Aun v Vitim Pty Ltd
[2025] VSC 265
•16 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 01202
| HENRY YUN LYE AUN | Plaintiff |
| v | |
| VITIM PTY LTD (ACN 008 573 224) in its capacity as trustee of the AUN FAMILY TRUST & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2024 (Hearing of the originating motion) |
DATE OF JUDGMENT: | 16 May 2025 |
CASE MAY BE CITED AS: | Aun v Vitim Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2025] VSC 265 |
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TRUSTS – Distribution of assets to trusts under a will – Lost trust deeds – Secondary evidence available to declare the terms of the trusts – General class of beneficiaries under the lost trusts do not extend to siblings – Lost trusts each contain an appointer clause – Supreme Court (General Civil Procedure) Rules 2015, O 54.
WILLS AND ESTATES – Application for judicial advice – Where trusts specified as beneficiaries in the will are uncertain – Armchair principle – Consideration of extrinsic circumstances – Irreconcilable uncertainty in one named beneficiary, certainty in the other –Trust cannot be established after the testator’s death to fit the description of a named beneficiary – Wills Act 1997 (Vic) s 36 – Re Niall [2019] VSC 423 – Craven v Bradley (2021) 63 VR 567 – Greenham v Greenham [2020] VSC 749 – Bullock v Bennett (1855) 7 De G M&G 283 – Radford v Wills (1871) Ch App 7.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Sparke KC | Mazzeo Lawyers |
| For the First to Fourth Defendants | Mr P Pascoe | Hicks Oakley Chessell Williams |
| For the Fifth Defendant | Mr S T Pitt KC | Hall & Wilcox |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Family members and the trusts (the subjects of the proceeding)............................................. 2
Henry’s originating motion.............................................................................................................. 3
Relevant principles....................................................................................................................... 3
Secondary evidence relevant to the AFT2 and the AFT3........................................................ 4
Parties’ submissions.................................................................................................................... 14
Analysis and determinations..................................................................................................... 17
Julia’s summons............................................................................................................................... 20
Legislation and relevant principles.......................................................................................... 22
Henry’s family trust.................................................................................................................... 23
Analysis and answer......................................................................................................... 27
The AFT1...................................................................................................................................... 32
Submissions, analysis and answer.................................................................................. 32
Proposed orders................................................................................................................................ 32
HER HONOUR:
Introduction
This proceeding relates to the distribution of assets in the estate of Mrs Chan Wai King[1] (the deceased), who died on 7 September 2014, leaving a will dated 28 July 2005 (the Will). The estate has not yet been administered.
[1]The deceased is identified as Wai King Chan on the probate parchment.
The plaintiff, Henry Tun Lye Aun, is one of the deceased’s children.[2] The fifth defendant, Julia Ma, is also one of the deceased’s children, and the sole executrix of the Will.
[2]In the interests of clarity and without intending any disrespect, I will refer to the deceased’s children by their first names.
Prior to her death, the deceased and her husband had established various trusts. Under the Will, the deceased bequeathed some of her assets to those trusts. To date, the trust deeds for two of the trusts have not been located.
In an originating motion issued by Henry,[3] I am required to determine the following issues:
[3]Originating motion dated 7 April 2022, and issued pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules2015.
(a) Whether the trust deeds for the two trusts have been lost;
(b) If so, whether the terms of those trusts can be ascertained as a matter of certainty; and
(c) If so, who the beneficiaries of each trust are, and whether each trust deed contains an appointor clause.[4]
[4]Whilst the originating motion did not seek a determination as to the existence of an appointor clause, by consent, the parties agreed I should also determine this.
The parties also agreed that I should hear and determine a summons filed in the proceeding by Julia.[5] In the summons, Julia seeks directions from the Court as to the construction of certain clauses in the Will which refer to two trusts, the identities of which are uncertain. Julia seeks directions on this so as to enable her to distribute estate assets in accordance with the terms of the Will.
[5]Further amended summons filed on 17 December 2024.
Family members and the trusts (the subjects of the proceeding)
The deceased was married to Aun Ee Han (Mr Aun), who died on 6 March 2002.
Together the deceased and Mr Aun had eight children. One child, Nancy, died before the deceased. The seven children who survived the deceased were:
(a) Henry;
(b) Julia;
(c) Edward Aun, who was originally a co-executor of the will, but is now deceased;
(d) Catherine Itt;
(e) Alice Ghee Tan;
(f) William Han; and
(g) Frances Engip.
As noted above, the deceased and Mr Aun established various trusts. Some of these trusts were based in Hong Kong,[6] and some in Australia (the Australian trusts).
[6]The Hong Kong trusts are not the subject of this proceeding.
The Australian trusts are:
(a) The Aun Family Trust (the AFT).
(b) The Aun Family Trust Number 2 (the AFT2).
(c) The Aun Family Trust Number 3 (the AFT3).
(d) The Aun Family Trust – 1984 (the AFT 1984).
The trustees for each of the Australian trusts are the first to fourth defendants to the proceeding. These are as follows:
(a) Vitim Pty Ltd, in its capacity as the trustee of the AFT. It is the first defendant in this proceeding.
(b) Hanaevilla Pty Ltd, in its capacity as the trustee of the AFT2. It is the third defendant in this proceeding.
(c) E & H Aun Brothers Pty Ltd, in its capacity as the trustee of the AFT3. It is the fourth defendant in this proceeding.
(d) Vitim, in its capacity as the trustee of the AFT 1984. It is the second defendant in this proceeding.
Henry’s originating motion
When Henry commenced this proceeding by way of originating motion, none of the deeds for the Australian trusts could be located. In November 2023, the original trust deeds for the AFT and the AFT 1984 were found. However, to date, the trust deeds for the AFT2 and the AFT3 have not been located. Therefore, as noted in [4], my determination of the originating motion is limited to those questions pertaining to the AFT2 and the AFT3.
Relevant principles
The issues raised in Henry’s originating motion and Julia’s summons require the exercise of the Court’s powers under O 54 of the Supreme Court (General Civil Procedure) Rules 2015, and Part 4 of the Wills Act 1997. These are civil issues, and the burden of proof imposed on the parties to establish any alleged facts (or inferences to be drawn from them) is the balance of probabilities as provided by s 140 of the Evidence Act 2008.[7]
[7]Evidence Act 2008 (Vic) s 140. See also Vanta Pty Ltd v Mantovani (2023) 72 VR 19 [83] (‘Vanta (Appeal judgment)’).
In an application of this kind, where the Court is asked to determine whether a trust deed has been lost, as a starting point, the Court must be satisfied the trust existed. Next, the Court must be satisfied that the trust deed is unavailable, after reasonable enquiries and searches have been made to locate it.[8]
[8]Re Dove Family Trust [2022] VSC 625, [6].
