he cherished, have been stymied by a poorly drafted Will.

Ultimately, for the reasons recounted below, his dispositive plans have not been entirely thwarted. I have determined that the gist of the deceased’s testamentary scheme can be sufficiently distilled with the result that his expressed intentions can be given effect to.

Jimmy passed away in October 2019 and Anne on 1 December 2019. The deceased was survived by Sarah, the first defendant. Sarah appears to have had a number of relationships. Through one relationship she has two children, Finn and Max, the deceased’s nephews. Relevantly, through a second relationship, although described by counsel as a “summer fling”, Jay was born was born in 1995, his father, Lester Martin, being the second defendant (Lester).

Jay died on 24 October 2024, aged 29. He had returned to England (the homeland of his birth in Ascot, Berkshire) and was living in Clapham, London at the time of his death.

The deceased made a last Will dated 24 November 2017 (Will), probate of which was granted on 30 July 2021 to the named executors, a friend named Olive Plunkett (Olive) and Jay.

The deceased’s New South Wales estate, as disclosed in the inventory of property, totalled $1,991,785.24, the principal assets of which were:

Evident from the terms of the Will, the deceased held property outside New South Wales, principally being: [1]

Both of those properties are in the name of the deceased and will need to be transferred to Olive as his surviving Executrix. For that transfer to take place, a formal Death Certificate needs to be issued for Jay’s estate which has been delayed pending an investigation into his death by Michelle Haste, Assistant Coroner for London Inner South and a Coronial inquiry. [2]

On 26 September 2022, Olive and Jay filed a summons naming Sarah as defendant, seeking orders for rectification of the deceased’s Will pursuant to s 27 of the Succession Act 2006 (NSW).

The application was dealt with in chambers by Hallen J.

On 22 November 2022, his Honour made orders extending the time for the application for rectification up to the date of the filing of the summons, declared that the Court was satisfied that the deceased’s Will did not carry out his testamentary intentions, and ordered that the Will be rectified by deleting cl 6(f) in its entirety.

A specific notation was made by Hallen J that Sarah, being the only person entitled on intestacy, consented to the orders and notations.

Jay died intestate with the consequence that his parents are the statutory next of kin for the purposes of inheriting his estate.

On 6 March 2025, Olive filed a summons seeking construction of the deceased’s Will. She named Sarah as first defendant and Lester as second defendant.

The relief sought in the summons posed the question of whether the gift of residue of the deceased’s estate to Jay vested in him as of the date of his death. This question is largely framed around construction of cl 15 of the Will, being:

In the event that the gift was vested, the summons sought the declaration that the whole of the residue of the deceased’s estate formed part of Jay’s estate. In the event that it did not vest, the summons contemplated that an intestacy arose, but no particular relief was sought in respect of such intestacy.

In the circumstances described below, leaving aside specific legacies, and having regard to the trust provided for Jimmy and the provisions naming Anne and Jay as beneficiaries, there is no serious dispute that in the event that the gift for Jay did not vest, there was a partial intestacy.

The persons affected by the relief sought in the summons are Sarah and Lester. Sarah, who lives in Windsor, Berkshire, has been served with the summons and has not filed any appearance nor played any active part in the proceedings. She has corresponded with Mr McDermott indicating that she did not intend to engage a legal representative and that she trusted the Supreme Court to make a correct and fair legal decision. Lester, who lives in Northampton, has appeared by counsel.

The estate has been administered to some degree and distributions have been made. Prior to his death, payments were made to Jay totalling $1,088,162.64 comprised of: [3]

As of 6 March 2025, the value of the residuary estate was estimated to be in the range of $800,000 to $900,000 after converting proceeds of foreign assets into Australian currency.

Massive amounts of money appear to have been paid to him. It is not entirely clear why some of those payments have been made. Nonetheless, for present purposes, it is not necessary to probe that.

The matter was the subject of early case management. Mr Wallis of counsel for the plaintiff and Mr Ellison SC and Mrs Young for Lester had prepared outlined submissions.

On 27 June 2025, having received the Court file and provisionally perused the submissions, at my request, my Associate sent an email to the legal representatives which included the following:

On 2 July 2025, at the listing of the matter for pre-trial directions, Mr Wallis (due to a diary mishap) did not appear. Mrs Young appeared for Lester.

Mrs Young submitted that there was no obstacle to the Court issuing declaratory relief in the absence of a contradictor, citing Johnson v Johnson [2022] NSWSC 44 per Ward CJ in Eq at [38]-[46] and Catholic Metropolitan Cemeteries Trust v Attorney-General of New South Wales [2024] NSWCA 30; (2024) 422 ALR 33 at [26]-[27] per Leeming JA (Bell CJ at [1] and Ward P at [2] agreeing).

I was satisfied in the circumstances of the case that it was appropriate for the matter to proceed, notwithstanding there was no active contradictor for the contrary position of intestacy in circumstances in which Sarah, who had benefited by reason of the intestacy, had been named as a party but chosen not to participate in the proceedings as outlined above.

