Willett v Futcher

In *Willett v Futcher*, the High Court of Australia considered a dispute concerning the interpretation of a will and the application of the rule against perpetuities. The case involved the distribution of a deceased's estate and the validity of certain testamentary trusts established by the will.

The primary legal issue before the High Court was whether the trusts created by the will offended the rule against perpetuities, which dictates that an interest in property must vest within a perpetuity period of 21 years after the death of a life in being. Specifically, the court had to determine if the beneficiaries of the trusts were ascertainable within this period, or if the vesting of their interests was postponed indefinitely.

The High Court, in its joint judgment, applied established principles of will construction and the rule against perpetuities. The court analysed the language of the will to ascertain the testator's intention regarding the vesting of the trust property. It concluded that the provisions of the will, as drafted, created a situation where the beneficiaries' interests might not vest within the perpetuity period, thereby rendering the trusts void. The court reasoned that the wording of the will did not sufficiently limit the class of potential beneficiaries or the time of vesting to comply with the rule.

Consequently, the High Court found that the trusts were invalid and ordered that the property subject to those trusts should be distributed as on an intestacy.