If the Court is satisfied the deed is lost, then it must consider whether any, and which, terms of the deed can be established on the available secondary evidence.[9] The Court must be satisfied there is sufficient proof of the essential terms of the deed, such that the trust does not fail for uncertainty.[10]
[9]Evidence Act 2008 (Vic) s 48(4); Vanta (Appeal judgment) (n 7), 38 [92].
[10]Vanta (Appeal judgment) (n 7), 38 [92].
There must be ‘three certainties’ in an express trust, being:
(a) certainty of intention;
(b) certainty of subject matter; and
(c) certainty of object.[11]
[11]Ibid 39 [96]. See also Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62, 71 [7].
In the absence of these three certainties, the trust will fail for uncertainty.
Secondary evidence relevant to the AFT2 and the AFT3
As noted above, the original deeds of the AFT and the AFT 1984 were located subsequent to the initiation of this proceeding, and are now in the possession of Vitim, the named trustee of both trusts. Copies of these deeds were tendered. The AFT and the AFT 1984 trust deeds were drawn by solicitors, Moules.
The relevant parts of clause 1(b)(iii) of the AFT deed read as follows:
“the Beneficiaries” shall mean:
A. The said [Mr Aun] and the children and remoter issue of the said [Mr Aun];
B. The spouses, former spouses, widows and widowers of the persons named or described in the immediately preceding sub-paragraph A.
….
The relevant parts of clause 1(b)(iii) of the AFT 1984 deed read as follows:
“the Beneficiaries” shall mean:
A. [Nancy], [Edward], [Henry], and [Catherine] all of 22 Hunter Street, Carnegie in the state of Victoria and [Alice] of 4 Long-staff Street, Carnegie aforesaid.
B. The children and remoter issue of the persons named in A;
C. The spouses, former spouses, widows and widowers, of the persons named or described in A. and B.
…
In this judgment, for convenience of the reader, I will refer to the beneficiaries identified in subparagraph A as the central beneficiaries, and the beneficiaries identified in the later subparagraphs (B in the AFT and B and C in the AFT 1984) as the general class of beneficiaries.
The AFT contains an appointor clause at clause 20 of the deed. It provides as follows:
20. The power at any time or times to -
(a)remove from office any trustee or trustees for the time being hereof;
(b)to appoint a new trustee or trustees in place of any trustee or trustees so removed or in addition to any existing trustee or trustees;
and all statutory powers of appointing new or additional trustees hereof (such powers of removal, appointment and the statutory powers are hereinafter called “the said powers”) shall be exerciseable [sic] in the manner following:
(c)the said powers shall be vested in the said [Mr Aun] during his lifetime and for so long as he shall be able and willing to exercise the same;
(d)upon the death of the said [Mr Aun] or upon him ceasing to be able and willing to exercise the said powers, the same shall be vested in the wife of the said [Mr Aun], namely, [the deceased] during her lifetime and for so long as she shall be able and willing to exercise the same.
The AFT 1984 does not contain an appointor clause.
In around May 1992, Mr Aun engaged solicitors Wisewoulds to advise him as to the manner in which he and the deceased, could best exercise control over the assets and income contained within or received by the Australian trusts. Wisewoulds provided a letter of advice addressed to Mr Aun dated 18 May 1992 (the Wisewoulds letter). In this letter, Wisewoulds partner Mr Don Axup (Mr Axup) provided specific advice in relation to each trust.
The Wisewoulds letter provided details as to the Australian trusts as follows:
We are instructed as to the existence of the following entities:-
1. [AFT]
Trustee:
Vitim Pty. Ltd.
Shareholders:
H.T.L. Aun[12]
E.T.J. Aun[13]
Directors:
H.T.L. Aun
E.T.J. Aun
C.G.I. Poon[14]
A.G.G. Tan[15]
Deed of Trust:
14 January 1983.
Beneficiaries:
Aun Ee Han,[16] children, spouses, eligible trust and eligible company.
[12]Henry, as identified at [2] above.
[13]Edward, as identified at [7(c)] above.
[14]Catherine, as identified at [7(d)] above.
[15]Alice, as identified at [7(e)] above.
[16]Mr Aun, as identified at [6] above.
2. [AFT 1984]
Trustee:
Vitim Pty. Ltd.
Shareholders:
As above.
Directors:
As above.
Deed of Trust:
8 May 1984.
Beneficiaries:
N.C.C. Aun,[17] E.T.J. Aun, H.T.L. Aun, C.J.I. Poon and A.G.G. Tan, children, spouses, eligible trust and eligible company (but not parents).
[17]Nancy, as identified at [7] above.
3. [AFT2]
Trustee:
Hanaevilla Pty. Ltd.
Shareholders:
As above.
Directors:
As above.
Deed of Trust:
15 March 1983.
Beneficiaries:
H.T.L. Aun, E.T.J. Aun, eligible trust, eligible company and parents and family members.
4. [AFT3]
Trustee:
E. & H. Aun Brothers Pty. Ltd.
Shareholders:
As above.
Directors:
H.T.L. Aun
E.T.J. Aun
Deed of Trust:
13 April 1983.
Beneficiaries:
E.T.J. Aun, H.T.L. Aun, eligible trust, eligible company and parents and other family members.[18]
[18]The underlining of the references to ‘parents’ in the Wisewoulds letter is for no known reason (save to note that the letter was addressed to one of the parents). The parties agreed that nothing turned on the emphasis of these words in the determination of the originating motion.
Thereafter, Mr Axup noted that the Australian trusts were discretionary, and provided advice as to how discretionary trusts worked, including the role and powers of the trustee, and the reason for an appointor. Thereafter, Mr Axup provided advice in relation to ‘control’ of the directors of each trustee company by its shareholders, and whether there was an appointor or guardian who may remove a trustee. In doing so, Mr Axup examined each trust and advised as follows:
1. [AFT]
(a)
The beneficiaries include you and your family.
(b)
By Clause 20 of the Trust Deed you during your life and upon your death, Chan Wai King are appointed guardians or appointors, and could therefore remove Vitim Pty. Ltd. as trustee at any time and assume absolute control of the Trust by the appointment of a trustee over which you have complete control.
We advise: -
(i)
You could now appoint an independent trustee, or preferably
(ii)
Effect a change in the shareholding in Vitim Pty. Ltd. whereby you and Chan Wai King assume ownership of the shares in the trustee company.
(iii)
Upon having assumed control of the shares in the trustee company, you may then prefer to change the directors of the trustee company.
2. [AFT 1984]
(a)
The range of beneficiaries does not specifically include you and Chan Wai King.
(b)
The Deed does not provide for the appointment of an appointor or guardian.
We advise: -
(i)
By Clause 17 of the Trust Deed, the trustee could vary the deed by introducing the concept of an Appointor or Guardian, or preferably
(ii)
Effect a change in the shareholding in Vitim Pty. Ltd. whereby you and Chan Wai King assume ownership of the shares.
(iii)
Upon having assumed control of the shares in the trustee company, you may prefer to change the directors of the trustee company.
