Gibb-Maitland v Perpetual Executors Trustees and Agency Company (WA) Limited and Flintoff

The case of Gibb-Maitland v Perpetual Executors Trustees and Agency Company (WA) Limited and Flintoff concerned the construction of the will of Thomas Craig Boyd. The testator bequeathed annuities to his widow, three sisters, and two daughters, Katherine and Jean. The will stipulated that after the death of his wife and during the lifetime of his sisters, any surplus income after paying annuities was to be divided equally between Katherine and Jean. Upon the death of his wife and the last surviving sister, the testator directed his trustee to hold both the capital and income of his residuary estate for Katherine and Jean in equal shares as tenants in common. The will also included a substitutionary clause for the issue of a daughter dying before the testator or the period of distribution. The testator's widow died, followed by Jean, who died without issue, leaving Katherine and the testator's sisters surviving. The appeal and cross-appeal were brought before the High Court of Australia following a decision by the Supreme Court of Western Australia.

The legal issues before the High Court were twofold. Firstly, whether the interests of Katherine and Jean in the capital and income of the residuary estate vested at the date of the testator's death, or whether they were contingent upon surviving the period of distribution (the death of the testator's wife and the last surviving sister). This question arose because Jean had died before the period of distribution, and the appellant, Katherine, argued that Jean's share had not vested and therefore devolved as on an intestacy. Secondly, the court had to determine the entitlement to Jean's share of the surplus income generated between the death of the testator's widow and Jean's own death. The Supreme Court had held that Jean's share of the corpus vested at the testator's death, but that her share of the surplus income during this intermediate period devolved as on an intestacy.

The High Court, in allowing the appeal and dismissing the cross-appeal, held that the interests of Katherine and Jean in the capital and income of the residuary estate vested at the date of the testator's death. The Court reasoned that the postponement of the distribution of the residuary estate was not due to any personal condition attached to the beneficiaries, but rather to allow for the prior payment of annuities. Applying principles from cases such as *Browne v. Moody*, the Court found that the gift was to a *dies certus* (a certain future event, namely the death of the widow and sisters) and that the postponement of possession did not prevent vesting. Consequently, upon Jean's death, her vested share devolved upon her personal representative. Regarding the surplus income, the Court held that there was no intestacy. It reasoned that the gift of surplus income to the daughters was not limited to their respective lives but was for the duration of the period specified in the will. Therefore, Jean's entitlement to her share of the surplus income also vested at the testator's death and devolved upon her personal representative.

The High Court ordered that the appeal be allowed and the cross-appeal be dismissed. The declarations made by the Supreme Court were varied to reflect the finding that Jean Falconer Flintoff's personal representative took her vested interest in both the capital and the surplus income of the residuary estate.