Cobcroft v Bruce [2013] NSWSC 774

Cobcroft v Bruce [2013] NSWSC 774

On the proper construction of cl 9(v) in the context of the will as a whole, the widow's power to "deal" with the public company shares was confined to dealings during her lifetime. The words requiring her ultimately to give those shares, or the remainder, to the plaintiffs were not merely precatory or repugnant to an absolute gift, but imposed a Gill v Gill equitable condition requiring her, or her estate, to ensure that the shares she still held at death and which were the same shares inherited from the testator were conveyed to the plaintiffs. Replacement shares from merger, rights issues, sale proceeds, dividends, dividend reinvestment or bonus shares were not "those shares", but...

Jurisdiction
Australia
Judgment Date
14 June 2013
Procedural Posture
Wills Construction Proceedings / Principal Judgment After Hearing; Matter Stood Over for Orders
Outcome
Plaintiffs entitled to the shares held by the widow at her death that were the same shares inherited from the testator, and to dividends on those shares since the widow's death; matter stood over for short minutes of order.
Legal Topics
['construction of Will' 'gift to Widow on Condition' 'equitable Obligation' 'specific Performance or Equitable Compensation' 'public Company Shares' 'dividends']
['wills and Estates' 'equity'] ['construction of Will' 'gift to Widow on Condition' 'equitable Obligation' 'specific Performance or Equitable Compensation' 'public Company Shares' 'dividends']

Case Brief

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Procedural Posture

Wills Construction Proceedings / Principal Judgment After Hearing; Matter Stood Over for Orders

Legal Issues

  1. 1 ["Whether cl 9(v) of Gavin John Baxter Cobcroft's will gave his widow an absolute interest in public company shares so that the subsequent words were repugnant or precatory, or imposed an enforceable limitation or condition in favour of the plaintiffs." "Whether the widow's power to deal with the shares extended to testamentary disposition or was confined to dealings during her lifetime." "Whether the plaintiffs were entitled to shares remaining in the widow's estate and to dividends declared after her death." 'Whether replacement, merger, rights issue, reinvestment or dividend-derived shares were included in the expression "those shares".']

Ratio Decidendi

On the proper construction of cl 9(v) in the context of the will as a whole, the widow's power to "deal" with the public company shares was confined to dealings during her lifetime. The words requiring her ultimately to give those shares, or the remainder, to the plaintiffs were not merely precatory or repugnant to an absolute gift, but imposed a Gill v Gill equitable condition requiring her, or her estate, to ensure that the shares she still held at death and which were the same shares inherited from the testator were conveyed to the plaintiffs. Replacement shares from merger, rights issues, sale proceeds, dividends, dividend reinvestment or bonus shares were not "those shares", but...

Court Disposition

Plaintiffs entitled to the shares held by the widow at her death that were the same shares inherited from the testator, and to dividends on those shares since the widow's death; matter stood over for short minutes of order.

Orders

  • ['The second defendants hold the shares that their testatrix held as at the date of her death, which were the same shares as she inherited from her husband, subject to an equitable obligation that they be conveyed to the plaintiffs.' "The plaintiffs are entitled to the dividends on such shares since the date of the...