(iv)
The Trust Deed has the concept of an "eligible trust" or "eligible company" and it is therefore possible that once control of the trustee has been obtained, to distribute the assets and income to the Aun Family Trust of which you are the principal beneficiary.
We understand that there are tax losses in this trust at present and that it may be preferable to “retain” the income within this trust, it may therefore be preferable therefore to simply focus on assuming control of Vitim Pty. Ltd.
3. [AFT2]
(a)
The principal beneficiaries are H.T.L. and E.T.J. Aun, although it is possible for you and Chan Wai King to qualify as beneficiaries.
(b)
The trust provides “Appointors” who are H.T.L. Aun and on his death, E.T.J. Aun.
We advise: -
(i)
H.T.L. Aun should immediately appoint you as the “Appointor”.
(ii)
Effect a change in the shareholding in Vitim Pty. Ltd. whereby you and Chan Wai King assume ownership of the shares in the trustee company.
(iii)
Upon having assumed control of the shares in the trustee company, you may prefer to change the directors of the trustee company.
(iv)
The Trust Deed has the “eligible company” and “eligible trust” concepts and at any time the assets and income of the Trust could be transferred to The Aun Family Trust, if so desired.
4. [AFT3]
(a)
The principal beneficiaries are E.T.J. Aun and H.T.L. Aun, but the description of the “beneficiaries” is sufficiently wide to include yourself and Chan Wai King.
(b)
E.T.J. Aun and H.T.L. Aun are nominated as the Appointors.
We advise: -
(i)
E.T.J. Aun and H.T.L. Aun should immediately appoint you as the “appointor”.
(ii)
Effect a change in the shareholding in Vitim Pty. Ltd. whereby you and Chan Wai King assume ownership of the shares in the trustee company.
(iii)
Upon having assumed control of the shares in the trustee company, you may prefer to change the directors of the trustee company.
(iv)
The Trust Deed has the “eligible company” and “eligible trust” concepts and at any time the assets and income of the Trust could be transferred to the Aun Family Trust, if so desired.
The Wisewoulds letter concluded with the following summary:
In our view, it is not necessary to consider winding up the trusts or transferring properties between trusts simply for the purposes of procuring control over the trusts and their assets to you. In our opinion, all that needs to be done, is for you to secure control of the shares, and therefore the appointment of the Board of Directors of the relevant trustee companies and to secure your appointment as [a]ppointor over the [AFT2] and [AFT3].
In addition to the Wisewoulds letter, the parties tendered numerous documents relevant to the existence of the AFT2 and the AFT3.[19] This included:
[19]Numerous affidavits were tendered by Henry, Julia, Alice, and Catherine, together with an affidavit from solicitor, Tode Terzioski, which were relevant to both the originating motion issued by Henry and the summons filed by Julia. None of the deponents were required for cross-examination.
(a) details of the bank accounts operated on behalf of Hanaevilla and E & H;
(b) financial statements for the AFT2 and the AFT3 for the financial years 2010 to 2022;
(c) an historical title search for the property located at 70 Oakleigh Road, Carnegie. This recorded that on 9 December 1963, Mr Aun became the registered owner, and that on 25 October 1985, the property was registered to Hanaevilla (the address of which was noted to be 22 Hunter Street). The consideration for this transfer was recorded as Mr Aun’s desire to make a gift.
(d) an historical title search for the property located at 72-72A Oakleigh Road, Carnegie. This recorded that on 27 June 1984, Henry became the registered proprietor, following purchase of the property from the previous (unrelated) registered owner for a sum of $57,000. It then recorded that on 27 March 1986, the property was registered to Hanaevilla. The consideration for this transfer was recorded as Henry’s desire to make a gift.
(e) an historical title search for a property located at 22 Rigby Avenue, Carnegie. This recorded that on 29 September 1971, Mr Aun and the deceased became the registered owners. It then recorded that on 13 July 1983, the property was transferred to E & H, in consideration for $84,702.00. A mortgage was registered by Westpac against the property on 7 May 1992, and the title was transferred to two new (unrelated) purchasers, on 4 February 1994. Thereafter the Westpac mortgage was discharged.
The parties deposed to having undertaken extensive searches and investigations in an attempt to locate the original trust deeds for the AFT2 and the AFT3. This included:
(a) searches of the studies of Mr Aun and the deceased, located at their homes in Carnegie and Hong Kong;
(b) requests to law firms which had previously advised Mr Aun and the deceased in the drafting of the Australian trusts, the drafting of their wills, and/or advised them in relation to their affairs;
(c) requests to accounting firms which had provided services to related family members and companies;
(d) requests to banks and financial entities associated with loans related to trust property; and
(e) a request to the Australian Taxation Office.
In an affidavit dated 19 April 2022 (Henry’s first affidavit), Henry deposed as follows:
31.I can recall the Australian Trusts being established. I recall having discussions with my late father about the Australian Trusts at the time. My father and I had a lot of dealing with each other at that time. Whilst I do not recall the exact conversations, he told me he wanted to establish trusts in Australia. He told me that he wanted to establish trusts in Australia for his sons to receive an income. He said he wanted to set up trusts so that the assets were protected and that we received the income. Based on those discussions, my understanding is that the [AFT2] was originally established with the intention that it would be used to hold property for my benefit, and the benefit of my (then future) children. Based on those discussions I also believe that the [AFT3] was originally established with the intention that it would be used to hold property for Edward’s benefit, and the benefit of his children.
….
35.In about early 1993, my late father asked me to execute various documents in relation to the Australian Trusts. This occurred in the context of me having been in financial difficulties at that time. I signed all of the documents which my late father presented to me to sign. I trusted my late father. I did not peruse the documents before signing them. I cannot recall what those documents were. I did not keep copies. I recall that he said they were in relation to the Australian Trusts. Given a reference in the Wisewoulds letter to me being an appointor, they may have had something to do with that appointment.
Henry also exhibited documents relevant to ownership of shares in Hanaevilla and E & H, which demonstrated the following:
(i) Hanaevilla was registered in 1983 as a company limited by shares. Of its 100 shares, 99 were issued to Henry. The other was issued to Edward.
(ii) E & H was also registered in 1983 as a company limited by shares. Of its two shares, Henry and Edward were issued one each.
Henry affirmed a further affidavit on 3 December 2024 (Henry’s second affidavit). In this affidavit, Henry deposed as follows:
2.…At paragraph 35 of [Henry’s first affidavit], I referred to signing documents, I do not know the contents of those documents, and speculated that they may have had something to do with the fact I was named as ‘appointor’, according to the Wisewould[s] letter…
3.I wish to make clear that I do not know what those documents were and I was speculating that they may have had something to do with my being named as appointor, simply based on the existence and reference in the Wisewould’s (sic) letter. I did not read the documents and do not recall what they were.
4.I can say that my father (Aun Ee Han) did not expressly ask me to resign as Appointor, or to appoint him as Appointor. Neither did he ask me to sign a document which altered the terms of any of the Australian trusts to remove any ‘Appointor’ clause. Neither did anyone else ask to resign as appointor nor alter the terms of any of the Australian trusts to remove the ‘Appointor’ clause.
