JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2015
DATE OF JUDGMENT:	22 January 2016
CASE MAY BE CITED AS:	Re De Bruyn
MEDIUM NEUTRAL CITATION:	[2016] VSC 6

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WILLS AND ESTATES — Construction of wills — Construction and effect of testamentary disposition — Entitlement of beneficiary—Discretionary testamentary trusts — Supreme Court (General Civil Procedure) Rules 2005, O 54.02 — Fell v Fell (1922) 31 CLR 268 — Butlin v Butlin (1966) 113 CLR 353

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms U Stanisich	Burke & Associates Lawyers

HER HONOUR:

Background

Gerrit Pieter De Bruyn (‘the deceased’) died on 1 February 2010, leaving a will dated 28 September 1994 (‘the will’). By his will, the deceased appointed his son, Gary Michael De Bruyn, (‘the plaintiff’) as the executor and trustee of his estate. Probate of the will was granted to the plaintiff on 12 April 2010.

The deceased was survived by his two adult sons: the plaintiff and Robert Peter De Bruyn (‘Robert’). The will provides that the deceased’s residuary estate is to be divided into two equal parts. One part is bequeathed to the plaintiff absolutely and the remaining part is to be held upon the trusts established by clause 8 (‘the clause 8 trusts’) which provide for the benefit of Robert on a discretionary basis during his lifetime.

Robert has a history of paranoid schizophrenia. In 1988 he killed his mother whilst suffering from delusions and hallucinations. He now resides at Thomas Embling Hospital. Since 7 December 1989 he has received a disability support pension.

On 4 August 2015, the Administrative Appeals Tribunal (Social Services and Child Support Division) (‘the AAT’) determined that Robert would be attributed with 100 per cent of the assets and income of the clause 8 trusts. As a result of this decision, Robert’s disability support pension was cancelled by the Department of Human Services. Robert has appealed the decision and the appeal will be heard in 2016.

Plaintiff’s application

In this proceeding, the plaintiff seeks the determination of five questions concerning the construction of the clause 8 trusts.

Clause 8 of the will provides:

8(a) I GIVE DEVISE AND BEQUEATH the remaining half share of my residuary estate upon trust to pay or apply in each year or income as my Trustee may in his absolute discretion think fit such part or parts of the income thereof to or for the benefit of my son ROBERT PETER DE BRUYN during his life time and I DIRECT my Trustee to hold the share (both capital and income) for such child or children (if any) of my said son ROBERT PETER DE BRUYN as are living at the date of his death and, if more than one, equally…

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 Re De Bruyn

Details

AGLC: Re De Bruyn [2016] VSC 6
Case: [2016] VSC 6
Decision Date: 22 January 2016

CaseChat Overview and Summary

The case of Re De Bruyn involved a dispute concerning the interpretation and execution of a will, specifically the establishment of discretionary testamentary trusts. The matter was heard in the Supreme Court, where the primary concern was the extent to which certain beneficiaries were entitled to the assets distributed under the deceased's will. The will in question was made by the late Mr. De Bruyn, who had bequeathed his estate to trustees to be held on discretionary trusts for his beneficiaries. The legal issues at hand centred on the interpretation of the terms of the will, particularly the scope of the trustees' discretion in distributing the estate and the entitlements of the named beneficiaries.

The court was required to determine whether the will's language was sufficiently clear to delineate the beneficiaries' rights, or whether the trustees retained significant discretion that could potentially exclude some beneficiaries. This involved an analysis of relevant case law, including the principles set out in Fell v Fell and Butlin v Butlin, which provide guidance on the interpretation of discretionary trusts in wills. The court's task was to balance the testator's intent, as expressed in the will, with the established legal principles governing discretionary trusts.

In reaching its decision, the court emphasised the importance of the testator's clear expression of intent and the need for certainty in the distribution of estate assets. The court found that the will contained sufficient guidance to allow the trustees to exercise their discretion in a manner consistent with the testator's intentions. The court held that the beneficiaries' entitlements were determinable based on the terms of the will, and that the trustees' discretion was not unfettered but rather guided by the explicit directions of the testator. The outcome was that the beneficiaries were entitled to receive distributions from the estate according to the terms outlined in the will, subject to the trustees' discretion, which was constrained by the clear intentions of the deceased.

Orders