PERPETUAL TRUSTEES WA LTD as Executor of the Estate of HENRY JAMES DARVELL -v- DARVELL & ORS [2001] WASC 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 123
Case No:	CIV:1448/2000	Heard:	14 MARCH 2001
Coram:	WHEELER J	Delivered:	18/05/01
No of pages:	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

CITATION : PERPETUAL TRUSTEES WA LTD as Executor of the Estate of HENRY JAMES DARVELL -v- DARVELL & ORS [2001] WASC 123 CORAM : WHEELER J HEARD : 14 MARCH 2001 DELIVERED : 18 MAY 2001 FILE NO/S : CIV 1448 of 2000 BETWEEN : PERPETUAL TRUSTEES WA LTD as Executor of the Estate of HENRY JAMES DARVELL

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASC 123
Decision Date

CaseChat Overview and Summary

The case of Perpetual Trustees WA Ltd v Darvell [2001] WASC 123 involved the Supreme Court of Western Australia in the context of a dispute over the administration of a trust created by the will of Henry James Darvell. The plaintiff, Perpetual Trustees WA Ltd, as executor of the estate, sought directions regarding the management of the property and the rights of the life tenant, Marion Faith Darvell. The central issue was whether Marion had a life interest in the property at 48 Henry Street, East Cannington, and whether this interest was conditional upon her payment of rates, taxes, insurance premiums, maintenance, and other outgoings.

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.

Orders