Henry exhibited documents to his second affidavit from the Australian Securities and Investment Commission (ASIC) which his solicitor had obtained to show that Henry had signed annual returns as director for Hanaevilla on 31 December 1991 and 31 December 1992, and also a change of address for the offices of Hanaevilla and Vitim on 30 March 1993.[20]
[20]Relevant to a submission advanced by Henry in Julia’s summons, I note that on this day the registered office of Hanaevilla was changed to 24th floor of 459 Collins Street, Melbourne.
In an affidavit dated 27 May 2022, Julia deposed to the following:
8(b) In 1991, Henry’s business went bankrupt and my parents discovered that Henry had mortgaged all the family properties in Australia to support his failing personal business. This led to most of the properties being sold by the banks as mortgagee in possession. My father may have sought advice regarding the trust deeds from Wisewould Mahony at this time due to concerns around Henry’s circumstances and their impact on the trusts.
…
11...it has long been understood between my siblings and me that the [AFT3] previously owned … (22 Rigby Avenue, Carnegie). This was a four bedroom house with four separate units situated towards the back of the house. This house was mortgaged by Henry during the period he was attempting to salvage his failing business and was eventually repossessed by the bank and sold by mortgagee sale.
…
14…based on my observations of my father and my conversations with my sister Alice, it is my understanding that my father did not approve of Henry’s business venture and that he had advised Henry to gain practical business experience within an established company prior to embarking on a personal business endeavour. Given my father’s meticulous nature, and the several issues with Henry’s business at that time, I believe that my father wanted to remove Henry from any positions of control within the trusts.
Parties’ submissions
The parties shared a common position, that I could be satisfied of the following matters:
(a) The AFT2 and the AFT3 trust deeds are lost;
(b) The available secondary evidence is sufficient such that the Court can be satisfied that these trusts existed; and
(c) The available secondary evidence is sufficient for the Court to declare the terms of these trusts.
Both the AFT and the AFT 1984 are identical in their terms, save for the name of the trust; the identity of the settlor, trustee and shareholders; the relevant jurisdiction (the AFT was subject to the laws of the Australian Capital Territory and the AFT 1984 was subject to the laws of Victoria) (trust specific particulars) and the fact that the AFT contains an appointor clause, whereas the AFT 1984 does not.
The parties agreed that, given the proximity of the dates of the trust deeds for the AFT2 and the AFT3,[21] to the AFT and AFT 1984, it was probable the same law firm authored and prepared the AFT2 and the AFT3. The parties also shared the common view that, having regard to the terms of the Wisewoulds letter, the Court could be satisfied on the balance of probabilities that the terms of the AFT2 and the AFT3 are the same as the AFT, save for the trust specific particulars.
[21]As noted in the Wisewoulds letter.
However, the parties did not agree on who the beneficiaries of the AFT2 and the AFT3 described in the Wisewoulds letter as ‘family members’ were. They also did not agree on whether there was an appointor clause under each of the two trusts.
Whilst the parties agreed the general class of beneficiaries in both of these trusts extended to the parents of the central beneficiaries, they did not agree on which other family members were covered. Henry submitted that the scope of the AFT2 and the AFT3 limited the general class of beneficiaries to the children and remoter issue of the central beneficiaries. The third and fourth defendants (the trustee parties) submitted that the general class of beneficiaries also included siblings, and spouses and offspring of siblings.
In support of Henry’s submission that the term ‘family members’ be limited to the children and remoter issue of the central beneficiaries, he referred me to the general classes of beneficiaries in the AFT and the AFT 1984, neither of which included siblings of the central beneficiaries. Henry submitted that if there was a difference between the general classes of beneficiaries in either of these deeds, when compared with the AFT2 and the AFT3, it is reasonable to expect that Mr Axup would have expressly noted this in his detailed letter of advice. It was put that I could be satisfied that Mr Axup used the term ‘family members’ to refer to the spouses and children of the central beneficiaries. Henry submitted there was no foundation for the extension of this term to siblings.
Further, Henry relied upon the purchase and transfer of 72-72A of Oakleigh Road from his name, into Hanaevilla, the AFT2’s trustee company. Henry submitted this was consistent with his long term understanding, based on what his father had told him, that the AFT2 was to be for the benefit of him and his children.
Henry submitted that the words of the Wisewoulds letter, when considered in light of the objective facts, support a conclusion that the AFT2 and the AFT3 were established for Henry and Edward, and their spouses and children, but not their siblings.
The trustee parties submitted that the mere fact Henry and Edward are the central beneficiaries of the AFT2 and the AFT3, does not limit who the other beneficiaries are. It was submitted that Mr Axup’s reference to ‘family members’ in respect of the AFT2 and ‘other family members’ in the AFT3 was mere shorthand by him in the context of the people he was advising: Mr Aun and his wife – the parents of those family members. It was submitted that a wider definition of family members, which incorporated siblings, was consistent with the intention of the discretionary trusts, which was to offer flexibility in the distribution of assets. It was also put that this construction was consistent with the wider context and common theme of the Australian trusts, with each of their names including the term ‘Aun Family Trust.’
As to the existence of an appointor clause in the AFT2 and the AFT3, Henry submitted that, based upon the contents of the Wisewoulds letter, I should be satisfied there is such a clause. However, the trustee parties submitted I should find that, subsequent to the provision of the advice contained in the Wisewoulds letter, the AFT2 and the AFT3 were varied so as to remove the appointor from each trust.
The trustee parties submitted that Henry’s first affidavit contained an admission by him against interest, when he acknowledged that he may have signed something in 1993, regarding the appointment under the Australian trusts.[22] It was put that Henry’s subsequent assertion in his second affidavit that what he signed was not his removal as appointor,[23] was self-serving, and ought not be accepted by the Court. It was submitted that Mr Aun sought the advice from Wisewoulds to enable him and his wife to have greater control of their assets, and that such advice extended to the removal of appointors. Noting Henry had conceded this was at a time when he was in financial difficulties, and that he may have signed documents in 1993 regarding the appointment, the trustee parties submitted I should be satisfied that Mr Aun acted on the advice contained in the Wisewoulds letter, and that a document was created in about 1992 that removed Henry as the appointor of both the AFT2 and the AFT3.
[22]See [29] above.
[23]See [31] above.
Henry denied that Mr Aun ever removed him as appointor. It was submitted that the contents of Henry’s first affidavit was not appropriately characterised as an admission against interest, but was merely a statement that he may have signed something to do with the appointor clause but did not peruse the documents. The contents of Henry’s second affidavit was in response to the trustee parties’ submission that the appointor clause had been revoked.
Henry submitted that, if the Court was to determine that the appointor clause had been revoked or amended in the AFT2 and the AFT3, the trustee parties carried the onus of persuading the Court of this. It was submitted that there was no direct evidence of this occurring, and that the trustee parties submissions were purely speculative.
