Permanent Trustee Co Ltd v The Northcott Society & Ors [1999] NSWSC 742

Permanent Trustee Co Ltd v The Northcott Society & Ors [1999] NSWSC 742

On the true construction of the will, the beneficiary had no more than a right to enjoy the residence and the income for life, and did not take an absolute gift. Clause 7 was not a general residuary clause and applied only if the trusts did not take effect or were treated as having failed under the relevant provisos. Neither event occurred. Because there was no residuary gift disposing of the remaining invested moneys and the Manly property, there was a partial intestacy and those assets passed to the next of kin.

Jurisdiction
Australia
Judgment Date
14 July 1999
Procedural Posture
Wills Construction Proceedings / Final Determination
Outcome
Partial intestacy declared in respect of the invested moneys and the property at 11/3 Osborne Road, Manly; the estate, other than the moneys referred to in passing, passed to the next of kin.
Legal Topics
['construction of Will' 'gift Over If Trust Fails' 'residuary Gift' 'partial Intestacy' 'annuity for Life Beneficiary' 'presumption Against Intestacy']
['succession' 'wills' 'equity' 'trusts'] ['construction of Will' 'gift Over If Trust Fails' 'residuary Gift' 'partial Intestacy' 'annuity for Life Beneficiary' 'presumption Against Intestacy']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Wills Construction Proceedings / Final Determination

Legal Issues

  1. 1 ['Whether the beneficiary received personal rights, a life estate or an absolute gift under the will.' 'What was meant by the words "fail or shall be treated as having failed" in clause 7 of the will.' 'Whether the presumption against intestacy justified construing clause 7 as a residuary gift.' "What should happen to the Manly property and the estate's part of the invested moneys after the beneficiary's death."]

Ratio Decidendi

On the true construction of the will, the beneficiary had no more than a right to enjoy the residence and the income for life, and did not take an absolute gift. Clause 7 was not a general residuary clause and applied only if the trusts did not take effect or were treated as having failed under the relevant provisos. Neither event occurred. Because there was no residuary gift disposing of the remaining invested moneys and the Manly property, there was a partial intestacy and those assets passed to the next of kin.

Court Disposition

Partial intestacy declared in respect of the invested moneys and the property at 11/3 Osborne Road, Manly; the estate, other than the moneys referred to in passing, passed to the next of kin.

Orders

  • ['Determine that on the true construction of the last will of Stanley Clyde Pelzer and in the events which have happened there is an intestacy in respect of the invested moneys, plus property at 11/3 Osborne Road, Manly.' 'Order that the costs of the plaintiff and the costs of each of the defendants be paid out of...