McCready & Anor; Estate of Lindsay Leslie McCready

The case involved the estate of Lindsay Leslie McCready, with McCready and another party as respondents. The dispute centred around land held by trustees on behalf of the testator's son, with a remainder to the son's children. The son was childless and anticipated to remain so. The trustees sought an order under section 72 of the Trustee Act to vest the land in the son, free from the contingent rights of any unborn children. The primary legal issues were whether the nature of a section 72 order constituted a "vesting order" and if the order could be granted without a separately existing equitable entitlement in need of perfecting. Additionally, the court had to determine if section 72 permitted the variation of trusts independently of the requirement for a pre-existing equitable entitlement.

The court examined the statutory provisions and case law to determine the nature and scope of a section 72 order. It found that such an order was indeed a "vesting order," intended to transfer legal title of the property in question. The court further held that a section 72 order could only be made if there was a pre-existing equitable entitlement that needed perfecting. This requirement was integral to the operation of the statute, and without it, the trustees' application could not succeed. The court concluded that section 72 did not permit the variation of trusts independently; rather, it required the existence of an equitable entitlement that could be perfected by the vesting order.

Ultimately, the court dismissed the trustees' application. The absence of a separately existing equitable entitlement meant that the trustees could not rely on section 72 to vest the land in the son. The court's reasoning underscored the importance of adhering to the statutory requirements when seeking such orders, ensuring that equitable principles were not circumvented. The final orders of the court reflected this outcome, affirming that the trustees' application was not to be granted due to the lack of the necessary equitable entitlement.