Analysis and determinations
Given the secondary evidence before me, I am satisfied as to the establishment of the AFT2 and the AFT3, and that the trust deeds for each are lost.
The AFT deed was executed on 14 January 1983 and the AFT 1984 deed was executed on 8 May 1984. The Wisewoulds letter records the date of the AFT2 as being 15 March 1983 and the date of the AFT3 as being 13 April 1983. I am satisfied that the AFT2 and the AFT3 were established on these dates, and they were ‘book-ended’ by the AFT and the AFT 1984.
Both the AFT and the AFT 1984 trust deeds were drawn by the same solicitors. Save for there being no appointor clause in the AFT 1984 trust deed, the terms of these two trust deeds are identical, save for the trust specific particulars.
Considering all of the evidence before me, and in particular noting the date of the Australian trusts, the similarities between the AFT and the AFT 1984, and the contents of the Wisewoulds letter, I am satisfied that the essential terms of the AFT2 and the AFT3 can be identified, and that there is certainty in the creation of those trusts; certainty as to their subject matter; and certainty as to their objects. None of the parties contended otherwise.
In view of these conclusions, I am now required to determine the following questions:
(iii) Who are the beneficiaries under the AFT2 and the AFT3?
(iv) Do either or both of the AFT2 and the AFT3 contain an appointor clause, in the same or similar terms as that expressed in paragraph 20 of the AFT?
In relation to the beneficiaries, the Wisewoulds letter contained detailed advice from Mr Axup, in which he noted the particulars of each of the Australian trusts. A comparison of the AFT and the AFT 1984 deeds, with the contents of the Wisewoulds letter, demonstrates that Mr Axup accurately recorded the differences between each trust, including the different descriptions and identities as to the beneficiaries. It is therefore reasonable to infer Mr Axup gave the same attention to detail in respect of what he wrote about the AFT2 and the AFT3, such that I can be satisfied that the beneficiaries of each of those trusts were accurately described in the Wisewoulds letter.
Unlike the AFT, which included all of the deceased’s children as central beneficiaries, in the AFT 1984, only some of the deceased’s children are central beneficiaries. The general class of beneficiaries extends to spouses, children and remoter issues of the central beneficiaries – but it does not refer to, or extend to siblings of the central beneficiaries.
If there had been a wider and/or different definition of beneficiaries contained in the terms of either the AFT2 or the AFT3 trust deeds, such as siblings of the central beneficiaries, I am satisfied that Mr Axup would have expressly noted this in his detailed and considered letter of advice.
I also accept that Henry’s transfer of 72-72A Oakleigh Road from his name into that of the AFT2’s trustee company, is conduct consistent with his contemporaneous belief and understanding, based upon discussions and dealings with his father, that the AFT2 was established for the benefit of him and his (then future) children, and not his siblings.
I reject the trustee parties’ submissions that the term ‘Aun Family Trust’ in each of the Australian trust names supports a broad construction of the term ‘family members’, consistent with each trust being discretionary, and intending to offer maximum flexibility as to which family members can benefit under each such trust. Such a submission is overly simplistic. This is also inconsistent with the terms of the AFT 1984 deed. Despite its name referring to the Aun family, the AFT 1984 deed, names only five children of the deceased and Mr Aun, and does not state that the siblings of the central beneficiaries form part of the general class of beneficiaries.
For those reasons, I am satisfied the general class of beneficiaries under the AFT2 and the AFT3 does not extend to the siblings of Henry and Edward.
As to the existence of an appointor clause, as a starting point, I note that according to the Wisewoulds letter, an appointor clause was contained within the AFT2 and the AFT3.
The Wisewoulds letter advised Mr Aun of his options so as to procure control over the Australian trusts and their assets to him. The letter did not advise that the appointor clauses be removed, but recommended that Mr Aun secure himself as the appointor of the AFT2 and the AFT3.
No documents were produced which evidenced the removal of the appointor clause, or the removal (or resignation) of Henry as appointor under either of these trusts. Julia’s evidence as to how she believes her father would have responded to Henry’s failed business dealings in 1992 and 1993, is purely speculative.
I am not satisfied that Henry’s statement in his first affidavit, that he signed some documents in 1993, which may have been about the appointor clause, is an admission against interest. In this statement, Henry was vague as to what he signed. It was provided in the context of there being uncertainty as to the existence of any of the Australian trusts. Henry has since stated he was not asked to resign as appointor and he produced documents which show he did sign some documents relevant to the AFT and the AFT2 at around that time.
The trustee parties allege there was a variation of the AFT2 and the AFT3 in respect of the appointor. As the ones alleging the variation, the trustee parties carry the burden of proof in respect of this. Considering the whole of the evidence relevant to this matter, I am not satisfied to the requisite standard that there was such a variation. I therefore conclude that, consistent with the Wisewoulds letter, both the AFT2 and the AFT3 trust deeds contain an appointor clause in the same terms as that contained in clause 20 of the AFT.
Julia’s summons
Under the Will, specific gifts are made to numerous named beneficiaries. Relevant to the determination of Julia’s summons, are the following clauses of the Will:
Clause Gift Named beneficiary Clause 2(a) 3 South Avenue Moorabbin Vitim in its capacity as trustee of ‘the Aun Family Trust 1’ (the AFT1). Clause 2(b) Life interest in 20-22 Hunter Street Carnegie Edward, reverting to Vitim in its capacity as trustee of AFT1 upon the death of the last of Edward, any common law wife of his and any children that he may have. Clause 2(c) 24-26 Hunter Street, Carnegie Henry ‘in his capacity as trustee for his family trust’ (Henry’s family trust). Clause 2(d) Life interest in the furniture
and fittings at 20-22 HunterStreet
E & H in its capacity as trustee of the AFT3, reverting to Vitim in its capacity as trustee of AFT1 upon the death of the last of Edward, any common law wife of his and any children that he may have. Clause 2(f) Motor vehicles Vitim in its capacity as trustee of the AFT1. Clause 2(g) Any artworks or works of art
situated at 20-22 HunterStreet
E & H in its capacity as trustee of the AFT3. Clause 2(h) Any artworks or works of art
situated elsewhere than 20-22 Hunter Street
Vitim in its capacity as trustee of the AFT1. Clause 3 Residue Vitim in its capacity as trustee of the AFT1.
There is uncertainty as to the identification of the AFT1 and Henry’s family trust. So as to enable Julia to administer the deceased’s estate, she asks that the following questions be answered by the Court:
Question 1: In relation to clause 2(c) of the Will and the words “to Henry Aun Tun Lye in his capacity as trustee of his family trust”:
(a)As a matter of proper construction of the Will, what trust, if any, is referred to by the words “his family trust”?
(b)If no such trust exists, does the purported gift of 24-26 Hunter Street fail for uncertainty?
Question 2: In relation to the trust identified as The Aun Family Trust 1 in clauses 2(a), 2(b), 2(d), 2(f), 2(h) and 3 of the Will, as a matter of proper construction of the will, is that trust a reference to:
(a)the AFT;
(b)the AFT 1984; or
(c) some other trust?