Nonetheless, in circumstances where both Olive as Executrix and Lester as second defendant were both contending for the same outcome, I raised as an issue for reflection the question of whether it is appropriate for two sets of costs to come out of the estate for parties who were contending for the same outcome.

Relevantly, I made the following order:

On the hearing of the matter before me this morning, Mr Wallis appeared for Olive and Mr Ellison SC and Mrs Young appeared for Lester.

The summons was supported by a number of affidavits of Olive’s solicitor, Mr McDermott, which have been read on this application. The Court Book includes those affidavits and submissions of Mr Wallis and Lester’s counsel.

The evidence on the hearing did not detail how the Will came to take the form that it did. The file dealing with the application for rectification for the deceased’s Will sheds more light on the matter.

When I raised the lack of detail on the hearing, Mr Wallis read an affidavit from Mr McDermott in the rectification file, together with an affidavit from a retired solicitor, Roslyn Cronin, with leave.

In Mr McDermott’s affidavit sworn on 23 September 2022 in support of the application for rectification, he indicates that the Will was drafted by Noel Francis Bracks, the then principal of Noel F. Bracks & Company Solicitors, who died on 6 July 2018 aged 85.

According to Mr McDermott, the Will appears to have been the last of two Wills prepared for the deceased by Mr Bracks, or an employee within his firm, apparently with changes and updates made to the form of the Will when instructions were received from the deceased.

For the purposes of the rectification claim, it seems that Mr McDermott made contact with a solicitor, Margaret Hole, who had been appointed as administrator for Mr Bracks’ legal practice. It suffices to note that she indicated that many of Mr Bracks’ files were incomplete, and specifically in relation to the deceased’s file, she was unable to find anything of use. It appears that the only relevant documents that remained were a number of emails and some drafts of what eventually became the deceased’s Will.

Ms Cronin, now a retired solicitor who was employed in Mr Bracks’ firm up until 2016, had prepared a Will for the deceased executed on 23 March 2015. She provided an affidavit which addressed at least the drafting error in cl 6(f) of the Will which was used in support of the successful application for rectification. In her affidavit, she referred to the complexity of the deceased’s instructions.

It is clear that subsequent to the execution of the March 2015 Will, the deceased initiated, in late June 2017, correspondence with Ms Cronin, desiring some changes to his Will, to which Mr Bracks replied.

On 18 July 2017, the deceased sent an email to Mr Bracks, although to the email address of Ms Cronin, indicating that he could not find a copy of his previous Will and then set out nine dot points detailing testamentary dispositions which he proposed to be included in an amended Will.

Further correspondence ensued throughout the period of August-November 2017.

On 3 November 2017, the deceased sent to Mr Bracks an email attaching a draft updated Will:

The form of the Will which is attached bears a strong similarity to the final version of the deceased’s Will. The wording in cl 15 provided by the deceased at that point of time is the same as in the final version of the Will.

On 9 November 2017, Mr Bracks sent the deceased a further draft of the Will which contained a number of relatively minor suggested changes marked up in red.

Significantly and regrettably, those suggested changes, whilst addressing some matters, did not grapple with the curious and unconventional wording of cl 15.

The final version of the Will is in precisely the same form as that marked up draft provided by Mr Bracks.

Relevantly, the deceased’s Will states: [4]

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

In NSW Trustee and Guardian v Matthews [2024] NSWSC 595, I set out at [46]-[58] some principles relevant to the construction of a Will. In particular, I stated:

Particular submissions were directed to what constitutes vesting. I have had regard to the submissions on behalf of Olive and also from Lester’s counsel in that regard.

A practically useful explanation of vesting was addressed by Campbell J in Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 at [35]-[37].

In this case, whilst the Will bears the hallmarks of preparation by a law firm and review by a solicitor, the reality is that much of language used in the Will was seemingly drafted by the deceased likely using as a precedent some clauses provided by Mr Bracks. It is unclear if those clauses came in part from the March 2015 Will. In any event, the contentious clause, cl 15, was (as I have observed above) drafted by the deceased and not seemingly reviewed (or in any event altered) by the solicitor.

The appropriate approach to construction of Wills that are wholly or substantially ‘home-made’ was the subject of comment by the High Court in Lewis v O’Loughlin (1971) 125 CLR 320; [5] [1971] HCA 53. In summarising the position, Sackar J in Jones v Robinson [2019] NSWSC 932 stated: [6]

In Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685 Robb J stated: [7]

Much is said in the law regarding “counsel of perfection” in various matters. However, the reality of difficulties in construction, particularly of Wills that are substantially ‘home-made’, needs to be faced.

