Marshall v Tasmanian Perpetual Trustees Limited

The Full Court of the Supreme Court of Tasmania heard an appeal concerning the construction of a will. The dispute involved the residuary estate of the testator, which was bequeathed to his widow for life, with the remainder to his sisters. A further provision stipulated that if a sister predeceased the distribution of the estate, her share would pass to her children. The central issue was the time at which the class of surviving children, who were to receive the remainder interest, should be ascertained.

The court was required to determine whether the interests of the sisters' children were contingent upon surviving the life tenant or vested at an earlier point. Specifically, the court had to ascertain the relevant time for determining who qualified as a "child" for the purpose of the gift over, considering the potential for a sister to die before the distribution of the estate. This involved interpreting the testator's intention regarding the vesting of the remainder interests and the conditions attached to the gifts to the nieces and nephews.

The Full Court reasoned that the testator's intention was for the remainder interests to vest in the sisters, subject to their surviving the life tenant. In the event a sister predeceased the life tenant, her children would take her share. The court held that the class of children was to be ascertained at the date of the death of the life tenant, as this was the earliest point at which the distribution of the remainder could occur. This interpretation ensured that only those children who were alive at the time of distribution would benefit, aligning with the testator's apparent intention to provide for his nieces and nephews at the time the estate was to be divided.

The appeal was dismissed.