Williamson v Carter

This case concerned an appeal from the Supreme Court of New South Wales regarding the construction of a will. The testatrix devised specific real property to her son, Wilfred, for life with remainder to his children, and stipulated that if he died childless, the property would fall into her residuary estate. The residue was to be converted into money and divided equally among her children living at that time, with provisions for deceased children's issue. However, a specific direction applied to Wilfred's share: if he was alive at the time of distribution, his share was to be retained by the trustees, paid into a savings bank, and he was to receive a weekly allowance, with the balance to be held for his children after his death. Wilfred survived the testatrix but died childless seventeen years later.

The legal issues before the court were whether Wilfred's legal personal representative was entitled to the balance of his share of the residuary estate remaining at his death, or if the testatrix died intestate as to that balance. Additionally, the court had to determine when the class of beneficiaries entitled to share in the residuary estate was to be ascertained, particularly in relation to property that fell into residue after the initial distribution period.

The High Court of Australia, applying the rule in *Lassence v. Tierney*, held that the gift of a share of the residuary estate to Wilfred was absolute in its initial form. The subsequent directions regarding the retention of his share, the allowance, and the trust for his children were considered superadded directions that did not diminish or cut down the primary absolute gift. Therefore, Wilfred's legal personal representative was entitled to the balance of his share remaining at his death. The court also determined that the class of beneficiaries for the residuary estate was to be ascertained once for all, either at the death of the testatrix or within twelve months thereafter, and that property falling into residue later did not create a new class of beneficiaries.

The appeal was allowed, and the order of the Supreme Court was varied to declare that Wilfred's legal personal representative was entitled to the balance of his residuary share. The cross-appeal was dismissed, and all parties were awarded their costs out of the estate.