Fraser v Fraser

[2001] QSC 490

SUPREME COURT OF QUEENSLAND

CITATION:

Fraser v Fraser and Anor [2001] QSC 490

PARTIES:

BRUCE WILLIAM FRASER
(applicant)
v
ELSIE JEAN LYNETTE FRASER and
CAMERON ARNOLD FRASER
(respondents)

FILE NO/S:

S 8421/01

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

19 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2001

JUDGE:

Philippides J

ORDER:

1. It is declared that, upon its proper construction, the condition stated in cl 3(b)(i) of the Will of John William Joseph Fraser deceased dated 1^st June 1990, that Cameron Arnold Fraser transfer to Bruce William Fraser by way of gift his one-half share and interest in the property known as “Saltern Creek”, is not void for uncertainty.
2.  It is ordered that each party’s costs of and incidental to the application be assessed on an indemnity basis and paid from the estate of John William Joseph Fraser, deceased.

CATCHWORDS:

WILLS – PROBATE AND LETTERS OF ADMINISTRATION - construction and effect of testamentary disposition – uncertainty – condition subsequent – need for certainty in operation – condition that beneficiary transfer his interest in a specified property – whether condition uncertain as to time – whether reasonable period for performance can be implied – whether condition uncertain in operation because not capable of being fulfilled solely by the beneficiary

Clavering v Ellison (1859) 7 HL Cas 707
Davies v Lowndes (1835) 1 Bing NC 597
Huckstep v Mathews (1685) 1 Vern 362
Miller v Miller (1995) 16 ACSR 73
Morley v Rennoldson (1843) 2 Ha 570
Re Bradley [1994] 2 Qd R 233
Re Burton’s Settlements [1955] 1 Ch 82
Re Corr Unreported, S Ct of Qld,  No 5712 of 1996, 15.8.96
Re Denley’s Trust Deed [1969] 1 Ch 373
Re Viscount Exmouth, Viscount Exmouth v Praed (1883) 23 Ch D 158
Watson v Watson [1999] NSWSC 325

COUNSEL:

G Gibson QC for applicant
D Mullins for respondents

SOLICITORS:

Hunt & Hunt for applicant
McCullough Robertson for respondents

PHILIPPIDES J: 

1. The issues raised by this application concern the validity of cl 3(b)(i) of the Will of John William Joseph Fraser, deceased, dated 1 June 1990.

1. The applicant, Bruce Fraser, is the eldest of two sons, the only children of the testator, John Fraser.  The respondents are the applicant’s mother, Mrs Fraser and his brother, Cameron Fraser, each of whom (together with the applicant) are the executors and trustees appointed by the Will. 

1. The testator was, and the applicant and his brother are, graziers at Barcaldine.  Members of the family hold, and at all material times have held, interests in three grazing homestead leases at Barcaldine, namely “Bendigo”, “Culburnie” and “Saltern Creek”.  In 1989, the lease of “Saltern Creek” was given to the sons, Bruce and Cameron Fraser, in equal shares.  It is fenced into two approximately equal areas, each of which is operated by Bruce Fraser and Cameron Fraser respectively. The testator was the lessee of “Culburnie”, on which property he and Mrs Fraser resided and on which Mrs Fraser continues to…