Justice Isaacs (as he then was) explained the now well-established principles governing the interpretation of Wills in Fell v Fell (1922) 31 CLR 268 at 273–274. In determining the meaning of a Will from its own wording, assisted only by such external evidence as is necessary to understand the words the testator used. Further, the Court must construe the Will according to the plain meaning of its language, read as a whole.
Isaacs J’s principles continue to be applied in modern cases, including Hatzantonis v Lawrence [2003] NSWSC 914 at [6]–[10], NSW Trustee and Guardian v Reid [2023] NSWSC 1053, and Reeves v Reeves [2024] NSWSC 134 at [371]–[386].
Armchair principle
The so-called “armchair principle” also assists in Will construction. Under this approach, the Court may consider all facts known to the testator when the testator made the Will to place itself, figuratively, in the testator’s position. The armchair principle enables the Court to interpret the language of the Will as the testator would have understood it: Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65.
The process of construction requires the Court to interpret the testator’s language to give effect, as far as possible, to the intention the testator has expressed in the Will as a whole: Brennan v Permanent Trustee Company of New South Wales [1945] HCA 17; (1945) 73 CLR 404 at 414. As Viscount Simon LC observed in Perrin v Morgan [1943] AC 399 at 407–408, the central task is to attribute to the words used the meaning that the testator intended, given the context of the entire document
“… the fundamental rule in construing the language of a will is to put upon the words used the meaning which, having regard to the terms of the will, the testator intended. “
The correct approach to interpreting a Will that uses ordinary English is not to presume one meaning as legally correct over others, but to identify, without preconception, which ordinary meaning best reflects the testator’s intention. Wills should not be construed narrowly or with unnecessary legalism; instead, the everyday context and circumstances of life should guide interpretation: Re Willis [1996] 2 Qd R 664 at 667.
Statutory principles also guide construction. Section 31 of the Succession Act 2006 (NSW) provides that where a gift or other disposition fails in whole or in part, the failed property Jo passes into the testator’s residuary estate unless the Will shows a contrary intention. Further, s 32 allows the admission of extrinsic evidence—including evidence of the testator’s intention—if the wording of the Will or any part of it is meaningless or ambiguous, either on its face or in light of the surrounding circumstances.
Parties and Background
The late Brian Patrick Pendergast (the deceased), a grazier from Hobbs Range near Moonbah in the Snowy Mountains, NSW, passed away on 19 August 2023 at the age of 87. He left a Will dated 28 July 2015. His son Karl Pendergast (the plaintiff) brought proceedings against the executors, his sister, Lordona Pendergast (the First Defendant) and the deceased’s brother Errol Pendergast (the Second Defendant).
Family and Probate
Three of the deceased’s four children survived him— the plaintiff, the first defendant, and Jeremy Pendergast, but his fourth child, Dean Pendergast, predeceased him. However, Dean’s wife, Tarina, and two children survived him. The Supreme Court granted Probate of the Will to the executors on 28 May 2024.
Proceedings and Relief Sought
The Plaintiff filed a Summons on 21 November 2024, seeking declaratory relief concerning the proper construction of the Will, along with related orders. At the hearing, the plaintiff pursued two key requests:
- A declaration that the plaintiff was entitled under clauses 2.4–2.6 and 3.3 of the Will, to one quarter of the net estate; and
- An order that the estate pay the plaintiff’s legal costs from the estate.
Background to the Dispute
The dispute centred on how to interpret several clauses of the Will designed to balance prior gifts made to the plaintiff against his inheritance. On 9 November 2005, approximately 18 years before his death, the deceased had gifted the plaintiff two parcels of land — Lots 22 and 29. The plaintiff sold Lot 22 in 2016 but still owned Lot 29.
The 2015 Will accounted for these earlier gifts by defining and valuing “Karl’s Land” and creating the concept of an “augmented estate”, which combined the net estate with the value of “Karl’s Land.”
The relevant provisions stated:
Clause 2.4: “Karl’s Land” means Lots 22 and 29 (owned by Karl at the time the deceased made the Will).
Clause 2.5: “The value of Karl’s Land” means its market value at the testator’s death, determined by a valuer chosen by the executors, whether or not Karl still owned it.
Clause 2.6: “My augmented estate” means the net estate plus the value of Karl’s Land.
Clause 3.2 gave Lordona, Jeremy, and Dean (or their issue) each one-quarter of the augmented estate.
Clause 3.3 provided that Karl, if surviving the testator, would receive one quarter of the augmented estate minus the value of “Karl’s Land” (or his issue if he predeceased the testator).
Clause 3.4 stated that if Karl’s gift under clause 3.3 failed (e.g., if it produced no distributable amount), the balance would be divided equally among the other three children (or their issue).
In 2005, the deceased transferred two parcels of real estate—lots 22 and 29—to the Plaintiff. Under his 2015 Will, the deceased left each of his four children one-quarter of his “augmented estate,” which he defined as his net estate at death plus the value of lots 22 and 29. The Will also specifies that the plaintiff’s share would be reduced by the value of those two lots, reflecting that he had already received them as lifetime gifts.
Plaintiff’s Submissions
The plaintiff argued that clause 3.3 of the Will entitled him, in substance, to one quarter of the net estate alone. He maintained that the calculation involving “Karl’s Land” could effectively be disregarded, as its inclusion and subsequent subtraction would “cancel out.”
In the alternative, the plaintiff submitted that the Court should read the clause as excluding the deduction of “Karl’s land” value. He reasoned that the deceased could not, through the Will, dispose of property that no longer belonged to him.
