Tompkins v Simmons

The case of *Tompkins v Simmons* concerned a testator's will and a subsequent codicil. The testator established a trust fund from his residuary estate, with the income to be paid to his wife for life. After his wife's death, the income was to be divided equally among his six children, with provisions for the trustees to retain and expend portions for their maintenance. The will further stipulated that upon the death of any child, their one-sixth share of the trust fund, along with any unapplied income, was to be held for the benefit of that child's children who attained the age of twenty-one or, if daughters, married before that age. A codicil revoked the interest in the income bequeathed to the testator's daughter, Margaret Charlotte Bray, and substituted other benefits for her. The dispute arose regarding the disposition of the income from Margaret's revoked share during her lifetime, and the timing of the vesting of her children's interests.

The central legal issues before the High Court were whether the revoked share of income from Margaret Charlotte Bray's portion of the trust fund was undisposed of, leading to an intestacy, or if it should be distributed to the testator's other children. Additionally, the court had to determine whether the interests of Margaret Charlotte Bray's children in the corpus of the trust fund were accelerated by the revocation of their mother's life interest, or if they were contingent upon her death.

The High Court, by a majority, held that the will created six undivided shares in the trust fund, with each share limited to a child for life, followed by a gift to that child's children. The court reasoned that the revocation of Margaret Charlotte Bray's life interest by the codicil did not create an intestacy regarding the income of her share. Instead, the gift of the corpus to her children was accelerated, taking effect immediately upon the death of the testator's widow, subject to the children meeting the conditions of attaining twenty-one or marrying. The court applied the principle that where a prior interest in a settled gift is determined prematurely, a subsequent vested interest is accelerated, unless the testator's intention clearly indicates otherwise.

The appeal was allowed, and the order of the Supreme Court of Tasmania was varied. The High Court declared that the interests of Margaret Charlotte Bray's children were accelerated and took effect upon the death of the testator's widow, and that there was no intestacy as to the income of her share during her lifetime.