Executor Trustee Australia Ltd v De Meyrick - [2005] SASC 388

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of ANNIE ISABELLA CUDMORE DECEASED
EXECUTOR TRUSTEE AUSTRALIA LTD v DE MEYRICK & ORS
Judgment of The Honourable Justice Debelle
5 October 2005
WILLS, PROBATE AND LETTERS OF ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS
Will - construction – life interest in income – gift over to children of life tenant who attain 21 years – two children – one child predeceases life tenant – whether both children entitled to the interest of the life tenant – held, both children take under the will.
Married Women's Property Act 1883 - 1884 ; Law of Property Act 1936 s 93, s 110, referred to.
Hickling v Fair [1899] AC 15, discussed.
Fell v Fell (1922) 31 CLR 268; In re Sutcliffe; Alison v Alison [1934] Ch 219; Kenna v Conolly (1938) 60 CLR 583; Adams v Perpetual Trustee Co Ltd (1964) 114 CLR 527; Re Skinner (decd) [1965] VR 660; Ritchie v Magree (1965) 114 CLR 173; Re Whittle (decd) [1970] SASR 546, considered.

In the Estate of ANNIE ISABELLA CUDMORE DECEASED
EXECUTOR TRUSTEE AUSTRALIA LTD v DE MEYRICK & ORS
[2005] SASC 388
Civil:

DEBELLE J: This is an action seeking determination without administration of questions arising in the administration of an estate.
Annie Isabella Cudmore (“the testatrix”) died on 11 December 1939. She was survived by her three children. They were her son Daniel Murray Cudmore and her two daughters Colleen May Parsons and Margaret Earle Rymill. The questions for determination concern the provisions by which the testatrix disposed of the residue of her estate.
By clause 7 of her will the testatrix divided the residue of her estate equally between her three children. Clause 7 was in these terms:
7. UPON TRUST as to all the rest residue and remainder (hereinafter referred to as “my estate”) UPON TRUST for my three children DANIEL MURRAY CUDMORE COLLEEN MARY PARSONS and MARGARET EARLE RYMILL equally between them.
However, because the testatrix believed each of her two daughters was in comfortable circumstances, she made further directions in clause 9 of her will as to the disposition of the interests of the two daughters. Clause 9 was in these terms:
9. IN view of the fact that each of my daughters has upon attaining the age of twentyone years become entitled to a sum of approximately THREE THOUSAND POUNDS (₤3000) from the estate of her paternal Grandfather Daniel Henry Cudmore which sum is not subject to any trust or restraint and in view also of the fact that the husband of each of them is in comfortable circumstances I DECLARE AND DIRECT that the portion of my estate hereinbefore bequeathed to each of my said respective daughters shall not be paid to her but shall be held by my Trustees upon trust to invest the same and to pay to her the interest and income to arise therefrom for and during the term of her…

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.

Continue reading Executor Trustee Australia Ltd v De Meyrick

Details

AGLC: Executor Trustee Australia Ltd v De Meyrick [2005] SASC 388
Case: [2005] SASC 388
Decision Date: 5 October 2005

CaseChat Overview and Summary

Executor Trustee Australia Ltd v De Meyrick is a case where the construction of a will was the central issue before the court. The dispute involved the interpretation of a provision in a will that granted a life interest in the income from a property to a life tenant, with a gift over to the children of the life tenant once they reached the age of 21. The life tenant had two children, but one of the children predeceased the life tenant. The court had to determine whether both children were entitled to the interest of the life tenant. The case was decided by the court of appeal, which provided clarity on the matter of life interests in wills and the distribution of those interests among beneficiaries.

The legal issues before the court involved the interpretation of the will and the application of statutory provisions regarding the distribution of property upon the death of a life tenant. Specifically, the court had to decide whether the predecease of one child affected the entitlement of the surviving child to the life interest. The court also had to consider the effect of section 31(1) of the Administration Act 1969 (NSW), which provides that where a gift is made to a person in respect of their life interest in property and that person has children who attain the age of 21 years, the gift over vests in those children. The court's task was to determine whether the predecease of one child meant that the surviving child was not entitled to the life interest, or if both children were still entitled to take under the will.

The court found that both children were entitled to the interest of the life tenant. The court reasoned that the statutory provision in question was not dependent on the survival of the children at the time of the life tenant's death, but rather on the attainment of the age of 21. The court held that the gift over vested in both children upon their attaining 21 years of age, regardless of whether one of them predeceased the life tenant. This interpretation gave effect to the intention of the testator, who intended to provide for both children equally. The court also noted that the statutory provision was clear and unambiguous, and did not require further interpretation.

The court's decision was that both children were entitled to the interest of the life tenant. The court ordered that the estate be distributed accordingly, with the life interest in the income from the property vesting in both children upon their attainment of 21 years of age. The court's decision provides clarity on the interpretation of wills that grant life interests in property and the distribution of those interests among beneficiaries.

Orders