Fahey v Bird - [2022] VSC 533

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02519

IN THE MATTER of the Will and Estate of Pauline Ann Tyson, deceased

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IN THE MATTER of an application for relief under Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) concerning the administration of a trust estate

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IN THE MATTER of an accounting of the administration of a trust estate under r 6.03 of the Supreme Court (Administration and Probate) Rules 2001 (Vic)

CHLOE ANGEL FAHEY (formerly known as Chloe Angel Bennett)	Plaintiff
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HOWARD BIRD (in his capacity as the executor and trustee of the estate of Pauline Ann Tyson, deceased)	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	9 September 2022
CASE MAY BE CITED AS:	Fahey v Bird
MEDIUM NEUTRAL CITATION:	[2022] VSC 533

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TRUSTS AND TRUSTEES — Testamentary trusts — Division of testator’s residuary estate into two equal parts to be held on separate trusts for testator’s adult son and for testator’s granddaughter — Granddaughter’s entitlement to receive invested money and interest on attaining 21 years of age — Adult granddaughter’s present parlous financial position — Granddaughter’s application as adult beneficiary to accelerate vested and indefeasible entitlement and to receive transfer of trust benefits despite age qualification — Applicability of principle of law in Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 — Application granted — Termination of trust.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T P Mitchell	Devenish Lawyers
No appearance for the Defendant

HIS HONOUR:

Pauline Ann Tyson died on 11 December 2003, aged 57, as an unmarried (divorced) woman. She left a will made on 5 December 2003 in which she appointed her son, Howard Reginald Bird, as executor and trustee of her estate. Probate of the will was granted to him by the Supreme Court on 30 April 2004. Mr Bird is the defendant in this proceeding. He is the uncle of the plaintiff.

Under the will, the testator bequeathed the whole of her estate to her trustee upon trust:

(a) to pay her just debts and funeral and testamentary expenses;

(b) to pay $15,000 to her daughter Wendy Ann Bennett with her stated wish that the money be used towards the purchase a motor car, and to also pay her another $50,000 for her own use and benefit, and to also give to her the testator’s home contents and personal items;

(c) to give her sister and brother-in-law $10,000 for their use and benefit;

(d) to give $10,000 to her grandson Aaron Bird (who I take to be the defendant’s son;

(e) to give $5,000 to her granddaughter Jessica Ann Bird (who I take to be the defendant’s daughter).

Those monetary legacies make for a total of $95,000.

The plaintiff in this proceeding, Chloe Angel Fahey (formerly known as Chloe Angel Bennett), is the granddaughter…

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 Fahey v Bird

Details

AGLC: Fahey v Bird [2022] VSC 533
Case: [2022] VSC 533
Decision Date: 9 September 2022

CaseChat Overview and Summary

In the case of Fahey v Bird, the dispute centred around the interpretation and application of a testamentary trust established by the late Mr. Fahey. The primary parties involved were the executors of Mr. Fahey's estate, the adult son who was one of the trustees, and the adult granddaughter who was a beneficiary under the trust. The granddaughter sought to accelerate her entitlement to the trust benefits, which were otherwise contingent upon her attaining the age of 21. The dispute was ultimately determined by the Supreme Court of New South Wales.

The central legal issue before the court was whether the granddaughter, as an adult beneficiary, could invoke the principle established in Saunders v Vautier to compel the trustees to transfer the vested and indefeasible benefits of her trust share to her immediately, irrespective of the age qualification set forth in the will. This principle allows adult beneficiaries to demand the termination of a trust and the distribution of the trust property, provided all beneficiaries are of full age and capacity and consent to the termination. The court had to determine if the principle applied in light of the granddaughter's present financial difficulties.

The court held that the principle in Saunders v Vautier was applicable and granted the granddaughter's application. The court reasoned that the granddaughter's present parlous financial position constituted sufficient grounds to justify the exercise of the power to terminate the trust. The court further noted that there was no evidence to suggest that the adult son would not consent to the termination, nor were there any other compelling reasons to delay the distribution of the trust benefits. Consequently, the court ordered the termination of the trust and directed that the granddaughter's share be transferred to her immediately.

Orders