JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HAMERSLEY & ORS -v- BRIAN ROSSITER NEWTON (as Executor of the estate of ROBERT MALCOLM HAMERSLEY (DEC)) & ORS [2005] WASC 221
CORAM: EM HEENAN J
HEARD: 19 NOVEMBER 2004
DELIVERED : 7 OCTOBER 2005
FILE NO/S: CIV 2024 of 2004
MATTER :The estate of ROBERT MALCOLM HAMERSLEY (DEC)
and
Section 19 of the Administration Act 1903 and s 78, s 89 and s 90 of the Trustees Act 1962
and
Order 58 r 2 of the Rules of the Supreme Court 1971
BETWEEN: LEONARD COLIN HAMERSLEY
MAXINE GLADYS HAMERSLEY
DARYL COLIN HAMERSLEY
KERRY MARIE HAMERSLEY
ROBERT MALCOLM HAMERSLEY
PlaintiffsAND
BRIAN ROSSITER NEWTON (as Executor of the estate of ROBERT MALCOLM HAMERSLEY (DEC))
First DefendantTHE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second DefendantGEOFFREY JOHN BROCKMAN
Third Defendant
Catchwords:
Wills - Administration - Trusts - Real property - Life estate - Rule in Shelleys case - Surrender of prior interest - Acceleration of interest in remainder by surrender by life tenant - Vested or contingent interest - Interest vested subject to divestment - Possibility of failure of reversionary interests - Potential residuary gift or partial intestacy - Persons entitled - Class gifts - Dates for determining membership of class - Unborn children - Role of Attorney General - Declaratory relief - Hypothetical issue or real question of concern over future rights
Legislation:
Administration Act 1903
Inheritance (Family and Dependants Provision) Act 1972
Property Law Act 1969
Supreme Court Act 1935
Wills Act 1970
Result:
Declarations:
Remainderman has a vested interest subject to divestment
Surrender of life estate will accelerate interest in remainder
No partial intestacy in light of residuary devise and bequest
Category: A
Representation:
Counsel:
Plaintiffs: Dr J O'Donovan
First Defendant : Ms M L Van Der Kwast
Second Defendant : Mr N C Monahan
Third Defendant : Mr J C Curthoys
Solicitors:
Plaintiffs: Martin de Haas
First Defendant : Dwyer Durack
Second Defendant : State Solicitor's Office
Third Defendant : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610
Barns v Barns (2003) 214 CLR 169
Bassett v Bassett (2003) 58 NSWLR 258
Boraston's Case (1587) 3 Co Rep 16a
Byrne v Dunne (1910) 11 CLR 637
Campbell v Glasgow (1919) 27 CLR 31
Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394
Collins v Equity Trustees Executors and Agency Co Ltd [1997] 2 VR 166
Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297
Re Davies
Egan v Willis (1998) 195 CLR 424
Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421
Green v Dunn (1855) 20 Beav 6
Hoysted v Federal Commissioner of Taxation (1920) 27 CLR 400
Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537
Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290
In Re Astor; Astor v…
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- AGLC
- Hamersley v Newton [2005] WASC 221
- Case
- [2005] WASC 221
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the revocation of a life interest in a share of a fund granted to the testator's daughter, with a remainder to her children, resulted in the acceleration of the remainder interest in favour of the grandchildren, or if it instead left that interest postponed for the duration of the daughter's life. The court also had to consider the effect of the rule in Shelley's case on the distribution of the property, and whether the interests were subject to divestment.
The court concluded that the revocation of the life interest in the daughter's share did not revoke the gift in remainder to her children. The critical issue was whether the determination of the life interest in favour of the daughter accelerated the interest of her children and grandchildren or left it postponed. The majority of the court held that the remainder interest in favour of the grandchildren had become accelerated. The court reasoned that the limitation of the corpus of the trust fund, introduced by the words "and immediately after the deceased if any one of my sons or daughters," denoted the order of succession and created an interest expectant upon the determination of the prior interest by any means.
