Johnson v Johnson [2022] NSWSC 44

Johnson v Johnson [2022] NSWSC 44

The testamentary perpetual trust set up by clause 2 of the Will is void as it contravenes the rule against perpetuities and is for unidentifiable beneficiaries, not being charitable or otherwise valid; clause 7 does not create a valid charitable trust as its benefit is confined to family members and does not benefit the public; hence, there is a partial intestacy and the executors are justified in administering the estate accordingly.

Jurisdiction
Australia
Judgment Date
31 January 2022
Procedural Posture
Application for Declaratory Relief Within Estate Proceedings / Principal Judgment – Final Determination of the Application
Outcome
Declarations granted as sought; judicial advice given to executors; costs ordered in favour of plaintiffs; liberty to apply for further directions.
Legal Topics
['charitable Trusts' 'rule Against Perpetuities' 'partial Intestacy' 'judicial Advice to Executors']
['equity' 'succession' 'trusts'] ['charitable Trusts' 'rule Against Perpetuities' 'partial Intestacy' 'judicial Advice to Executors']

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Procedural Posture

Application for Declaratory Relief Within Estate Proceedings / Principal Judgment – Final Determination of the Application

Legal Issues

  1. 1 ["Whether clause 2 of the deceased's Will established a valid testamentary perpetual trust or was void by contravention of the rule against perpetuities" 'Whether clause 7 of the Will established a valid charitable trust' 'Whether, by reason of the failure of the trust, there is partial intestacy under the Will' 'Whether executors are justified in taking steps to administer the estate as if on intestacy']

Ratio Decidendi

The testamentary perpetual trust set up by clause 2 of the Will is void as it contravenes the rule against perpetuities and is for unidentifiable beneficiaries, not being charitable or otherwise valid; clause 7 does not create a valid charitable trust as its benefit is confined to family members and does not benefit the public; hence, there is a partial intestacy and the executors are justified in administering the estate accordingly.

Court Disposition

Declarations granted as sought; judicial advice given to executors; costs ordered in favour of plaintiffs; liberty to apply for further directions.

Orders

  • ['Declare that the gift of the late Kathleen Mary Johnson of her entire residuary estate by a testamentary perpetual trust as set out in clause 2 of her Will dated 4 June 2000 is void.' 'Declare that clause 7 of the Will does not operate to create a charitable trust.' 'Declare that, by reason of the failure of the...