Ballard v Ballard: 2020/236059 [2021] NSWSC 1015

Ballard v Ballard: 2020/236059 [2021] NSWSC 1015

On the true construction of the will and the events that occurred, cl 4.6 established separate one-third trusts over the residue for the grandchildren upon full administration of the estate; the Deed of Settlement approved by the Supreme Court of Queensland ended Kevin Robert Steele's entitlements under the will except as stated in that deed, including any entitlement under cll 6.2 and 6.3; and cl 6.4 conferred only a charitable power of appointment, in default of which income is to be accumulated, and that power may be exercised by any validly appointed successor trustee.

Jurisdiction
Australia
Judgment Date
12 August 2021
Procedural Posture
Cross Claim by Trustees for Declarations as to the Interpretation and Effect of a Will Establishing Trusts in Favour of the Testator's Grandchildren / Principal Judgment; Declarations Made; Judicial Advice Application Deferred; Costs Reserved
Outcome
Declarations made in part; judicial advice application deferred; costs reserved.
Legal Topics
['administration of Trusts' 'testamentary Trusts' 'construction of a Will' 'inception of Trusts' 'separate Trust Funds' 'charitable Power of Appointment' 'power of Maintenance, Education and Advancement']
['succession' 'trusts' 'equity' 'wills and Estates'] ['administration of Trusts' 'testamentary Trusts' 'construction of a Will' 'inception of Trusts' 'separate Trust Funds' 'charitable Power of Appointment' 'power of Maintenance, Education and Advancement']

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Procedural Posture

Cross Claim by Trustees for Declarations as to the Interpretation and Effect of a Will Establishing Trusts in Favour of the Testator's Grandchildren / Principal Judgment; Declarations Made; Judicial Advice Application Deferred; Costs Reserved

Legal Issues

  1. 1 ['Whether the will created three separate trusts and when the trusts in favour of the grandchildren were constituted' 'Whether Kevin Robert Steele retained any entitlement under the will, including under cll 6.2 and 6.3, after the Deed of Settlement' 'Whether cl 6.4 created a gift to charities or a power of appointment only' 'Whether the power under cl 6.4 was personal to Kevin and Susan or could be exercised by successor trustees' 'Whether cl 8.2 permitted application of income or capital for maintenance, education, benefit or advancement']

Ratio Decidendi

On the true construction of the will and the events that occurred, cl 4.6 established separate one-third trusts over the residue for the grandchildren upon full administration of the estate; the Deed of Settlement approved by the Supreme Court of Queensland ended Kevin Robert Steele's entitlements under the will except as stated in that deed, including any entitlement under cll 6.2 and 6.3; and cl 6.4 conferred only a charitable power of appointment, in default of which income is to be accumulated, and that power may be exercised by any validly appointed successor trustee.

Court Disposition

Declarations made in part; judicial advice application deferred; costs reserved.

Orders

  • ["Declare that on the true construction of the will of the late Laurice Geraldine Ballard dated 20 March 2008 and admitted to probate by the Supreme Court of Queensland on 13 July 2009, and in the events which have happened, the effect of cl 4.6 was to establish, upon full administration of the assets left by the...