Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering (No 2) [2014] NSWSC 1749

Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering (No 2) [2014] NSWSC 1749

The will establishes a scheme with David John Bowering as a primary but not exclusive beneficiary of the special disability trust. The discretionary powers given to the trustee are subject to but not inconsistent with the primacy of clause 7.3. Clause 7.8 is not void for public policy. The only agreed construction amendments are recognition of clause 7.3 as the primary object and a typographical correction in clause 8(a). Declarations reflecting these would be inutile.

Parties
Plaintiff: Gregory Stuart Bowering; First Defendant: Deborah Jayne Knox; Second Defendant: David John Bowering (by his tutor Margaret Colleen Hole)
Jurisdiction
Australia
Judgment Date
08 December 2014
Procedural Posture
Wills and Estates – Trust Construction / Principal Judgment After Hearing on Construction Questions
Outcome
Answers to construction questions; no declaratory relief granted as it is inutile; parties invited to provide short minutes for orders; costs reserved pending parties' further submissions or agreement.
Legal Topics
Construction of Wills, Special Disability Trusts, Trustee Discretion and Duties, Beneficiary Interests, Public Policy and Wills, Conflict of Interest in Trustees, Declaratory Relief
Wills and Estates Equity Trusts Construction of Wills Special Disability Trusts Trustee Discretion and Duties Beneficiary Interests Public Policy and Wills +2 more

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Parties

Gregory Stuart Bowering

Plaintiff

Deborah Jayne Knox

First Defendant

David John Bowering (by his tutor Margaret Colleen Hole)

Second Defendant

Procedural Posture

Wills and Estates – Trust Construction / Principal Judgment After Hearing on Construction Questions

Legal Issues

  1. 1 Proper construction of will provisions establishing a special disability trust
  2. 2 Nature of David John Bowering’s interest under the will
  3. 3 Whether certain discretionary powers granted to the trustee are void

Ratio Decidendi

The will establishes a scheme with David John Bowering as a primary but not exclusive beneficiary of the special disability trust. The discretionary powers given to the trustee are subject to but not inconsistent with the primacy of clause 7.3. Clause 7.8 is not void for public policy. The only agreed construction amendments are recognition of clause 7.3 as the primary object and a typographical correction in clause 8(a). Declarations reflecting these would be inutile.

Court Disposition

Answers to construction questions; no declaratory relief granted as it is inutile; parties invited to provide short minutes for orders; costs reserved pending parties' further submissions or agreement.