Legislation and relevant principles
In Re Niall,[24] McMillan J stated that, in construing a will:
… the task of a court is to give effect to the testator’s intention through examination of the words used in the will, having regard to the will as a whole, aided as necessary by any admissible extrinsic evidence. Prima facie, the words of a will must be given their ordinary meaning.
As a general rule, after applying the appropriate rules of construction, where the meaning of a disposition in a will is uncertain, the disposition will fail. If the gift fails, the subject of the gift will pass under any residuary clause in the will. If the residuary clause fails for uncertainty, there will be a partial intestacy in respect of that gift.
For a such a disposition to fail for uncertainty, it must be incapable of any clear meaning. If a court can arrive at the meaning with a reasonable degree of certainty, the disposition will not fail. In essence, for a gift to fail for uncertainty, it must be utterly impossible to put a meaning upon it.[25]
[24][2019] VSC 423 (‘Re Niall’).
[25]Ibid [36]–[38] (citations omitted).
In Craven v Bradley,[26] Derham AsJ helpfully summarised the relevant principles as follows:
[26](2021) 63 VR 567.
(a)The interpretation of a will is analogous to the interpretation of a contract. This brings with it a consideration of the purpose of the will, or the purpose of its particular provisions, as well as the facts known or assumed by the maker at the time that the will was executed, applying common sense and ignoring evidence of subjective intention. No will is made in a vacuum.
(b)The testator’s intentions are not necessarily to be discovered by looking at the literal meaning of the words alone, if this leads to the frustration of their intentions. If, in the light of the surrounding circumstances, the literal interpretation gives rise to a capricious result which the testator can never have intended, then the literal interpretation should be rejected in favour of a sensible interpretation which accords with their intention.
(c)If the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must, prima facie, be given.
(d)It is open to the Court, in construing a will, to insert missing words which are clearly necessary to give effect to the testator’s intention.
(e)If, in the context of the will read as a whole, and of the surrounding circumstances, the ordinary meaning of the words in the will do not make sense, extrinsic evidence is admissible under the ‘armchair principle’. In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will.
(f)A court is not entitled to rewrite a will merely because it suspects the testator did not mean what is said in the will.[27]
[27]Ibid 587 [75] (citations omitted). See also Greenham v Greenham [2020] VSC 749 (‘Greenham’) [13]-[23].
Section 36(1) of the Wills Act provides that if the language in a will renders all, or any part of the will either meaningless, or uncertain or ambiguous on the face of the will or in light of surrounding circumstances, evidence may be admitted to assist in the interpretation of that language. However, if the uncertainty or ambiguity arises in light of the surrounding circumstances, the evidence which may be admitted, does not include evidence as to the testator’s intention.[28]
[28]Wills Act 1997 s 36(2).
In addition, common law principles regarding the admissibility of extrinsic evidence may also apply, but only to the extent they are applicable to the particular facts of a case.[29] The parties agreed that relevant to this proceeding, is the ‘armchair principle.’ This requires the Court to put itself in the position of the testator at the time the will was made. In order to do so, the Court can admit evidence relevant of the surrounding circumstances,[30] including the testator’s general habits and knowledge.[31]
[29]Ibid s 36(3); Re Niall (n 24), [31].
[30]Greenham (n 27), [18].
[31]Re Niall (n 24), [35].
Henry’s family trust
Henry accepted that the reference in clause 2(c) constitutes an ambiguity on the face of the Will. However he submitted that the deceased did not intend for such a gift to fail, but rather intended it to go to the trustee of whichever family trust was Henry’s. It was put that this clause is capable of being construed as if it reads as a gift to Hanaevilla, in its capacity as trustee of Henry’s family trust, that being the AFT2.
On the evidence before me, Henry held 99% of the shares in Hanaevilla.[32] It was put that Henry’s ownership of shares in this trustee company is in contrast with the other family companies, where differing amounts of shares were held between the children. For example, Vitim’s shares were held equally between Henry, Edward and Adrian Boon Oon Han.[33] E & H’s shares were held equally between Henry and Edward.[34] According to the Wisewoulds letter, Henry was the appointer of the AFT2, and on his death, Edward. In addition, Henry had transferred the property at 72-72A Oakleigh Road into Hanaevilla, which he said further supported his contention that the AFT2 was considered to be his trust. Finally, since at least 1985, the address of Hanaevilla was given as 22 Hunter Street, which was a family property where Henry had lived at that time. It was put that such evidence demonstrated that historically, Henry had effective ownership and control of Hanaevilla and the AFT2, such that in lay terms, this was ‘his’ trust.
[32]As at ASIC search of 12 July 2023, annexed to Henry’s first affidavit.
[33]Alice identified Adrian Boon Oon Han, as the son of William.
This was the shareholding of Vitim as at ASIC search of 14 April 2022, annexed to Henry’s first affidavit.
[34]As at ASIC search of 4 April 2022, annexed to Henry’s first affidavit.
Henry asked me to note that despite the Wisewoulds letter raising the prospect of Mr Aun taking control of the AFT2 and its assets away from Henry, Mr Aun had not done so.
In addition, I was asked to observe that the AFT2 listed Henry as the first named beneficiary, whilst the AFT3 listed Edward as the first named beneficiary. Whilst each of these trusts also named the other brother as beneficiary (as well as their parents), this was at a time when neither Henry nor Edward had children. It was said that the fact that these trusts named the other son, and parents, was likely included as a fallback position, in the absence of children being born. Henry submitted that this did not detract from an intention that the AFT2 and the AFT3 be treated as the ‘family trust’ for the first named beneficiary of each.
Henry submitted that when all of these matters were considered together, it was clear that, at the time the deceased made the Will, she considered the AFT2 to be Henry’s family trust, and she intended that trust to be the chosen beneficiary of clause 2(c).
In the alternative to the above submissions, and in the event I was to reject Henry’s submissions that the reference to Henry’s family trust be understood as a reference to the AFT2, Henry contended that it would be feasible for him to now establish a trust which met the description of ‘Henry’s family trust’, and thus take the gift as beneficiary under clause 2(c). Henry submitted that this was permissible as the terms of the Will did not require that such a trust be established during the deceased’s lifetime.
In support of the above submission, Henry referred me to authorities which he said stood for the proposition that, when it is clear that the identity of a person described in a will is to be ascertained at an unspecified future time, the first person to meet the description is presumed to be the intended recipient.[35] It was submitted that this proposition should be held to operate in respect of trusts as well as people, and consequently a trust established by Henry now which met the description of ‘Henry’s family trust’ would be the beneficiary under clause 2(c).
[35]Henry referred to C H Sherrin et al, Williams on Wills (Butterworths UK, 8th ed, 2002) 574, citing Bullock v Bennett (1855) 7 De G M&G 283; Radford v Willis (1871) Ch App 7.
