McCready & Anor; Estate of Lindsay Leslie McCready [2004] NSWSC 887

McCready & Anor; Estate of Lindsay Leslie McCready [2004] NSWSC 887

Section 72 of the Trustee Act 1925 does not confer power to make a vesting order extinguishing contingent interests of unborn persons unless there is a separately existing equitable entitlement; it is not a variation of trusts provision or a general vehicle for granting property outright to a life tenant in absence of children.

Jurisdiction
Australia
Judgment Date
24 September 2004
Procedural Posture
Claim for Order Under Statutory Provision / Final Judgment
Outcome
Claim dismissed
Legal Topics
['vesting Orders' 'contingent Rights of Unborn Persons' 'variation of Trusts']
['trusts and Trustees'] ['vesting Orders' 'contingent Rights of Unborn Persons' 'variation of Trusts']

Case Brief

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Procedural Posture

Claim for Order Under Statutory Provision / Final Judgment

Legal Issues

  1. 1 ['Does section 72 of the Trustee Act 1925 permit vesting property in a life tenant free from contingent interests in unborn children?' 'Is section 72 a variation of trusts provision or limited to perfecting independently existing equitable interests?']

Ratio Decidendi

Section 72 of the Trustee Act 1925 does not confer power to make a vesting order extinguishing contingent interests of unborn persons unless there is a separately existing equitable entitlement; it is not a variation of trusts provision or a general vehicle for granting property outright to a life tenant in absence of children.

Court Disposition

Claim dismissed

Orders

  • ["The plaintiffs' claim for the order pursuant to section 72 of the Trustee Act 1925 sought in the amended summons is dismissed."]