Re Estate of Michael Charles Murphy; Karin Ellis [2005] NSWSC 104

Re Estate of Michael Charles Murphy; Karin Ellis [2005] NSWSC 104

The trust created by the will is a trust for the payment of income only and not for capital. Except for the plaintiff's interest (which is for life), the trust constitutes a trust for payment of income in perpetuity, and such provisions fail for breach of the rule against accumulations/perpetuities. Gifts to the National Anti-Vivisection Society Limited, Adelaide Institute, and Institute of Historical Review are not valid charitable gifts and therefore fail; the gift to the Egypt Exploration Society is valid as charitable. On failure, both corpus and income of the failed gifts form part of the residue and, in the absence of a residuary clause, devolve to the next of kin under partial...

Jurisdiction
Australia
Judgment Date
25 February 2005
Procedural Posture
Judicial Advice / Trusts Proceeding / Judgment on Application for Judicial Advice
Outcome
Advice and directions given as set out in summary and paras 48-49; directions and liberty to apply granted.
Legal Topics
['rule Against Accumulations' 'rule Against Perpetuities' 'charitable Trusts' 'partial Intestacy']
['equity' 'succession Law' 'trusts'] ['rule Against Accumulations' 'rule Against Perpetuities' 'charitable Trusts' 'partial Intestacy']

Case Brief

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Procedural Posture

Judicial Advice / Trusts Proceeding / Judgment on Application for Judicial Advice

Legal Issues

  1. 1 ['Whether the beneficiaries of the trust created by the will are entitled to income only or capital as well' 'Whether the trust constitutes a trust for payment of income in perpetuity and if so, whether such trusts fail for breach of the rule against accumulations or perpetuities' 'Whether the gifts under the trust are valid charitable gifts or otherwise invalid' 'How failed gifts (to both corpus and income) are to be distributed under partial intestacy' 'Entitlement to distribute capital to beneficiaries or next of kin and process for distribution in event of failed trusts']

Ratio Decidendi

The trust created by the will is a trust for the payment of income only and not for capital. Except for the plaintiff's interest (which is for life), the trust constitutes a trust for payment of income in perpetuity, and such provisions fail for breach of the rule against accumulations/perpetuities. Gifts to the National Anti-Vivisection Society Limited, Adelaide Institute, and Institute of Historical Review are not valid charitable gifts and therefore fail; the gift to the Egypt Exploration Society is valid as charitable. On failure, both corpus and income of the failed gifts form part of the residue and, in the absence of a residuary clause, devolve to the next of kin under partial...

Court Disposition

Advice and directions given as set out in summary and paras 48-49; directions and liberty to apply granted.

Orders

  • ["Plaintiff's costs to be paid out of the estate on an indemnity basis." 'Plaintiff has liberty to mention the proceedings on 14 days notice.' "Distribution of failed trusts to deceased's father (next of kin) is to be made only after notice is given under s 63(8) of the Trustee Act 1925, allowing time for...