Gellert v Viselle [2011] NSWSC 560

Gellert v Viselle [2011] NSWSC 560

The court construed the will as intending that only those persons who answer the description of beneficiary at each relevant time (i.e., at exercise of trustee's discretion) fall within the class. Thus, upon ending her de facto relationship with Dr Schwartz, Ms Viselle ceased to be a beneficiary under the trust unless she recommences such a relationship or marries him.

Jurisdiction
Australia
Judgment Date
10 June 2011
Procedural Posture
Separate Question / Construction of Will/testamentary Trust: Determination of Beneficiaries
Outcome
Separate question answered: No. (Ms Viselle is no longer a beneficiary unless she marries or re-enters a de facto relationship with Dr Schwartz)
Legal Topics
['construction of Wills' 'testamentary Trusts' 'de Facto Relationships' 'beneficiaries']
['succession' 'equity'] ['construction of Wills' 'testamentary Trusts' 'de Facto Relationships' 'beneficiaries']

Case Brief

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Procedural Posture

Separate Question / Construction of Will/testamentary Trust: Determination of Beneficiaries

Legal Issues

  1. 1 ["Whether the defendant, as a former de facto partner of the deceased's son, remains a beneficiary under a discretionary testamentary trust after cessation of the relationship"]

Ratio Decidendi

The court construed the will as intending that only those persons who answer the description of beneficiary at each relevant time (i.e., at exercise of trustee's discretion) fall within the class. Thus, upon ending her de facto relationship with Dr Schwartz, Ms Viselle ceased to be a beneficiary under the trust unless she recommences such a relationship or marries him.

Court Disposition

Separate question answered: No. (Ms Viselle is no longer a beneficiary unless she marries or re-enters a de facto relationship with Dr Schwartz)

Orders

  • ["Amend orders made on 26 May 2011 by deleting the words 'clauses 3 and 4 of the Schedule' and inserting 'clauses 2 and 3 of the Schedule'." 'Answer the separate question: No, unless the defendant marries Jerry Leslie Schwartz or enters into a new de facto relationship with him.' 'The costs of both parties of the...