Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

On the proper construction of the Will, the deceased intended Ms Murphy to receive an equal one-third benefit, but with the trustee required to use that benefit to assist in purchasing a house or home unit in which she was to live. The trust property therefore vests when the trustee uses the funds for that purpose and the purchase is completed; the property should be placed in Ms Murphy's name and thereafter is hers, including for the purposes of any later move or death. The words "in purchasing" include costs directly associated with acquisition, and any excess at the purchase stage may be applied consistently with assisting and maintaining Ms Murphy's ownership of the property.

Jurisdiction
Australia
Judgment Date
20 March 2018
Procedural Posture
Application for Judicial Advice Concerning Construction and Administration of a Testamentary Trust / Principal Judgment; Judicial Advice
Outcome
Judicial advice given.
Legal Topics
['judicial Advice' 'testamentary Trust Construction' 'construction of Wills' 'intestacy' 'trustee Powers']
['equity' 'trusts and Trustees' 'succession'] ['judicial Advice' 'testamentary Trust Construction' 'construction of Wills' 'intestacy' 'trustee Powers']

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Procedural Posture

Application for Judicial Advice Concerning Construction and Administration of a Testamentary Trust / Principal Judgment; Judicial Advice

Legal Issues

  1. 1 ['When the trust vests.' 'In whose name the trust should purchase the property for Ms Murphy to reside in.' 'What happens to the property if Ms Murphy chooses to move out of the property.' "What happens to the property in the event of Ms Murphy's death." 'Whether the trustee can apply trust funds to maintenance and outgoings of any property purchased by the trust.' 'If the trustee cannot do so, what power the trustee has with any funds remaining in the trust after the purchase of a property for Ms Murphy to reside in.']

Ratio Decidendi

On the proper construction of the Will, the deceased intended Ms Murphy to receive an equal one-third benefit, but with the trustee required to use that benefit to assist in purchasing a house or home unit in which she was to live. The trust property therefore vests when the trustee uses the funds for that purpose and the purchase is completed; the property should be placed in Ms Murphy's name and thereafter is hers, including for the purposes of any later move or death. The words "in purchasing" include costs directly associated with acquisition, and any excess at the purchase stage may be applied consistently with assisting and maintaining Ms Murphy's ownership of the property.

Court Disposition

Judicial advice given.

Orders

  • ['The trust property vests when used by the trustee for the purposes of the trust.' "The property should be purchased in Ms Murphy's name." "After purchase, the property remains Ms Murphy's property and she can do with it what she wishes." "On Ms Murphy's death, the property forms part of her estate and may be dealt...