Fox v Waller

In the case of Fox v Waller, the applicants, who are the executors of the late Mr Waller's estate, sought a declaration as to whether an express power of appropriation conferred by the will is subject to, and limited by, the Trusts Act 1973 (Qld). The respondents, who are the beneficiaries of the will, sought a different outcome in relation to the administration of the estate. The primary issue for the court to decide was whether the express power of appropriation in the will in respect of the subdivided lots gifted is subject to, and limited by, the provisions of ss 31(1)(l)(i) and (ii) of the Trusts Act 1973 (Qld). The court considered the proper approach to statutory construction, which requires the court’s consideration to focus on the text of the relevant provisions, in context. The court determined that the proper construction of the Trusts Act 1973 (Qld) is that the express power of appropriation under clause 19.1.15 of the last Will and Testament of John Lewis Waller (deceased) executed 6 November 2013, in respect of the assets in the late Mr Waller’s estate being the subdivided lots (which were formerly the Beckwith Street property) gifted under clause 10 of the Will, is not subject to nor limited by the provisions of ss 31(1)(l)(i) and (ii) of the Trusts Act 1973 (Qld).

The court ordered that the express power of appropriation under clause 19.1.15 of the last Will and Testament of John Lewis Waller (deceased) executed 6 November 2013, in respect of the assets in the late Mr Waller’s estate being the subdivided lots (which were formerly the Beckwith Street property) gifted under clause 10 of the Will, is not subject to nor limited by the provisions of ss 31(1)(l)(i) and (ii) of the Trusts Act 1973 (Qld). The court also ordered that the costs of all parties to the application are to be assessed on the indemnity basis and be paid out of the estate of the late Mr Waller.