Finally, Henry submitted that if the Court is satisfied that Henry’s family trust is the AFT2, then clause 4 of the Will can be used to complete the description of the gift, by treating the recipient of the legal interest as Hanaevilla, the trustee of that trust and disregard the reference to Henry as trustee.
Julia submitted that the Court should reject the above assertions, and find that the gift in clause 2(c) fails for uncertainty. It was submitted that when the words of the Will are considered as a whole, it is clear that the deceased never intended for Henry, in his personal capacity, to be the beneficiary of clause 2(c). It was also put that there is no trust that Henry is known to be trustee of, and Henry has never been the trustee of the AFT2. Further, Henry’s submissions as to the AFT2 being understood to be his trust and the AFT3 to be Edward’s trust, ignores the deceased referring to the AFT3 in clause 2(g) of the Will.
Julia sought to rely upon numerous documents which she said were admissible as extrinsic evidence to clarify the meaning of clause 2(c), and which supported a finding that the description of Henry’s family trust cannot be used interchangeably with the AFT2. Julia referred to the following documents:
(a) An email from Henry to solicitors, Pointon Partners dated 29 July 2002. This email attached ‘terms’, which Henry stated that he got the deceased’s ‘O.K. on.’ (the 2002 list). The attachment listed 9 assets, to be disposed of under the deceased’s will. The property at 24 -26 Hunter Street was listed as an asset, and was said to be given ‘to [Henry’s] family trust to be established’ (emphasis added). That same document also listed assets to be given to the AFT1 and the AFT3, but no reference was made to the AFT2.
(b) The deceased’s previous will made on 31 July 2002 (the 2002 will). Clause 2(d) of the 2002 will is identical in terms to clause 2(c) of the Will.
(c) A letter from Pointon Partners to Henry, Edward and Julia dated 8 May 2018 which referred to a discussion between Mr Jim Robinson of Pointon Partners and Henry, wherein Henry was noted to have stated that the reference to ‘Henry’s trust’ in clause 2(c) of the Will was a reference to the AFT2, which Henry established in 1994 (the Pointon Partners 2018 letter).
(d) The Wisewoulds letter which noted that the beneficiaries of the AFT2 included ‘Henry, Edward, eligible trust, eligible company and parents and family members,’ with advice that at any time, the assets and income of the AFT2 could be transferred to the AFT, if so desired.
Julia submitted that I should find the deceased did not intend to gift 24-26 Hunter Street to the AFT2, because it would have been easy for her to identify that trust in that way, but she did not. It was submitted that the correct interpretation of clause 2(c) was that the deceased intended to make it as a gift to another trust, which for unknown reasons was never established. It was submitted that the reference to Henry’s family trust being an intended beneficiary in the 2002 list resulted in such a bequest being made under the 2002 will, and the same language is used in the equivalent clause of the Will. Julia said there is no evidence that a separate trust was established, or the situation changed between 2002 and 2005. It was put that on these two occasions the deceased had a chance to correct the mistake if there was one, yet she did not do so.[36] Further, it was emphasised that Henry was involved in the giving of instructions for the deceased’s wills and despite having the opportunity to clarify the reference to Henry’s family trust, had not done so, and has not explained why.
[36]Julia contended that it had been open to Henry to apply for rectification of the Will under s 31 of the Wills Act, but he had not done so. Henry stated that he had not sought such rectification, as he did not contend there had been an error in the Will.
Julia also urged me to reject Henry’s alternative submission that he could now establish a family trust to meet the definition of the beneficiary named in clause 2(c). It was put there was no authority which supported Henry’s ability to do so after the deceased’s death, and there was an untenable level of uncertainty surrounding such a proposition.
Analysis and answer
The parties agreed that on the face of the Will, the intended beneficiary of 24-26 Hunter Street, as described in clause 2(c), is uncertain. Therefore it is permissible for me to have regard to the surrounding circumstances, and to consider extrinsic evidence, so as to place myself in the armchair of the deceased, and determine her intention at the time she made the Will. I have expressly had regard to the following:
(a) It is agreed between the parties that the Australian trusts were established by the deceased and her husband. The structure of each of the Australian trusts offered flexibility in who might be the beneficiaries of each, with the capacity to amend this at any time.
(b) The AFT2 was settled in 1983, well prior to the Will. I am satisfied that the deceased knew of this trust at the time she made the Will.
(c) Whilst Henry was the main beneficiary of the AFT2, he was not its sole beneficiary. His parents and brother Edward (and spouses and remoter issue) were also beneficiaries.
(d) In the Will, the deceased made two gifts to E & H in its capacity as trustee of the AFT3. In making these bequests, the deceased did not refer to this as Edward’s family trust. I consider it improbable that the deceased would correctly name E & H as trustee of the AFT3, whilst incorrectly referring to Henry as trustee of his family trust, instead of Hanaevilla as trustee of the AFT2.
(e) The 2002 list, is a contemporaneous document, which according to Henry’s email to the deceased’s solicitors, set out the gifts which the deceased had agreed to bequeath, and to whom. Henry submitted that as the precise words from the 2002 list did not appear on the face of the 2002 will or the Will, it would be erroneous to infer some intention from the words in the 2002 list, to the deceased. However this submission overlooks the importance of this list – not as evidence of the deceased’s intentions, but rather as contemporaneous evidence of the deceased’s state of knowledge at the time she signed her 2002 will. Henry’s message to the deceased’s lawyers, was that the deceased had given the ‘O.K.’ to the 2002 list. It follows therefore that the deceased had knowledge of the contents of that list, including its reference to Henry’s family trust, which was to be established. No change was made to the description of this intended beneficiary in the Will, and thus the deceased’s knowledge and intention as to Henry’s family trust in 2002, can be taken to have persisted as at the time she made the Will in 2005.
(f) Henry acted as the conduit between the deceased and Pointon Partners in the making of both of the deceased’s wills. In his affidavits, Henry has not offered an explanation as to why he did not assist the deceased by ensuring that, if she did intend 24-26 Hunter Street to go to the AFT2, that she identified it with sufficient clarity, such as she did the gifts in clauses 2(d) and (g).
(g) Save for a statement by Henry that the deceased and Mr Aun established the AFT2 for Henry, there is no evidence before me that the deceased, either in conversation or in writing, referred to the AFT2 as Henry’s family trust.
(h) Whilst at [55], I accepted that Henry’s transfer of 72-72A Oakleigh Road to Hanaevilla in 1986 was an indication that he considered the AFT2 to be for the benefit of him and his children, this is not evidence of the deceased’s belief.
(i) Henry living at 22 Hunter Street in 1985, at the same time that this was the registered address of Hanaevilla, is insufficient to persuade me that the deceased intended Henry’s family trust to refer to the AFT2. The Will was made 20 years after Henry was known to have lived there. Since April 1993, the address of Hanaevilla had changed from 22 Hunter Street. Further, since approximately 1994 when the Rigby Avenue property was sold, 22 Hunter Street was the ‘family home’. There is no evidence as to when Henry moved out of that home, but it is clear on the evidence it was not a property that was exclusively related to him.
