Keenahan v Keenahan

In *Keenahan v Keenahan*, the High Court of Australia considered an appeal concerning the interpretation of a will and the application of the rule against perpetuities. The dispute arose from a testamentary trust established by the deceased, which provided for income to be paid to his children during their lives, and upon the death of the last surviving child, for the capital to be divided amongst the deceased's grandchildren. The primary issue before the Court was whether the gift to the grandchildren offended the rule against perpetuities, rendering the trust void from its inception.

The central legal question was whether the interests of the grandchildren were certain to vest within the perpetuity period. This required the Court to determine the potential duration of the trust, specifically whether it could extend beyond the lives of the named beneficiaries (the deceased's children) and a period of 21 years thereafter. The rule against perpetuities dictates that an interest must vest, if at all, within a fixed period to avoid uncertainty and potential indefinite tying up of property.

The High Court reasoned that the trust instrument did not provide sufficient certainty that the grandchildren's interests would vest within the perpetuity period. The wording of the will created a possibility that the last surviving child might die more than 21 years after the death of all other children who were alive at the testator's death. This potential for an impermissibly remote vesting meant that the gift to the grandchildren was void for remoteness. The Court applied the principle that a gift will fail if there is any possibility, however remote, that it might vest outside the perpetuity period, even if in reality it vests within that period.

Consequently, the High Court allowed the appeal, finding that the testamentary trust was void from its creation due to the rule against perpetuities. The effect of this determination was that the property subject to the purported trust would devolve as on an intestacy.