IN THE MATTER OF THE WILL OF MICHAEL MULCAHY 6/1925

IN THE MATTER OF THE WILL OF MICHAEL MULCAHY 6/1925

The Court held that surplus income not applied for the maintenance, education, or advancement of a beneficiary prior to attaining 25 years or qualifying for the profession must be accumulated and added to the corpus. Trustees do not have power under the will or section 45 of the Trustee Act 1900 to advance the requested sum to Danial Mulcahy in current circumstances.

Parties
Testator: Michael Mulcahy; Son/beneficiary: Danial Mulcahy; Appellant/respondent: Trustees of the Will of Michael Mulcahy
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Construction of Will, Powers of Trustees, Beneficial Interest, Advancement, Trustee Discretion
Succession Law Trusts Wills Construction of Will Powers of Trustees Beneficial Interest Advancement Trustee Discretion

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Parties

Michael Mulcahy

Testator

Danial Mulcahy

Son/beneficiary

Trustees of the Will of Michael Mulcahy

Appellant/respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether surplus income accrued on children's shares under the will must be added to the original share and devolved as if it formed part of the original share.
  2. 2 Whether trustees have power to pay Danial Mulcahy the sum of £750 or any part thereof by way of advancement or premium as requested.

Ratio Decidendi

The Court held that surplus income not applied for the maintenance, education, or advancement of a beneficiary prior to attaining 25 years or qualifying for the profession must be accumulated and added to the corpus. Trustees do not have power under the will or section 45 of the Trustee Act 1900 to advance the requested sum to Danial Mulcahy in current circumstances.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed.
  • Answers of the learned judge to petition under section 45 of the Trustee Act 1900 affirmed.