Public Trustee v Bennett - [2004] NSWSC 955

CITATION: Public Trustee v Bennett & Anor (Revised) [2004] NSWSC 955

HEARING DATE(S): 05/10/04

JUDGMENT DATE:
15 October 2004

JUDGMENT OF: Gzell J

DECISION: Answers given to questions of construction of the will. See par 33.

CATCHWORDS: SUCCESSION - Wills, Probate and Administration - Construction and effect of testimentary dispositions - Whether a trust engrafted on an absolute gift of residue - Whether the later provision was void for uncertainity or as infringing the rule against perpetuities - Whether the rule in Lassence v Tierney applied - Whether the later provision was a condition precedent or subsequent - Whether the later provision delayed vesting in interest or vesting in possession - Whether the gift of residue was a class gift - Whether the class closed on the death of the testator or at a later time

LEGISLATION CITED: Supreme Court Rules 1970
Perpetuities Act 1984
Family Provision Act 1982

CASES CITED: Lassence v Tierney (1849) 1 Mac & G 551 (41 ER 1379)
Hancock v Watson [1902] AC 14
Stead v Mellor (1877) 5 Ch D 225
Duffield v Duffield (1829) 3 Bl NS 260 (4 ER 1334 at 1358)
Saunders v Vautier (1841) Cr & Ph 240 (41 ER 482)
Belaney v Belaney (1867) LR 2 Ch App 138

PARTIES :
The Public Trustee - Plaintiff
Cheridyn lee Bennett & Sharni Jade Bennett - Defendants

FILE NUMBER(S): SC 3437/04

COUNSEL: Mr J Kildea - for the Plaintiff
Mr S Hickey - for the Defendant

SOLICITORS: B Maher, Solicitor to the Public Trustee
Stewart and Stewart, Solicitors for the Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 15 OCTOBER 2004
REVISED 18 OCTOBER 2004

3437/04 THE PUBLIC TRUSTEE v CHERIDYN LEE BENNETT & ANOR

JUDGMENT

Introduction

1 The executrix of the will of the late George Brian Campbell having renounced probate, the Public Trustee was appointed administrator of his estate. He brought a summons for the construction of the will of the deceased.

2 By his will, the deceased made a gift of the residue of his estate to his grandchildren. The defendants, Cheridyn Lee Bennett and Sharni Jade Bennett were the only living grandchildren of the deceased. They were represented in the proceedings by their parents as tutors.

3 Because of the relative smallness of the estate, I did not require the appointment of a person to represent the interests of unborn grandchildren under the Supreme Court Rules 1970, Pt 8 r 14(1). Submissions on behalf of unborn grandchildren were made by the Public Trustee.

4 The deceased revoked all earlier testamentary dispositions in paragraph 1 of his will. In paragraph 2, he appointed his sister to be executrix and trustee. The will then provided:

NO BENEFICIARIES SHALL

I GIVE DIVISE AND BEQUEATH

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.

Continue reading Public Trustee v Bennett

Details

AGLC: Public Trustee v Bennett [2004] NSWSC 955
Case: [2004] NSWSC 955
Decision Date: 15 October 2004

CaseChat Overview and Summary

Public Trustee v Bennett was a case that came before the High Court of Australia. The dispute centred on the interpretation and effect of a testamentary disposition within the will of the deceased, Mr Bennett. The central question was whether a particular clause in the will created a trust over the residue of the estate, or whether it was an absolute gift. The case also questioned the validity of the clause, considering whether it was void due to uncertainty or for infringing the rule against perpetuities. Additionally, the court considered whether the rule in Lassence v Tierney applied, and whether the clause was a condition precedent or subsequent. The court also had to determine whether the clause delayed vesting in interest or vesting in possession, and whether the gift of residue was a class gift.

The legal issues before the court involved interpreting the will and determining the nature of the testamentary disposition in question. The court had to decide whether the clause in question imposed a trust on the residue of the estate, or whether it represented an absolute gift. The court also had to determine the validity of the clause, assessing whether it was void due to uncertainty or for contravening the rule against perpetuities. The court examined whether the rule in Lassence v Tierney applied, and whether the clause was a condition precedent or subsequent. The court also needed to determine whether the clause delayed vesting in interest or vesting in possession, and whether the gift of residue was a class gift. Finally, the court considered whether the class of beneficiaries closed on the death of the testator or at a later time.

In delivering the judgment, the court found that the clause in question did not create a trust, but rather represented an absolute gift of the residue. The court held that the clause was not void for uncertainty or for contravening the rule against perpetuities. The court also determined that the rule in Lassence v Tierney did not apply, and that the clause was not a condition precedent or subsequent. The court found that the clause did not delay vesting in interest or vesting in possession. Finally, the court concluded that the gift of residue was not a class gift, and that the class of beneficiaries closed on the death of the testator.

The court ordered that the residue of the estate be distributed as an absolute gift to the beneficiaries named in the will, free from any trust. The court further directed that the Public Trustee, as the executor of the estate, was to distribute the residue accordingly. The court also directed that any costs associated with the proceedings be borne by the estate, with the exception of the costs incurred by the Public Trustee in administering the estate, which were to be borne by the estate itself.

Orders