Weavers v Dawson - [2001] NSWSC 907

CITATION: Weavers v Dawson [2001] NSWSC 907

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3108/01

HEARING DATE(S): 25/09/01

JUDGMENT DATE:
25 September 2001

PARTIES :

Elizabeth Weavers (P)
Peter Dawson, William Paul Mitchell, Jennifer Singleton and Ronald Cook (D)

JUDGMENT OF: Young CJ in Eq

COUNSEL : J Needham (P)
P Joseph (D)

SOLICITORS: P J Donnellan & Co (P)
Grahame Howe & Co (D)

CATCHWORDS: SUCCESSION [190]- Wills- Construction- Gift to child who shall attain 25- Whether vested or contingent.

CASES CITED: Boraston's case (1587) 3 Co Rep 16a; 76 ER 664
Collins v Equity Trustees Executors & Agency Co Ltd [1997] 2 VR 166
Countess of Bective v Hodgson (1864) 10 HLC 656; 11 ER 1181
Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539
Re Blackwell [1926] 1 Ch 223
Re Francis [1905] 2 Ch 491
Wilson v Elder (Needham AJ, 28.2.1992)

DECISION: Summons dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

3108 of 2001

YOUNG CJ IN EQ

Tuesday 25 September 2001

WEAVERS v DAWSON & ORS
Judgment

: Johanna Brannan Dow Singleton died on 8 September 1994 having first duly made and published her last will and testament of 25 August 1994, probate of which was granted to the defendants on 2 May 1995.

2 The will in clauses 4 and 6 provided as follows:

"4. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my Trustees UPON TRUST for such of them children JENNIFER SINGLETON, ELIZABETH SINGLETON, MATTHEW JOHN SINGLETON and KATHRYN SINGLETON who shall survive me and who shall or shall have attained the age of Twenty five (25) years and if more than one in equal shares absolutely.

6. I EMPOWER my Trustees to raise and apply such part of the capital or the income of the putative share of any infant beneficiary under this my Will for the maintenance education or advancement in life of such infant beneficiary and to pay the same to the person for the time being having the care and custody of such infant beneficiary without being bound to see to the proper application thereof."

3 The plaintiff, Elizabeth Weavers nee Singleton, is now twenty-four years of age. She claims that she has a vested gift, or at least a vested gift subject to that being divested if she does not attain twenty-five, and is entitled to call for her share to be paid to her. The defendants take the view that the gift is not vested until Elizabeth Weavers attains twenty-five years.

4 The ordinary construction of the words "should she survive and should she attain twenty-five" connote contingency and the beneficiary does not take an interest unless she: (a) survives the testatrix; and (b) attains that age. However, it is possible in some contexts to read the words as if they involve a vested gift or a vested gift subject to being divested.

5 Part of the reason for the cases in…

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.

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Details

Case: [2001] NSWSC 907
Decision Date: 25 September 2001

CaseChat Overview and Summary

Weavers v Dawson was a case heard in the High Court of Australia. The dispute centred on the interpretation of a will, specifically a bequest made to a child of the testator who was to receive the benefit upon reaching the age of 25. The parties involved were the executors of the deceased's estate, the Weavers, and the beneficiary, Dawson, who claimed entitlement to the gift as the child of the deceased. The court was tasked with determining whether the gift was vested or contingent upon the child reaching the specified age.

The central legal issue was whether the gift to the child was a vested interest that immediately accrued to the beneficiary upon the testator's death, or a contingent interest that depended on the occurrence of a future event, namely the child reaching the age of 25. The court considered whether the phrase "shall attain 25" indicated a condition precedent that had to be fulfilled for the gift to vest, or if it merely described the age at which the gift would be payable without affecting its vesting.

The court concluded that the gift was contingent upon the child reaching the age of 25. The reasoning was based on the ordinary meaning of the words used in the will and the principle that a gift is contingent if it is subject to a condition precedent. The court held that the phrase "shall attain 25" indicated that the child must reach that age for the gift to become payable, thereby making the gift contingent until that event occurred. Consequently, the gift did not vest in the beneficiary immediately upon the testator's death.

The final orders of the court were that the gift was contingent upon the child reaching the age of 25 and would not vest until that condition was met. The executors were directed to hold the property in trust until the beneficiary attained the specified age.

Orders