Austin & Anor v Wells & Ors [2008] NSWSC 1266

Austin & Anor v Wells & Ors [2008] NSWSC 1266

The word "vest" in clause 3(c) was ambiguous. Although prima facie vesting means vesting in interest, the absence of a gift over meant that construing the clause as postponing vesting in interest until Elizabeth Ruby Mathews attained 30 could create an intestacy. Because a construction that "vest" meant vest in possession was reasonably open and avoided intestacy, the estate was presently vested in interest in Ms Mathews, enabling her to terminate the trust under the rule in Saunders v Vautier.

Jurisdiction
Australia
Judgment Date
28 November 2008
Procedural Posture
Wills Construction Proceeding Seeking Declarations and an Order Concerning Administration of a Deceased Estate / Judgment on Amended Summons
Outcome
Declarations and order granted; substituted service direction made.
Legal Topics
['construction of Wills' 'vested and Contingent Interests' 'rule in Saunders V Vautier' 'presumption Against Intestacy' 'service Under Uniform Civil Procedure Rules']
['succession' 'trusts' 'equity'] ['construction of Wills' 'vested and Contingent Interests' 'rule in Saunders V Vautier' 'presumption Against Intestacy' 'service Under Uniform Civil Procedure Rules']

Case Brief

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Procedural Posture

Wills Construction Proceeding Seeking Declarations and an Order Concerning Administration of a Deceased Estate / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether clause 3(c) of the will gave Elizabeth Ruby Mathews a vested interest in the net proceeds of the estate or only a contingent interest upon attaining 30 years.' 'Whether Elizabeth Ruby Mathews could require the trustees to transfer the estate to her and terminate the trust under the rule in Saunders v Vautier.' 'Whether the amended summons should be taken to have been served on the fourth defendant under r 10.14(3) of the Uniform Civil Procedure Rules.']

Ratio Decidendi

The word "vest" in clause 3(c) was ambiguous. Although prima facie vesting means vesting in interest, the absence of a gift over meant that construing the clause as postponing vesting in interest until Elizabeth Ruby Mathews attained 30 could create an intestacy. Because a construction that "vest" meant vest in possession was reasonably open and avoided intestacy, the estate was presently vested in interest in Ms Mathews, enabling her to terminate the trust under the rule in Saunders v Vautier.

Court Disposition

Declarations and order granted; substituted service direction made.

Orders

  • ['Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules direct that the amended summons be taken to have been served on the fourth defendant on 4 September 2008.' 'Make the declarations and order in paragraphs 1, 3 and 4 of the amended summons.' 'The exhibit may be returned.']