Principles of Construction
In Fell v Fell (1922) 31 CLR 268 at 273–4, Isaacs J articulated principles that have been applied consistently in Will construction:
First, derive the meaning of a Will from the document itself. Use only the extrinsic evidence necessary to understand the language the testator used.
Second, construe a Will according to the ordinary and plain meaning of its words. Please read it in the context of the instrument as a whole. Refer to Hatzantonis v Lawrence [2003] NSWSC 914 at [6]–[10]. See NSW Trustee and Guardian v Reid [2023] NSWSC 1053. For more information, look at Reeves v Reeves [2024] NSWSC 134 at [371]–[386].
Extrinsic Evidence
In Estate of Aspasia Kandros [2019] NSWSC 757, Hallen J examined the conditions of the Court’s use of extrinsic evidence. This was to resolve uncertainty in a testamentary gift. The testator purported to leave a property identified as “street number 5”, although the correct description was “unit 5”. The Court accepted that the testator had signed the Will without realising this error. This was particularly true since she was unable to read or speak English. It held that the gift did not fail merely because of the misdescription. The Court can find the deceased’s intention with the assistance of extrinsic evidence.
The Court was satisfied that the testator intended to help the named beneficiaries under the relevant clauses of her Will. It admitted the daughter’s evidence. The evidence was used to explain the intended meaning of the bequests. It included evidence of physical characteristics. These made the correct property readily identifiable. The Court read the Will, considering it admissible evidence enabling it to give effect to the testator’s true intentions.
An illustration of the importance of using clear and precise language when drafting wills. Estate of Aspasia Kandros [2019] NSWSC 757 also shows that courts rely on extrinsic evidence. This helps give effect to the testator’s intentions where the wording is unclear. The decision shows that the court Will not allow technical errors in description to defeat a testamentary gift’s purpose. A strict approach to formal requirements does not consistently achieve a fair result. A court’s approach acknowledges the importance of fulfilling the wishes. It considers the facts and circumstances surrounding the Will.
Armchair Principle
The so-called armchair principle is also applied. The Court is placed in the testator’s position. It does this by considering all facts known to the testator when making the Will. This helps decide how the testator understood the language. It indicates the method the testator used to apply the language. See Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 65.
Construction involves shaping a Will’s language to the testator’s intentions. This should be done carefully. It should closely follow expressions throughout the Will. Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404 at 414. Viscount Simon LC explained in Perrin v Morgan [1943] AC 399 at 407. The basic principle is to give words in a Will the meaning intended by the testator. This is based on the document’s provisions.
The correct approach is not to assume one meaning as “legally correct.” Do not displace it unless considering another is non-legal. Instead, decide, without preconception, which of the ordinary meanings best reflects the testator’s intention: Perrin v Morgan at 407–408. Do not interpret a Will in a narrowly technical way. Avoid an overly legalistic interpretation. Consider everyday language and ordinary circumstances: Re Willis [1996] 2 Qd R 664 at 667. (Perrin v Morgan [1943] 2 All ER 287)
Succession Act 2006 (NSW)
Statutory guidance plays a significant role in the construction of wills. Section 31 of the Succession Act 2006 establishes the default rule. If a gift or disposition under a will fails entirely or partially, the relevant property returns to the residuary estate. This occurs unless the Will expressly provides otherwise. Section 32 is significant. It permits the admission of extrinsic evidence, including evidence of the testator’s actual intention. As the Will’s wording is, on its face, either meaningless or ambiguous. It is also permitted when the wording becomes uncertain in the context of surrounding circumstances. These provisions guide courts in interpreting ambiguous testamentary instruments. They also help the executor’s intentions to the extent the law allows.
Brian Patrick Pendergast (the deceased) was a long-time grazier from Hobbs Range near Moonbah. The deceased lived south of Jindabyne in the NSW Snowy Mountains. He died on 19 August 2023 at the age of 87. The deceased left a Will dated 28 July 2015. One of his surviving children, Karl Pendergast, is the plaintiff. The defendants are Lordona Pendergast and Errol Pendergast. Lordona is another of the deceased’s children. Errol is the deceased’s brother. They were appointed as executors under the Will.
At the time of death, three of the deceased’s four children survived him: Karl, Lordona, and Jeremy Pendergast. His fourth child, Dean Pendergast, predeceased him. Dean was survived by his wife, Tarina Pendergast, and two children.
