Abbs v Abbs [2003] NSWSC 1202

Abbs v Abbs [2003] NSWSC 1202

The will's references to non-existent trusts were defective machinery, but they evidenced an intention that the administrators hold the relevant property on the trusts described in the schedules. Following Re Brown [1962] QWN 45, the trusts were treated as already existing and new trustees were appointed.

Jurisdiction
Australia
Judgment Date
15 December 2003
Procedural Posture
Succession; Construction of Will / Application Concerning Construction of Testamentary Trusts and Appointment of New Trustees
Outcome
Orders made. Costs of the proceedings may be paid out of the estate of the testator.
Legal Topics
['construction of Will' 'testamentary Trusts' 'proper Exercise of Will Making Power' 'appointment of Trustees' 'costs Out of Estate']
['succession' 'equity' 'trusts'] ['construction of Will' 'testamentary Trusts' 'proper Exercise of Will Making Power' 'appointment of Trustees' 'costs Out of Estate']

Case Brief

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Procedural Posture

Succession; Construction of Will / Application Concerning Construction of Testamentary Trusts and Appointment of New Trustees

Legal Issues

  1. 1 ["Whether the will validly disposed of residue and a holiday home to trusts that did not exist at the testator's death." 'Whether the provisions should be construed as creating trusts held by the administrators rather than as invalid gifts to non-existent trusts.' 'Whether new trustees should be appointed for the trusts.']

Ratio Decidendi

The will's references to non-existent trusts were defective machinery, but they evidenced an intention that the administrators hold the relevant property on the trusts described in the schedules. Following Re Brown [1962] QWN 45, the trusts were treated as already existing and new trustees were appointed.

Court Disposition

Orders made. Costs of the proceedings may be paid out of the estate of the testator.

Orders

  • ['With respect to the Richard Abbs Trust, the court appoints Craig Richard Abbs and Karla Therese Abbs as new trustees.' 'With respect to the Craig Richard Abbs Trust, the court appoints Craig Richard Abbs as new trustee.' 'With respect to the Karla Therese Abbs Trust, the court appoints Karla Therese Abbs as new...