Mackey v Mackey

In *Mackey v Mackey*, 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 between the beneficiaries of the will and the executor, who sought directions from the court regarding the validity of certain testamentary trusts.

The primary legal issue before the High Court was whether the trusts created by the testator's will offended the rule against perpetuities. Specifically, the court had to determine if the interests of the beneficiaries were certain to vest within the perpetuity period. This involved an analysis of the language used in the will to ascertain the testator's intentions and the precise timing of the vesting of the future interests.

Heydon J, delivering the judgment of the Court, applied established principles of will construction and the rule against perpetuities. His Honour emphasised that the rule requires that an interest must be capable of vesting, if at all, within a fixed period, which is typically 21 years after the death of a person alive at the date of the instrument. The Court found that the wording of the will created a possibility that the interests might vest outside this period, thereby infringing the rule. Consequently, the trusts were deemed void.

The High Court ordered that the appeal be dismissed, upholding the decision of the lower court that the testamentary trusts were invalid due to their contravention of the rule against perpetuities.