Karl filed a summons on 21 November 2024. He sought declarations about the correct construction of the Will. He also requested related relief. At the hearing, he pressed two principal claims: first, a declaration of entitlement under clauses 2.4, 2.5, 2.6, and 3.3 of the Will. This claim pertains to one-quarter of the net value of the deceased’s estate. Secondly, he sought an order of payment of his costs from the estate.
Background to the dispute
The interpretive dispute concerned several provisions in the Will. These provisions adjust children’s entitlements, showing the value of land earlier transferred to Karl during the deceased’s lifetime. On 9 November 2005, the deceased gifted Karl two parcels of land, namely Lot 22 and Lot 29. Karl later sold Lot 22 in 2016 but retained Lot 29.
The Will defines these parcels collectively as ‘Karl’s Land.’ Requiring assessment of their value at the deceased’s death, regardless of whether Karl still owned them. The estate calculation involves two distinct steps:
- Calculate the ‘augmented estate’ by summing the net estate and Karl’s Karl’s Land.
- The document describes the beneficiaries’ shares. Under clause 3, the deceased’s other children are each entitled to one-quarter of the augmented estate. If a child predeceased, substitution is made for grandchildren. Clause 3.3 stipulated that Karl was to get a quarter share of the augmented estate, less Karl’s Land. Clause 3.4 dealt with the redistribution of Karl’s share if it failed.
The proper construction of these provisions and Karl’s entitlement formed the core issue to be determined.
Parties’ Submissions on Construction
Karl argued that clause 3.3 effectively gives him one quarter of the net estate. He believes that the reference to Karl’s Land can be disregarded because the calculation ultimately “cancels out”.
Alternatively, Karl submitted that reading clause 3.3 excludes the deduction of Karl’s Land. as it was not part of the estate.
The executors contended that the Will requires Karl’s Land to be added to the net estate. Forming an “Augmented Estate”. Each of the four beneficiaries is notionally entitled to one quarter of that amount. Yet, the value of Karl’s Land reduces Karl’s entitlement. They submitted that Lordona, Jeremy, and Dean each get one quarter of the Augmented Estate. Karl receives one-quarter of the Augmented Estate, minus Karl’s Land. The Court generally preferred this construction.
Proper Construction of the Will
If the value of Karl’s Land exceeds one quarter of the Augmented Estate, Karl receives nothing. Additionally, the gift in clause 3.3 fails. In that event, clause 3.4 operates so that the net estate is divided equally between Lordona, Jeremy and Dean. If the value of Karl’s Land is less than one quarter of the Augmented Estate, Karl gets the difference. The difference is between those two amounts. This is done under clause 3.3.
Karl’s primary submission is unconvincing because it misapplies the mathematical formula outlined in the Will. Clause 3.3 requires the addition of the net estate and the value of Karl’s Land before being divided by four. Karl’s approach instead divides the net estate by four first. Only then does it introduce the value of Karl’s Land. This is not what the clause provides.
Under Karl’s interpretation, the value of Karl’s Land becomes meaningless. It is both added and subtracted, which produces no net effect. A construction that reduces an express provision to a pointless exercise strongly suggests that the interpretation is incorrect.
Symbolically, the competing calculations are:
Karl’s approach:
(Net Estate ÷ 4) + Karl’s Land − Karl’s Land
Correct approach:
(Net Estate + Karl’s Land) ÷ 4 − Karl’s Land
Response to Karl’s Substitute Argument
Karl’s other contention is also unpersuasive. Clauses 3.2 and 3.3 do not try to dispose of property that is not part of the estate. They use Karl’s Land in a notional calculation. This determines what Karl is entitled to get from the net estate. Any payment to Karl necessarily comes from estate assets. Distribution follows clause 3.4 if clause 3.3 is not fulfilled, and in every instance, beneficiaries get assets only from the net estate. Under the Succession Act 2006, the Court can use evidence to clarify a Will. This is only possible if its wording is meaningless or ambiguous. Still, here, aside from minor inconsistencies with capitalisation, there is no significant ambiguity needing the use of section 32. This conclusion aligns with the principles established in Fell v Fell and Perrin v Morgan. They demand interpreting a Will by its plain and ordinary meaning, within the context of the whole document.