The court's decision was based on the principle that the destruction of a life interest does not cause an intestacy unless it is clear that the interest limited in succession to the life interest was to take effect only upon the specified event of the death of the life tenant and was not to fall into possession on the sooner determination of the life interest. The majority found that the terms of the will were consistent with an intention to distribute at a moment which may be anterior to the birth of all the members of the class.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Where under an instrument a gift is made which limits the nature or duration of the interest of the recipient and provides for subsequent interests to pass to another or other recipients it may become necessary to determine the nature of both the initial or any subsequent interests, that is to say to determine whether either is vested or contingent. The resolution of that inquiry will usually also determine whether or not a subsequent interest may be accelerated. The cause of the potential acceleration of the subsequent interest may be due to one of several factors but it is clear that in certain instances a subsequent interest may be accelerated. A description of the nature and operation of this doctrine is to be found in Halsburys Laws of England 4th Ed Reissue Vol 50 [419] which, omitting numerous references, provides:"Acceleration of subsequent interestsThe effect of failure of a prior life interest or other particular interest through the donee of that interest being dead or prevented by law from taking the gift, for example owing to the attestation of the will by him or his spouse, or through revocation by codicil, disclaimer, forfeiture or lapse is ordinarily to accelerate the subsequent interests which are limited to take effect on the regular determination of that prior interest, but the will may expressly or impliedly indicate a contrary intention. Acceleration may take place even though the effect may be to alter the class of persons designated to take by accelerating the time for ascertaining the class. This will, however, be so only where the terms of the will are consistent with an intention to distribute at a moment which may be anterior to the birth of all the members of the class. Where the trusts following the prior interest are not absolutely vested remainders but are vested subject to being divested, the court will not misconstrue the will in order to give effect to the doctrine of acceleration; and the effect of a disclaimer is that the residuary estate is held on trust for the remaindermen subject to the defeasance clause. The court construes gifts of subsequent interests as intended to take effect on the failure or determination of the prior interest in any manner. A failure of a prior gift does not, however, accelerate a subsequent executory limitation not taking effect merely on the determination of a prior interest; and subsequent gifts cannot be accelerated where the persons who are to take under them are not in existence or their interests are contingent." In Tompkins v Simmons (1930) 44 CLR 546 the issue for determination was whether or not the revocation, by a subsequent codicil, of a life interest in a share of a particular fund granted to the testator's daughter, with a remainder to the children of that daughter who attained the age of 21 years or, being a daughter married before that age, effected an acceleration of the remainder interest in favour of the grandchildren, or left that interest postponed for the duration of the life of the daughter whose gift had been revoked producing a partial intestacy in respect of the income of that part of the fund for the duration of her life. The decision at first instance by Crisp J, unchallenged on the appeal, was that the revocation by the codicil of the life estate in favour of the mother (one of the children of the deceased) while revoking the gift of the life interest did not revoke the gift in remainder of that interest to her children. This left as the issue for determination on the appeal whether or not the determination of the life interest in favour of the mother accelerated the interest of the children and grandchildren to the income of the fund or left that postponed for the duration of the mother's life resulting in an intestacy. The court decided that the remainder interest in favour of the testator's grandchildren had become accelerated (Gavan Duffy CJ, Dixon Evatt and McTiernan JJ; Starke J dissenting). Dixon J, with whom the other Justices in the majority agreed, said, at 558 – 559:"But the destruction of such an interest for life does not cause an intestacy in respect of the interest, unless it is clear that the interest limited in succession to the life interest was to take effect only upon the specified event of the death of the life tenant and was not to fall into possession on the sooner determination of the life interest. In a limitation to a donee for life and after his death upon trust for his children, or some other donee, the reference to his death whether expressed by the words 'upon', or 'after his death,' or 'from and after his decease,' or otherwise, may have one of two imports. It may mean that the second donee shall take nothing until the death of the first, or it may merely show the order of the limitations through which the estate or interest is to pass. It is well established that, prima facie, these words are to be understood as denoting the order of succession of limitations. (See per P R Turner L J, Lainson v Lainson (1854) 5 De G M & G, at 756; 43 E R at 1064).In this case the limitation of the corpus of the trust fund is introduced by the words 'and immediately after the deceased if any one of my sons or daughters'. There is nothing to rebut the prima facie rule that these words simply mark out the order of succession, and create an interest expectant upon the determination of the prior interest by whatever means that determination may be brought about."