NSW Trustee and Guardian v Malone [2011] NSWSC 382

NSW Trustee and Guardian v Malone [2011] NSWSC 382

On the true construction of the will, the words leaving "my property & home" to Michael Perroux "to be shared with his sisters" were not precatory and did not create an absolute gift to him. They vested the legal estate in Michael Perroux upon trust to share the Mosman property with Denise Perroux, Suzanne Malone, Narelle Perroux and Margaret Perroux as they thought fit, and failing agreement, for the five in equal shares as tenants in common.

Jurisdiction
Australia
Judgment Date
04 May 2011
Procedural Posture
Succession; Construction of Will / Ex Tempore Judgment on Summons
Outcome
Questions in the summons answered; declaration made that the gift of the property and home was to Michael Perroux upon trust for him and his sisters as they think fit, and failing agreement in equal shares as tenants in common; costs of all parties ordered out of the estate, with the plaintiff's costs on the...
Legal Topics
['construction of Will' 'gift of Real Property' 'precatory Words' 'trusts' 'partial Intestacy' 'costs Out of Estate']
['succession' 'equity' 'trusts'] ['construction of Will' 'gift of Real Property' 'precatory Words' 'trusts' 'partial Intestacy' 'costs Out of Estate']

Case Brief

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Procedural Posture

Succession; Construction of Will / Ex Tempore Judgment on Summons

Legal Issues

  1. 1 ['Whether the gift of "my property and home" included the contents of the home.' 'Whether the gift of "my property and home" was an absolute gift to Michael Perroux.' 'Whether the gift was to Michael Perroux and his sisters in shares as they agreed, and failing agreement in equal shares.' 'Whether the gift was to Michael Perroux absolutely subject to rights of use or occupation in favour of his sisters.' 'Whether a failure to agree on sharing meant that Michael Perroux took absolutely.' 'Whether there was any need to answer questions concerning partial intestacy where no ultimate residue would remain.']

Ratio Decidendi

On the true construction of the will, the words leaving "my property & home" to Michael Perroux "to be shared with his sisters" were not precatory and did not create an absolute gift to him. They vested the legal estate in Michael Perroux upon trust to share the Mosman property with Denise Perroux, Suzanne Malone, Narelle Perroux and Margaret Perroux as they thought fit, and failing agreement, for the five in equal shares as tenants in common.

Court Disposition

Questions in the summons answered; declaration made that the gift of the property and home was to Michael Perroux upon trust for him and his sisters as they think fit, and failing agreement in equal shares as tenants in common; costs of all parties ordered out of the estate, with the plaintiff's costs on the...

Orders

  • ['Paragraph 1(a), (b), (c), (d), (e), (f), (g), (h), (i) - no.' 'In relation to paragraph 2, declare upon the true construction of the will dated 31 August 2006 of Patricia Flynn, deceased, and in the events which have happened, the gift of "my property and home" under the heading of "Gifts" in the said will is a...