Vassella & Anor v Fryer & Anor

SUPREME COURT OF QUEENSLAND

[Vassella & Anor v Fryer & Anor]

File No S 7344 of 1999

BETWEEN:

ANNABEL JANE VASSELLA

First Applicant

AND:

RACHEL ANNE VASSELLA

Second Applicant

AND:

NORMAN RUSSELL FRYER

First Respondent

AND:

RAYMOND ALAN GEORGE SAUNDERS

Second Respondent

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

9 December 1999

HEARING DATE:

28 September 1999

ORDER:

APPLICATION DISMISSED.

CATCHWORDS:

WILLS – CONSTRUCTION OF WILL – gift over - application of Saunders v Vautier (1841) 49 ER 282.

COUNSEL:

Mr M J Byrne for the applicants.

Mr D G Mullins for the respondents.

SOLICITORS:

John Harris Solicitor for the applicants.

Nicolsons Solicitors for the respondents.

1. The applicants are the surviving daughters of Neville Cyril Vassella and the respondents are his executors.  They seek declarations that the whole of Neville Vassella’s estate is vested in them, that they have an immediate entitlement to the transfer to them of the whole of the estate and an order that the transfer be effected. 

1. Clause 10 of Neville Vassella’s will deals with the disposition of this estate.  The clause commences by providing that his executors “must hold my estate in trust”.  The outcome of the application turns on the effect to be given to cl 10.3 of the will.  This provides:

“10.3     Subject to clauses 10.1 and 10.2:

(a)to give absolutely and divide all the residue of My Estate equally (as tenants in common) among those of my Children who survive me provided that where any of my Children at the time of my death have survived me but have not attained the age of thirty (30) years then notwithstanding any other law or legislation My Executors will hold My Estate in trust until those of my Children who do survive me attain the age of thirty (30) years provided further that subject to clause 10.3(b) where only one (1) of my children survives me, then I give absolutely the whole of My Estate to that child provided that My Executors hold My Estate until my only surviving Child attains the age of thirty (30) years; and

(b)if any child of mine referred to in clause 10.3(a) has already died or dies before me or before attaining a vested interest leaving Children then those Children on attaining eighteen (18) years of age will take equally (as tenants in common) the share which their parent would otherwise have taken provided that same will be held by My Executors until same occurs.”

1. The applicants submit that on the true construction of the clause they have a vested interest not conditional on their attaining thirty with a direction that the trustees hold that interest so that the applicants do not receive the estate in possession until both of them attain thirty.  They then rely on the application of the rule in Saunders v Vautier (1841) 49 ER 282. This is to the effect that where a gift is vested absolutely in a beneficiary of full age and capable of granting a full discharge,…