Sometimes no construction of a clause will reconcile all aspects of its meaning. However, that does not stand in the way of the Court imputing to the disputed clause that which, even if slightly imperfectly, best accords with the effect which the testator is taken to, or likely to have, intended. [8]

Leaving aside preliminary provisions by which the deceased revoked prior Wills and appointed executors and trustees, Lester’s counsel suggested that the scheme of the Will for disposition of the deceased’s estate be separated into six parts:

Counsel also submit there are three further aspects of the scheme:

Whilst I accept that that suggested scheme is one way of analysing the Will, it seems to me that there is another way of characterising the structure of the testamentary dispositions.

Essentially, the broad scheme of the deceased’s Will is that three funds are identified for three main beneficiaries:

The funds that are set up for the benefit of Jimmy (fund 1) and the benefit of Anne (fund 3) are time-limited by their expected deaths. The clauses that bear upon fund 1 provide for monies to be used for the benefit of Jimmy, but upon Jimmy’s death for any excess funds to be held in trust exclusively for Jay and to augment fund 2. Similarly, significant provision is provided for Anne, however, the clause setting up fund number 3 provides for a form of life interest for her with the remainder to augment fund 2, subject to specific carve-outs for charitable purposes.

Olive’s counsel ultimately contended in the written submissions:

A significant part of the submission appeared to have directed analysis to the rule in Saunders v Vautier (1841) Cr & Ph 240; 49 ER 482 and in contrasting the provisions of the Will with the decision of Hallen J in Serwin v Dolso [2020] NSWSC 370.

Lester’s counsel detailed submissions regarding legal principles in respect of presumptions against intestacy, presumptions of early vesting, the absence of discretionary powers of advancement, analysis of contingent gifts and use of the word liquidate in cl 15 and growth in cl 18. Other analysis was directed to the words in the Will being contrasted with words in Arnott v Kiss [2014] NSWSC 1385 (Arnott).

In summary, Lester’s counsel submitted as follows:

Questions of construction are essentially fact-specific and accordingly no case can truly provide any precedent for each new Will that comes before the Court for consideration. [9]

The ingenuity of counsel in marshalling reference to various cases and legal principles has been of some assistance to me.

However, a precedential approach risks missing or perplexing the deceased’s expressed intention. [10] As I have previously observed, often the assistance of such guides is limited and may be exhausted by simply identifying plausible alternative constructions and so allowing some testing of contender constructions to incline the judge’s mind in any given case toward or against a particular outcome. Thus, ultimately, such guides merely serve to assist judges in the process of determining the proper construction of a Will, as distinct from directing or compelling a particular construction outcome. [11]

The wording of cl 15 is far from ideal. However, without resorting to comparison with other cases, it seems to me that the intent of the deceased can be refined by reference to aspects of structure and wording within the Will itself which point towards the gift of residue of the deceased’s estate vesting in Jay upon the deceased’s death, subject to certain deferrals as to possession or receipt of certain of the property.

First, the overall structure of the Will is important. I have set this out above. Broadly speaking, leaving aside the specific legacies, the structure of the Will reveals an intent by the deceased to ultimately benefit Jay. In any event, in the ordinary course of affairs, that intent is consistent with the deceased expecting Jay to outlive both his mother and Jimmy.

Secondly, cl 14, by which the excess funds in cl 1 are to be held exclusively for Jay, does not contain any express deferral of vesting.

Thirdly, the words “cannot be liquidated” in cl 15 are not words generally associated with an absence of immediate vesting, nor do they suggest a deferral of vesting. The use of those words is highly curious. The word “liquidate” is defined by the Macquarie Dictionary (online ed) to include:

The Collins Dictionary (online ed), referenced by Lester’s counsel, lists similar meanings.

The context in which the word “liquidated” appears in cl 15 does not obviously bear connection to any of the listed definitions above.

It seems to me that having regard to the scheme of the Will as a whole and the structure of the benefits for Jay, the words “cannot be liquidated” more naturally convey the meaning “cannot be accessed”. The notion of a deferral of receipt or possession of all or part of the capital of gifted funds is distinct from an absence of vesting.

Fourthly, the clauses of the Will which bear upon the benefits for Jay by their tenor disclose purposes other than an outcome that the fund does not vest in Jay until he attained the age of 35. Jay at the time that the Will was made was aged 22. Thus:

I determine, on the proper construction of the Will as rectified, that the gift of residue to Jay vested in him at the time of the deceased’s death.

I have reflected on the question of costs. Mr Wallis has attended today and as I have indicated, his attendance today has been of some assistance to the Court in reading additional material. It seems to me that Olive has conducted the proceedings in a manner consistent with the just, quick and cheap resolution of the real issues in the proceedings and in all the circumstances I consider that Olive, as the executrix of the estate should have her costs paid out of the estate calculated on the indemnity basis.

I have been assisted by the submissions from Lester’s counsel and as earlier indicated on the listing on 2 July 2025, I was assisted by Mrs Young’s submissions in relation to the contradictor issue.

Nonetheless, in all the circumstances I do not consider that two sets of indemnity costs should come out of the estate. I consider the proper order is that the second defendant’s costs be paid out of the residue of the estate calculated on the ordinary basis.

The orders of the Court are as follows.