In Estate of Pendergast; Pendergast v Shingles [2025] NSWSC 909, the language of the contested clauses is clear. Thus, the Court can properly construe the Will without resorting to extrinsic evidence. The preferred construction is available on the face of the document itself.
Section 32 of the Succession Act 2006 (NSW) applies in specific situations. One such situation is when the wording of a Will makes a provision unclear or uncertain. It also applies when it makes it incapable of sensible operation. This uncertainty is obvious from the text itself, which is a patent ambiguity. Alternatively, it only emerges when reading the Will against the surrounding circumstances, which is a latent ambiguity. For example, a patent ambiguity arises in a clause that refers to a non-existent property. This creates uncertainty upon mere reading of the text. On the other hand, a latent ambiguity can occur when a Will mention’s the ‘family beach’ house.’ The testator owns two beach houses. The Will is silent as to intention.
Situations that enliven s 32 include:
- A gift to “my grandson “George,” where the testator has two grandsons with that name.
- A bequest of “my property at 123 Main “street.” The testator in fact owned or lived in “Unit 5, 123 Main street.”
- A provision drafted so imprecisely or poorly exists. For example, this can occur in an informal or homemade Will. Can’t decide its meaning from the wording alone.
The construction of a Will begins with the ordinary and plain meaning of its words. These words are read in the context of the instrument as a whole. The Court’s task is to decide the testator’s main aim and intention. This is derived from the language used and considers admissible extrinsic evidence. The Court does not focus on what the testator subjectively meant to say. It does not consider what they wished to achieve. Instead, it is concerned with what their words, properly construed, convey.
Text and context are the primary guides. Construction is not a purely mechanical exercise, because language is inherently imprecise and setting shapes its meaning. Thus, the Court reads the Will as a whole. It does this before settling on the meaning of any disputed provision. This approach helps decide whether other parts of the document shed light on the contested language. If nothing else affects its meaning, the clause stands alone. Its interpretation considers the topic matter and surrounding circumstances. If there is extra context, it informs the interpretation.
The Court applies the “armchair principle.” It assumes the position of the testator. The Court considers the material facts and circumstances known to them. This is based on what was known at the time the deceased made the Will. Evidence of surrounding circumstances is admissible to supply context for the words used. Nevertheless, it does not give what the testator actually thought, felt, or intended outside the Will. Under the general law, direct evidence testator’s actual intention is admissible only in cases of equivocation. This occurs when the language applies equally to two or more persons or things. It also occurs when the language otherwise lacks resolution.
In New South Wales, s 32 of the Succession Act 2006 modifies the general law. It allows the admission of evidence, including evidence of intention. This is applicable where the language of the Will is meaningless. It also applies where the language is ambiguous on its face or ambiguous in light of surrounding circumstances. Nonetheless, not to create ambiguity. The section supplements, rather than displaces, the armchair principle.
Importantly, ambiguity is not the same as the difficulty of construction. A Will is not ambiguous merely because it is hard to interpret. It is also not ambiguous because reasonable minds differ about its meaning. Ambiguity exists only where the language genuinely bears two possible meanings, when there is only one intended. This distinction maintains the fundamental necessity that a Will must speak through its written terms. It also prevents the admission of subjective evidence too readily.
The Court also consider discerning a coherent scheme of distribution from the Will as a whole. The language is sometimes complex, obscure, or leads to improbable results if read literally. Identifying such a scheme can be a powerful aid to construction. The Court strives to give effect to it where possible. Still, if the language of the Will is unambiguous, searching for a broader scheme adds little. It can’t override the plain meaning of the words.
Conclusion
The proper construction of the Will depended on its language, read objectively, in context, and as an integrated whole. The Court rejected the plaintiff’s interpretation, finding that it departed from the natural and ordinary meaning of the words used. Slattery J ordered the plaintiff to pay estate’s costs on an ordinary basis. Surrounding circumstances were relevant only to illuminate context, not to form any subjective or personal intention of the testator. Extrinsic evidence remained tightly confined. It was enlivened only by s 32, where the language was genuinely ambiguous or meaningless. It was not merely difficult to apply. While a clear testamentary scheme help resolve uncertainty, it can’t override clear and unambiguous language. Ultimately, the Court reaffirmed that difficulty in construction does not mean the language is ambiguous. Fidelity to the words of the Will remains paramount.