Executor’s Submissions
The executors submitted that the Will required the value of Karl’s Land to be added to the net estate to determine the “augmented estate.” Under this scheme, each of the deceased’s other children (Lordona, Jeremy, and Dean) would receive one quarter of the augmented estate, while the plaintiff’s share under clause 3.3 was one quarter of the augmented estate minus the value of his land. Slattery J accepted this as the correct interpretation.
The Court’s Interpretation
Before addressing the parties’ arguments, Slattery J provided a construction of the relevant clauses. The design of the Will’s formula for distribution to achieve equality among the four children by notionally including the value of the plaintiff’s Land—already gifted during the deceased’s lifetime—within the calculation of the augmented estate.
The term “my augmented estate” therefore referred to the net value of the estate plus the market value of the plaintiff’s Land as at the date of death. Each beneficiary was to receive one quarter of this total. However, the plaintiff’s entitlement under clause 3.3 required a further deduction of the value of his land.
The distinction between clause 3.2 (the gifts to the three other children) and clause 3.3 (the plaintiff’s gift) was critical. Clause 3.2 provided each of the other beneficiaries with one quarter of the augmented estate. Clause 3.3 gave the plaintiff
“an amount represented by one quarter of my augmented estate, less the value of the plaintiff’s Land.”
Thus, the plaintiff’s gift required two mathematical steps—first dividing the augmented estate by four, then subtracting the value of his land.
If the market value of the plaintiff’s Land exceeded one quarter of the augmented estate, his gift would fail, and clause 3.4 would apply, entitling the remaining three children to divide the net estate equally. If the land’s value is less than one quarter, the plaintiff would receive the difference between one quarter of the augmented estate and the value of his land.
Slattery J rejected the plaintiff’s argument as mathematically and linguistically unsound. His Honour’s interpretation—dividing only the net estate by four and ignoring the proper aggregation step—produced a meaningless “add then subtract” exercise, inconsistent with the Will’s purpose of equalisation.
Symbolically illustrated:
- The plaintiff’s (incorrect) formula: (Net Estate ÷ 4) + Karl’s Land – Karl’s Land
- Correct formula: (Net Estate + Karl’s Land) ÷ 4 – Karl’s Land
Slattery J also dismissed the plaintiff’s alternative claim that the Will impermissibly dealt with property not forming part of the deceased’s estate. The clauses merely used the value of the plaintiff’s Land as a notional factor in calculating equality of distribution; they did not purport to gift the land itself. Whether clause 3.3 operated or failed, funding the distributions to all beneficiaries ultimately by the net estate.
Finally, apart from minor inconsistencies in capitalisation, Slattery J found no ambiguity justifying reliance on extrinsic evidence under s 32 of the Succession Act 2006 (NSW). The court could properly construe the Will on its face.
Valuation of Properties
Both parties agreed that if they accepted the plaintiff’s interpretation of the Will, it would not be necessary to value Lots 22 and 29. However, under the executors’ interpretation—which Slattery J accepted—valuations of both lots were required unless the parties could agree on their values.
Court-Appointed Valuer
Slattery J would not allow a costly dispute over property valuations, as the estate’s limited funds could not support it. Instead, if the parties could not reach an agreement, the Court would appoint a single independent valuer under the Uniform Civil Procedure Rules 2005 (NSW), r 31.46. His Honour asked the parties to submit short minutes of order naming a suitable valuer, directed (in accordance with clause 2.5 of the Will) to determine the market value of the plaintiff’s Land—Lots 22 and 29—as at the deceased’s date of death.
Access to Lot 2
In 2016, the plaintiff sold Lot 22 to a third party, which could complicate access for valuation purposes. The Court recommended that the executors first seek the current owner’s cooperation. If the current owner refused access, the valuer could rely on photographs, cadastral maps, and satellite imagery. However, if a valuer required direct access, the executors were authorised to apply to join the owner as a respondent and seek a court order for entry. Slattery J noted that it is usual for the Court to grant access if sought on reasonable and non-intrusive terms, and encouraged the parties to negotiate a practical arrangement.
Costs
The parties did not dispute payment of the executors’ costs from the estate on an indemnity basis. The plaintiff (relying on Re Buckton [1907] 2 Ch 406 and subsequent authorities such as Northey v Juul [2014] NSWSC 464 and James v Douglas [2016] NSWCA 178) however, argued the estate should bear all parties’ costs because the plaintiff’s application merely sought the Court’s construction of the Will, a step the executors themselves could have taken.
Court’s Decision on Cost
Slattery J disagreed, maintaining that the case did not fall within the third Re Buckton category of inter partes litigation where one beneficiary’s interests are adverse to those of others, and held that costs should follow the event, meaning the plaintiff must pay the executors’ costs on the ordinary basis.
Two factors supported Slattery J’s conclusion:
- The matter had features of inter partes litigation because one executor, the First Defendant, was also a beneficiary with interests opposing the plaintiff’s
- The plaintiff’s argument reflected an overly strained and self-serving interpretation of clause 3.3 that misread the Will’s wording and purpose.
Adjournment and Orders
The matter was adjourned to 21 October 2025 for mention, allowing time to address any further valuation issues. The Court could vacate the listing if the parties needed no further orders
Orders made
- Parties to submit by 29 August 2025 short minutes of order giving effect to the Court’s reasons, including any consequential orders for estate administration
- Proceedings adjourned to 21 October 2025 at 9:30 am
- Liberty to apply granted.