July 2025 – Nicola Sharp

Earlier this month, Justice Mark Richmond gave a judgment in the matter of The Estate of Thwaite. The case was a request for judicial advice for the interpretation of a clause in the Will of the late Gordon John Thwaite.

This case highlights the importance of clearly expressing your intentions in your Will. If the Court is required to interpret a Will, it can delay the administration of the estate, incur unnecessary legal costs and it may lead to an unexpected outcome.

The deceased’s Will said:

“To my son Kim Gordon Thwaite (DOB #) I GIVE the option of purchasing my half-share of the property known as 54 Kalmda Road, BAR POINT, NSW 2083, at the Valuer-General’s valuation figure at the time of my death.”

One of the questions asked of the Court was whether the term “valuation figure” was for the entire property or for the deceased’s half interest in the property.

In reaching his decision, Justice Richmond relied on section 32 of the Succession Act and the armchair principle.

Section 32 of the Succession Act states that:

“(1) In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will –

    • meaningless, or
    • ambiguous on the face of the will, or
    • ambiguous in the light of the surrounding circumstances. …”

The armchair principle invites the court to place itself in the arm-chair of the will maker and consider the circumstances by which the will maker was surrounded when they made their will so the court is better able to understand their intention.

After considering the evidence, Justice Richmond determined that it “would be very odd given the deceased’s knowledge … that he would have intended that [the beneficiary] be required to pay an amount equal to the unimproved value of the entire property, in effect paying twice for the half share he previously acquired in 2006”.

This case is a timely reminder of having a well-drafted Will. When instructing your solicitor, it’s essential not only to provide a clear list of your assets and how you want to distribute them, but also to explain why you’ve made those choices. While these may be very personal discussions, they allow your solicitor to:

  1. give you detailed advice – for example, if your proposed distributions may invite a challenge to your estate; and
  2. accurately capture your wishes to ensure your intentions are carried out after your death.

If you’d like us to review or update your Will, speak with one of our experienced lawyers at Harris Freidman today. We’re here to help you plan with confidence.

Nicola Sharp

Associate

Harris Freidman Lawyers