Re Bell (No 4) [2005] NSWSC 812

Re Bell (No 4) [2005] NSWSC 812

The surrender of the remaining life tenants' income interests accelerates the remainders and advances the class closing date. The phrase "next of kin being determined in accordance with the laws of distribution on intestacy" refers to the NSW laws of distribution on intestacy currently in force, so spouses receive a share. If the trustees propose to end the trust and distribute capital accordingly, distribution in accordance with the identified paragraphs of counsel's advice would be appropriate.

Jurisdiction
Australia
Judgment Date
11 August 2005
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 / Preliminary Judicial Advice
Outcome
Preliminary judicial advice given.
Legal Topics
['advice to Trustees' 'surrender of Life Interests' 'acceleration of Remainders' 'class Closing' 'construction of Will' 'next of Kin' 'intestacy Distribution']
['equity' 'trusts' 'succession'] ['advice to Trustees' 'surrender of Life Interests' 'acceleration of Remainders' 'class Closing' 'construction of Will' 'next of Kin' 'intestacy Distribution']

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 / Preliminary Judicial Advice

Legal Issues

  1. 1 ['Whether the surrender by the remaining life tenants of their interests in income accelerates the remainders.' 'Whether acceleration of the remainders also advances the date on which the class closes.' 'Whether the testamentary phrase "next of kin being determined in accordance with the laws of distribution on intestacy" includes spouses under NSW intestacy law.']

Ratio Decidendi

The surrender of the remaining life tenants' income interests accelerates the remainders and advances the class closing date. The phrase "next of kin being determined in accordance with the laws of distribution on intestacy" refers to the NSW laws of distribution on intestacy currently in force, so spouses receive a share. If the trustees propose to end the trust and distribute capital accordingly, distribution in accordance with the identified paragraphs of counsel's advice would be appropriate.

Court Disposition

Preliminary judicial advice given.

Orders

  • ['Trustees should file an affidavit stating whether they propose to distribute in accordance with the reasons of counsel and the Court.' 'If the trustees wish to determine the trust and distribute the remaining income and capital, they should amend the summons to ask whether they would be justified in carrying out...