Bassett v Bassett - [2003] NSWSC 691

Reported Decision:
58 NSWLR 258

Supreme Court

CITATION: Bassett v Bassett [2003] NSWSC 691

HEARING DATE(S): 23 and 30 June 2003

JUDGMENT DATE:
30 July 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Judicial Advice given as in paragraph 22.

CATCHWORDS: WILLS - construction - gift by testator of realty and personalty to A 'during his lifetime' and 'after his death' to the children of A - A currently has two children - whether a surrender by A of his interests would accelerate the vested interests of his children - whether acceleration of the vested interests would close the class so that children born after surrender cannot take

CASES CITED: Andrews v Partington [1791] 3 Bro CC 409; 29 ER 610
Church Property Trustees Diocese of Newcastle v
Ebbeck (1960) 104 CLR 394
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Collins v The Equity Trustees Executors and Agency Company Limited [1997] 2 VR 166
Crane v Crane (1949) 80 CLR 327
In Re Bleckly deceased [1951] Ch 740
In Re Davies; Davies v Mackintosh [1957] 1 WLR 922
In Re Flower's Settled Trust [1957] 1 WLR 401
In Re Harker's Wills Trusts [1969] 1 WLR 1124
In Re Kebty-Fletcher's Wills Trusts [1969] 1 Ch 339
In Re Taylor [1957] 1 WLR 1043
Lainson v Lainson (1854) DeGM&G 754; 43 ER 1063
Re Chartres [1927] 1 Ch 466
Re Crother's Trusts [1915] 1 IR 53
Re Hartigan [1989] 2 QdR 401
Re Johnson (1893) 68 LT 20
Re Syme deceased [1980] VR 109
Tompkins v Simmons (1930) 44 CLR 546
Wyndham v Darby [1896] NSWR (Equity) 272
Bailey: Class Closing Accumulation and Acceleration [1958] CLJ 39
Hawker and Ryder on the Construction of Wills p113
Pritchard: Acceleration and Contingent Remainders [1973] CLJ 246
Theobald on Wills 15th Ed pp 389 and 393

PARTIES :
Ernest John Bassett (First Plaintiff)
Therese Louise Zell (Second Plaintiff)
Bernadette Michelle Crombie (Third Plaintiff)
Damien Bassett (First Defendant)
Benjamin Bassett (Second Defendant)
Patricia Madeline Bassett (Third Defendant)

FILE NUMBER(S): SC 4628 of 2002

COUNSEL: Mr L Karp (Plaintiffs)
No appearance (First and Second Defendants)
Mr B Townsend (Third Defendant)

SOLICITORS: Baker Deane & Nutt (Plaintiffs)
Jack C Herrald (First and Second Defendants)
Frank Wilson (Third Defendant)

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 30 JULY 2003.

4628/02 ERNEST JOHN BASSETT & ORS V DAMIEN BASSETT & ANOR

Clearly the intellectual climate is unfavourable to the high technique of the common law to say nothing of strict logic. It is certainly not a time when many minds can be found to respond with lively animation to an encounter with a tolled entry upon a descent cast, or with a demurrer to a plea giving express colour on the ground of that, lacking a protestando, the plea confesses but does not avoid a count in trespass; or even with the acceleration of legal contingent remainder by the destruction of a prior contingent…

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: [2003] NSWSC 691
Decision Date: 30 July 2003

CaseChat Overview and Summary

The case of Bassett v Bassett involved a dispute concerning the interpretation of a will. The testator, Mr Bassett, left property to his son, A, during his lifetime, with a remainder to A's children. If A did not have any children at the time of his death, the property was to be distributed to his brother and sister. A, who currently had two children, sought to surrender his interests in the property. The issue was whether such a surrender would accelerate the vested interests of his children and, if so, whether it would close the class, preventing any children born after the surrender from taking any interest. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were twofold: first, whether the surrender by A of his interests would accelerate the vested interests of his children; and second, if the interests were accelerated, whether this would close the class, preventing any children born after the surrender from taking any interest. The court had to interpret the will and determine the effect of the surrender on the interests of A's children and any potential future children.

The court found that the surrender by A of his interests would indeed accelerate the vested interests of his children. However, it held that this acceleration would not close the class. The court reasoned that the phrase "children of A" was not limited to the children existing at the time of A's death, but rather included any children born during A's lifetime, including those born after the surrender. The court considered the intention of the testator and held that it was to provide for A's children, regardless of when they were born, as long as they were his legal children at the time of his death. The court's decision was based on the principle that the testator's intention should be given effect to as far as possible.

The final orders of the court were that A's surrender would accelerate the vested interests of his children, but any children born after the surrender would still be entitled to take an interest in the property. The court's decision provided clarity on the interpretation of the will and the effect of the surrender on the interests of A's children and any potential future children.

Orders