Watson v Watson [1999] NSWSC 325

Watson v Watson [1999] NSWSC 325

The gift of the deceased's shares in Wilkie Watson Publications Pty. Ltd. to Stuart Wilkie Watson was subject only to the condition that Stuart's businesses, Tumut Office Supplies and the Junee Southern Cross, be incorporated into Wilkie Watson Publications Pty. Ltd. That condition was a condition precedent, was not void for uncertainty, but had to be performed within a reasonable time. Because incorporation had not occurred within a reasonable time and no agreement had been reached as to value or incorporation, the condition failed and the gift to Stuart failed. Clause 3[C] and clause 6 therefore operated, requiring the shares to be sold under clause 6 with the proceeds distributed...

Jurisdiction
Australia
Judgment Date
14 April 1999
Procedural Posture
Equity Proceeding for Construction of a Will / Questions in Summons Determined; Subsequent Costs Ruling
Outcome
The construction questions were answered so that the share gift to Stuart failed for non-fulfilment of a condition precedent, the clause 6 sale and distribution provisions applied, and a rateable costs order was made.
Legal Topics
['construction of Testamentary Dispositions' 'conditional Gifts' 'condition Precedent and Condition Subsequent' 'uncertainty' 'failure of Condition' 'costs in Estate Litigation']
['succession' 'wills, Probate and Administration' 'equity'] ['construction of Testamentary Dispositions' 'conditional Gifts' 'condition Precedent and Condition Subsequent' 'uncertainty' 'failure of Condition' 'costs in Estate Litigation']

Case Brief

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Procedural Posture

Equity Proceeding for Construction of a Will / Questions in Summons Determined; Subsequent Costs Ruling

Legal Issues

  1. 1 ['Whether the gift of shares to Stuart Wilkie Watson was dependent upon performance of the incorporation condition alone or also upon other directions or wishes in the will.' 'Whether the gift of shares was subject to a condition and, if so, whether it was a condition precedent or a condition subsequent.' 'Whether the condition was void for uncertainty because no time for performance was fixed and because of uncertainty about valuation.' 'Whether the gift failed through non-fulfilment of the condition.' 'What consequence followed from non-fulfilment of the condition, including whether the shares formed part of residue or were to be dealt with under clause 6.' 'What costs order should be made in the estate proceedings.']

Ratio Decidendi

The gift of the deceased's shares in Wilkie Watson Publications Pty. Ltd. to Stuart Wilkie Watson was subject only to the condition that Stuart's businesses, Tumut Office Supplies and the Junee Southern Cross, be incorporated into Wilkie Watson Publications Pty. Ltd. That condition was a condition precedent, was not void for uncertainty, but had to be performed within a reasonable time. Because incorporation had not occurred within a reasonable time and no agreement had been reached as to value or incorporation, the condition failed and the gift to Stuart failed. Clause 3[C] and clause 6 therefore operated, requiring the shares to be sold under clause 6 with the proceeds distributed...

Court Disposition

The construction questions were answered so that the share gift to Stuart failed for non-fulfilment of a condition precedent, the clause 6 sale and distribution provisions applied, and a rateable costs order was made.

Orders

  • ['The gift of shares to Stuart Wilkie Watson was held to be subject to a condition precedent.' 'The condition was held not to be void for uncertainty.' 'A reasonable time for fulfilment of the condition had passed.' 'The shares referred to in clause 3 were to be dealt with under clause 6, with the proceeds of sale...