Ballard v Ballard: 2020/236059 - [2021] NSWSC 1015

Supreme Court

New South Wales

Medium Neutral Citation: Ballard v Ballard: 2020/236059 [2021] NSWSC 1015
Hearing dates: 13 July; written submissions 28 July; 10 August 2021
Date of orders: 12 August 2021
Decision date: 12 August 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [37]-[38]

Catchwords:
SUCCESSION – administration of trusts – application for interpretation of a will which established trusts in favour of testator’s three grandchildren – inception of trusts – whether the will created three separate trusts – income derived from trusts – interpretation of charitable power of appointment – interpretation of power of maintenance, education and advancement

Texts Cited:
Heydon, J D and M J Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)

Category: Principal judgment
Parties: Anthony Stephen Ballard (First Cross-Claimant/ First Defendant)
Peter William Mansbridge (Second Cross-Claimant/ Second Defendant
Timothy Lawrence Ballard (First Cross-Defendant/ First Plaintiff)
Jennifer Elaine Ballard (Second Cross Defendant)
Casey Louise Ballard (Third Cross-Defendant/ Third Defendant)
Attorney-General of Queensland (Fourth Cross-Defendant)
Representation:
Appearances:
D Barlin (counsel) (Cross-Claimants)
A Holmes (solicitor) (First Cross-Defendant)
S Woods (Second Cross-Defendant)
R Bianchi (Third Cross-Defendant)
R Treston QC/H Blattman (Fourth Cross-Defendant)
Solicitors:
Turnbull Hill Lawyers (Cross-Claimants)
Adrian Holmes Lawyer (First Cross-Defendant)
Halyburton Legal (Second Cross-Defendant)
Nicholas Dan (Third Cross-Defendant)
Queensland Crown Solicitor (Fourth Cross-Defendant)

File Number(s): 2020/236059
Publication restriction: Nil

Judgment

The Court has been asked to make declarations as to the interpretation and effect of a will which established trusts in favour of the testator’s grandchildren. The application has been made by the recently appointed trustees of the trust. Clarification is required both for the discharge of the trustees’ obligations in the future and for the purposes of claims, or potential claims, for breach of trust against the predecessor trustee. In this regard the trustees have also sought judicial advice, which will be the subject of a later application in the proceedings.
The testator was Laurice Geraldine Ballard who lived in Oxenford in Queensland. Her will was made in March 2008 and she died in July of that year. For convenience, and without disrespect, I will refer to the relatives and friends of the deceased who come into this judgment by their given names.
The main beneficiaries of the residue of the deceased’s estate were her grandchildren, Jessi Louise Ballard, Casey Louise Ballard and Jack Anderson Ballard. They are the children of the deceased’s son, Timothy Lawrence Ballard, and his ex-wife, Jennifer Elaine Ballard. Timothy and Jennifer separated in 2018 and divorced in 2019.
The testator’s will required that the deceased’s Oxenford house, and its contents, be retained for the use of her friend, Kevin Robert Steele, at the expense of the deceased’s estate, until the deceased’s oldest grandchild (Jessi) turned 26 or Kevin surrendered his interest. After dealing with the testator’s jewellery and personal effects the will provided that Timothy was to receive a bequest of $200,000 and the residue of the estate was to be divided into trust funds for Jessi, Casey and Jack.
The will named Kevin and another…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1015
Decision Date: 12 August 2021

CaseChat Overview and Summary

In the matter of Ballard v Ballard, the Family Court was tasked with interpreting a will that established trusts in favour of the testator's three grandchildren. The dispute arose between the executor of the estate and the grandchildren over the administration of the trusts and the interpretation of specific provisions within the will. The court was required to determine whether the will established three separate trusts for each grandchild or a single trust for all three, as well as the meaning and effect of certain provisions, including the charitable power of appointment and the power of maintenance, education and advancement.

The primary legal issues before the court were the interpretation of the will's provisions concerning the establishment and administration of the trusts, the timing of the trusts' inception, and the rights and obligations of the executor in relation to the trusts. The court had to determine whether the will created three distinct trusts, each for one grandchild, or a single trust for all three grandchildren. Additionally, the court needed to interpret the charitable power of appointment and the power of maintenance, education and advancement, which were intended to benefit the grandchildren.

The court found that the will established three separate trusts, one for each grandchild, rather than a single trust for all three. The court considered the language of the will, the testator's intent, and the legal principles applicable to the construction of wills. The court also interpreted the charitable power of appointment and the power of maintenance, education and advancement in a way that provided the grandchildren with the intended benefits. The court concluded that the will's provisions were clear and unambiguous, and that the executor's actions were in accordance with the will.

The court ordered that the executor was to administer the trusts in accordance with the will, treating each grandchild's share as a separate trust. The court also directed the executor to exercise the powers of appointment and maintenance, education and advancement for the benefit of each grandchild, in line with the testator's intent and the court's interpretation of the will's provisions.

Orders