Taking all of those matters into account, from the position of the deceased’s armchair at the time she made the Will, there remains irreconcilable uncertainty as to which trust the deceased was referring to in clause 2(c).
I reject Henry’s submission that it would be permissible for him to now establish a family trust, for which he would be trustee, so as to satisfy the description of the named beneficiary in clause 2(c).
Section 34 of the Wills Act provides that:
(1)A will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator.
(2)Subsection (1) does not apply if a contrary intention appears (whether in the will or elsewhere).
As was acknowledged by counsel, there were no prior decisions where a post death creation of a trust had been permitted to overcome uncertainty as to identification of a beneficiary under a will. The two cases which I were referred to by Henry, provided no assistance to what was being sought here.
In Bullock v Bennett,[37] the income of a bequest of £1,200 was directed to be paid to the testator’s daughter (a widow) ‘for her life or until her marriage’. After the date of the will and prior to the testator's death, the daughter remarried. On appeal, the Court overturned the decision of the Vice-Chancellor at first instance, holding that by remarrying, the daughter had become disqualified from taking under the bequest, and that the testator could not be taken to be referring to events which would occur after his death.
[37]Bullock v Bennett (1855) 7 De G M&G 283.
In Radford v Willis,[38] the Court was concerned with construction of a term in a will, which included a bequest to the testator’s daughters in equal shares during their lifetimes, with a remainder gift to their husbands on death if they were to marry. In the complicated fact scenario of that case, the will contained a proviso that, if either of the daughters were to die unmarried, her share would go to the surviving daughter for life and then to the husband of the surviving daughter on her death. Both daughters married, one dying in the lifetime of her husband. The husband of the other daughter died before her, having named her as his sole beneficiary. On appeal, the Court overturned the decision of the Vice-Chancellor at first instance, holding that the surviving daughter was entitled to a moiety of the estate, on the basis that the estate passed indefeasibly to the first person answering the character of husband.
[38]Radford v Willis (1871) Ch App 7.
I do not consider Bullock or Radford to be authority for the proposition that a gift can be perfected by bringing a trust into existence which was not in existence at the time a testator passed away.
It would be incongruous if Henry could establish a trust now and effectively retrofit it so that this new trust successfully met the description of the named beneficiary under clause 2(c). Such a trust did not exist at the time of the deceased’s death. It cannot be established now to circumvent my determination that the intended beneficiary of clause 2(c) is uncertain.
In closing submissions, Henry referred me to a number of cases, where a person, corporation or society had been incorrectly described in a will.[39] It was said that in such cases, the Court used every endeavour to ascertain who the intended beneficiary was. The trustee parties also made brief submissions in respect of how, under the armchair principle, evidence could be admitted as to a testator’s habit in calling a person by a particular name or nickname so as to overcome an uncertain or incorrectly described beneficiary.[40]
[39]I was provided with an extract from Stephen Cretney and Gerald Dworkin, Theobald on Wills (Stevens & Sons, 13th ed, 1971) 278-279, which cited the following cases: Masters v Masters (1717) 1 P.W. 421; Beaumont v Fell (1723) 2 P.W. 141; Dowset v Sweet (1753) Amb. 175; Pitcairne v Brase (1689) Finch 403; Ryall v Hannam (1847) 10 B. 536; Lee v Pain (1845) 4 Ha. 201; In bonis Twohill (1880) 3 L.R.Ir. 21; Re Waller (1899) 80 L.T. 701; Re Hooper (1902) 51 W.R. 153; Douglas v Fellows (1853) Kay 114; Mostyn v Mostyn (1854) 5 H.L.C. 155; Baxter v Morgan (1881) 7 L.R.Ir. 501; Att Gen. v Rye Corporation (1817) 7 Taunt. 746; Bradshaw v Thomson (1843) 2 Y. & C.C. 295; Wilson v Squire (1842) 2 Y. & C.C. 654; Makeown v Ardagh (1876) I.R. 10 Eq. 445.
[40]See G E Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2021) 245 [8.39], citing Charter v Charter (1874) L.R. 7 H.L. 364.
As is obvious, each case turns on the terms of the will, and if appropriate, extrinsic evidence as to the said testator’s knowledge and habits at the time the will was made. Those cases are examples of where uncertainty as to a named beneficiary was able to be overcome through the admission of such evidence. However, as already stated, even with extrinsic evidence, I am not persuaded clause 2(c) is capable of being construed in a way that can overcome the uncertainty arising from the reference to Henry’s family trust.
In so finding clause 2(c) is uncertain, I did not have regard to the Wisewoulds letter. I accept Henry’s submission that this was addressed to Mr Aun, and there is no evidence before me that the deceased received, or was made aware of the advice contained in this letter.
I also did not have regard to the Pointon Partners 2018 letter. Save that it contains incorrect information from Henry (that he established the AFT2 in 1994), this letter does not shed light on the deceased’s knowledge or habits at the time she made the Will.
As I am not satisfied that the deceased intended clause 2(c) to go to Hanaevilla as trustee of the AFT2, and as there is no known trust which fits the description of Henry’s family trust at the time of the deceased’s death, clause 2(c) must fail for uncertainty.
There is a residuary clause in the Will. As clause 2(c) is uncertain, I direct the gift under it, namely 24-26 Hunter Street, to form part of the deceased’s residuary estate.
The AFT1
Submissions, analysis and answer
The parties agreed that there were only 4 Australian trusts. None are identified as AFT1. There is however the AFT2, the AFT3 and the AFT 1984. The first trust settled in time is the AFT, it being settled on 14 January 1983.
Julia submitted that it makes sense, logically and sequentially and to avoid confusion, for the references to the AFT1 in the Will to be read as referring to the AFT. Henry, Vitim and the trustee parties did not make any submissions to the contrary.
I am persuaded by Julia’s submissions and direct the trust identified as the AFT1 in clauses 2(a), 2(b), 2(d), 2(f), 2(h) and 3 of the Will are to be read as referring to the AFT.
Proposed orders
I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.
SCHEDULE OF PARTIES
S ECI 2022 01202
BETWEEN:
| HENRY TUN LYE AUN | Plaintiff |
| -v- | |
| VITIM PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE AUN FAMILY TRUST | First Defendant |
| -and- | |
| VITIM PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE AUN FAMILY TRUST-1984 | Second Defendant |
| -and- | |
| HANAEVILLA PTY. LTD. IN ITS CAPACITY AS TRUSTEE OF THE AUN FAMILY TRUST NUMBER 2 | Third Defendant |
| -and- | |
| E. & H. AUN BROTHERS PTY. LTD. IN ITS CAPACITY AS TRUSTEE OF THE AUN FAMILY TRUST NUMBER 3 | Fourth Defendant |
| -and- | |
| JULIA GAIK BUI MA IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE CHAN WAI KING | Fifth Defendant |
0
4
0