PERPETUAL TRUSTEES WA LTD as Executor of the Estate of HENRY JAMES DARVELL -v- DARVELL & ORS [2001] WASC 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 123 | |
| Case No: | CIV:1448/2000 | 14 MARCH 2001 | |
| Coram: | WHEELER J | 18/05/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Questions answered: 1 Yes 2 Unnecessary to answer 3 No 4 Unnecessary to answer 5 Unnecessary to answer 6 Unnecessary to answer | ||
| PDF Version |
| Parties: | PERPETUAL TRUSTEES WA LTD as Executor of the Estate of HENRY JAMES DARVELL MARION FAITH DARVELL EDITH MARY DARVELL as Executor of the Estate of ANTHONY JOHN DARVELL DOREEN DAPHNE DARVELL PATRICIA JUNE SLIGHT |
Catchwords: | Equity Trusts Application by trustee for directions Life tenant and remainderman Maintenance and payment of outgoings Turns on own facts Succession Wills, probate and administration Construction and effect of testamentary dispositions No new point of principle |
Legislation: | Trustees Act 1962 (WA) |
Case References: | Carrodus v Carrodus [1913] VLR 1 Ford v Keenan (1914) 30 NSW WN 214 Gibbons v Gibbons [1920] 1 Ch D 372 Lehman v Haskard, unreported; SCt of NSW; Equity Div; 29 August 1996 Perpetual Trustee Co Ltd v Godsall [1979] 2 NSWLR 785 Edwards v Edwards (1918) 24 CLR 312 MacLaren v Stainton (1858) 27 LJCh 442 O'Hern v O'Hern, unreported; SCt of WA; Library No 7358;10 November 1988 Perpetual Trustees WA Ltd (as Executor of the will of Goyder (dec)) v Goyder & Ors, unreported; SCt of WA; Library No 990138; 24 March 1999 Re Herklot's Will Trusts [1964] 2 All ER 66 Re Sinnamon (dec) [1940] QWN 41 Re Trusts of the Will of Gilchrist (1867) 6 SCR (NSW) Eq 74 The Trustees Executors & Agency Co Ltd v Jope (1902) 27 VLR 706 Thomas v Haworth (1918) 20 WALR 78 Wilkie v The Equity Trustees Executors & Agency Co Ltd [1909] VLR 277 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARION FAITH DARVELL
First Defendant
EDITH MARY DARVELL as Executor of the Estate of ANTHONY JOHN DARVELL
Second Defendant
DOREEN DAPHNE DARVELL
Third Defendant
PATRICIA JUNE SLIGHT
Fourth Defendant
Catchwords:
Equity - Trusts - Application by trustee for directions - Life tenant and remainderman - Maintenance and payment of outgoings - Turns on own facts
(Page 2)
Succession - Wills, probate and administration - Construction and effect of testamentary dispositions
No new point of principle
Legislation:
Trustees Act 1962 (WA)
Result:
Questions answered:
1 Yes
2 Unnecessary to answer
3 No
4 Unnecessary to answer
5 Unnecessary to answer
6 Unnecessary to answer
Representation:
Counsel:
Plaintiff : Ms M R Bloch
First Defendant : Mr S M Standing
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- Case
- [2001] WASC 123
- Decision Date
CaseChat Overview and Summary
The court examined the language of the will and considered precedents such as Gibbons v Gibbons and Ford v Keenan to determine the nature of Marion's interest in the property. The court concluded that the will created a life interest in the property for Marion, as indicated by the use of words like "occupy" and "use." The court also found that the requirement for Marion to pay certain outgoings did not impose a condition on the continuation of her life interest, but rather constituted a duty or obligation.
Given that there was no immediate threat to the remaindermen's interests due to the property's state of disrepair and Marion's ability to fulfill her obligations, the court saw no need for the property to be sold or for Marion to be evicted. The court emphasized that any future action would depend on whether Marion failed to meet her obligations. Therefore, the court decided that Marion had a life interest in the property, but her interest was not conditional on her making specific payments, and there was no need to sell the property at that time.
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