Re Middleton (Dec'd)

[1998] QSC 192

IN THE SUPREME COURT
OF QUEENSLAND
  O.S. No. 2037 of 1998
Brisbane

Before Justice Wilson

[Re Middleton (dec’d)]

IN THE MATTER of the Succession Act 1981

- and -

IN THE MATTER of the Estate of Eleanor

Middleton (Deceased)

- and -

IN THE MATTER of the Will of Eleanor

Middleton (Deceased)

- and -

IN THE MATTER of an application by Melissa

Lindy Symons under Part IV of the Succession

Act

CATCHWORDS:     TRUSTS - interpretation of a will - whether beneficially had an absolute,   vested and indefeasible interest.

Succession Act 1981 s 32

Field v Field [1939] St R Qd 46

Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539

Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482

Counsel:  Mr M. Byrne for the appellant

Miss A.C. Wordsworth (Sol) for the respondent

Solicitors:  John Harris for the appellant

McCullough Robertson for the respondent

Hearing Date:              2 September 1998

REASONS FOR JUDGMENT -  WILSON J.

Judgment delivered 23 September 1998

1. Eleanor Middleton died on 6 June 1997. The applicant, her daughter Melissa Lindy Symons (nee Middleton), seeks a determination of a question arising in the construction of her will made on 8 November 1996. The respondent Werner Henry Weick is the executor and trustee appointed in the will. 

1. By clause 4 of her will the testatrix left the whole estate to the trustee -

   “UPON TRUST for my daughter, MELISSA LINDY MIDDLETON, until she attain the age of thirty [30] years and thereafter for her sole use and benefit absolutely, PROVIDED THAT in the event that my said daughter does not so survive me and leaving issue surviving, then I BEQUEATH to my trustee UPON TRUST for such issue that share which his, her or their mother would have taken under this my Will had she survived me and if more than one in equal shares as tenants in common until he, she or they shall attain the age of twenty-one [21] years and thereafter for their sole use and benefit absolutely, PROVIDED THAT in the event that no such issue survive then the following provisions of this my Will apply.”

   (underlining added.)

2. The principal asset of the estate is land at Eumundi known as “Fourwinds” estimated to be worth between $320,000 and $350,000.

1. The applicant, who is presently 24 years of age (having been born on 19 June 1974), seeks a declaration that she has a presently vested equitable interest in the land which is not subject to divestment. In written submissions her counsel said that she and the respondent seek answers to the following questions:

   (i)Is the applicant presently entitled to require the respondent to transfer the land to her immediately?

   (ii)If not, is the applicant entitled immediately to any nett rental from the land or alternatively, entitled to reside on the said land subject to her paying the outgoings?

1. A beneficiary of full age who has an absolute, vested and indefeasible interest in property may require the transfer of the property to him or her at any time notwithstanding any direction that he or she is not to enjoy it until a later time.[1] In the present case, the issue is whether the testatrix intended -

   (i)that the gift to the applicant should vest in her absolutely immediately, but that the enjoyment of it should be postponed until she attains the age of 30 years;[2] or

   (ii)that the gift to the applicant should vest in her immediately but be subject to divestment if she dies before attaining the age of 30 years;[3] or

   (iii)that the applicant should have a contingent interest, conditional upon her attaining the age of 30 years.[4]

   [1]Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482

   [2]in which case the rule in Saunders v Vautier would apply.

   [3]Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539.

   [4]Field v Field [1939] St R Qd 46.

1. The expression “until” rather than “if,” “when” or “as soon as”  suggests that the testatrix intended the first of the three alternatives unless there is a contrary intention to be found elsewhere in the will.

1. Does the phrase “not so survive me” indicate the intention that the applicant must survive the testatrix and reach the age of 30 if she is to have an absolute entitlement to the estate? That phrase is used also in clause 3 where the testatrix appointed her parents as her executors and trustees “Should...[the respondent] predecease me or not so survive me,” and in clause 6 where the testatrix made an alternative bequest to her parents “Should ...[the respondent] predecease me or not so survive me.” In my view the phrase “not so survive me” in clauses 3 and 6 is simply a draftsman’s flourish. It does not add anything to the preceding phrase “predecease me.” Counsel for the applicant suggested that it may be a reference to s 32 of the Succession Act 1981 by which a bequest lapses if the beneficiary does not survive the testator by 30 days. However, I can see no reason to give the phrase that meaning, since s 32 would apply in any event.

1. Should the phrase “not so survive me” be given a different meaning in clause 4 from that in clauses 3 and 6? In the second part of clause 4 the testatrix made an alternative bequest to the applicant’s issue of “that share which ... [the applicant].. would have taken ... had she survived me....” The words “survived me” are unqualified by “so” or anything else suggesting that she should live to age 30. This is a strong indication that the testatrix intended merely that the applicant should survive her death, and not that she should survive her and reach the age of 30 years.

1. I have concluded that the testatrix intended that the gift to the applicant should vest in her absolutely immediately, but that the enjoyment of it should be postponed until she attains the age of thirty years. However, because she is of full age and sui juris, she may require the respondent to transfer the land to her immediately.

1. Accordingly, I declare that upon the true construction of the last will of Eleanor Middleton deceased the whole of the estate of the deceased is vested absolutely in the applicant. I declare further that the applicant may require the respondent to transfer the property known as “Fourwinds” to her immediately notwithstanding the provision in the will that the respondent should hold it upon trust for her until she attain the age of 30 years.

1. I adjourn the application contained in paragraph 2 of the originating summons to a date to be fixed.

1. I order that the costs of both the applicant and the respondent be taxed on a solicitor and own client  basis and that they be paid out of the estate.