Application by Perpetual Trustee Company Ltd [2017] NSWSC 35

Application by Perpetual Trustee Company Ltd [2017] NSWSC 35

The trustee was justified in concluding that surrender of Constance Marjorie Edgar's life interest would accelerate the grandchildren's remainder interests, close the class of remaindermen, and permit and require distribution to the remaindermen alive at the date of surrender who had attained 25 years, in equal shares. Although the will used the words "from and after" Constance's death, those words were construed as words of entitlement adopted on the assumption that Constance would enjoy her life interest, not as a requirement that the grandchildren could take possession only after her death.

Jurisdiction
Australia
Judgment Date
03 February 2017
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Administration of a Deceased Estate / Principal Judgment; Ex Tempore Judgment (revised)
Outcome
Judicial advice given; trustee justified in answering each question in the affirmative and costs ordered out of the estate on the indemnity basis.
Legal Topics
['judicial Advice' 'life Interest' 'remaindermen' 'acceleration of Remainder Interests' 'closure of Class' 'construction of Will']
['trusts and Trustees' 'equity' 'succession'] ['judicial Advice' 'life Interest' 'remaindermen' 'acceleration of Remainder Interests' 'closure of Class' 'construction of Will']

Case Brief

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Administration of a Deceased Estate / Principal Judgment; Ex Tempore Judgment (revised)

Legal Issues

  1. 1 ['Whether, if Constance Marjorie Edgar surrenders the life interest created by cl 6 of the will, the interests of the remaindermen are accelerated.' 'Whether, if Constance Marjorie Edgar surrenders the life interest created by cl 6 of the will, the class of remaindermen closes.' 'Whether, conditional on surrender of the life interest, the trustee is at liberty and bound to distribute the remainder interest to remaindermen alive at the date of surrender who have attained 25 years, in equal shares.' 'Whether the words "from and after" Constance Marjorie Edgar\'s death in the will required the grandchildren not to take an interest in possession until after her death.']

Ratio Decidendi

The trustee was justified in concluding that surrender of Constance Marjorie Edgar's life interest would accelerate the grandchildren's remainder interests, close the class of remaindermen, and permit and require distribution to the remaindermen alive at the date of surrender who had attained 25 years, in equal shares. Although the will used the words "from and after" Constance's death, those words were construed as words of entitlement adopted on the assumption that Constance would enjoy her life interest, not as a requirement that the grandchildren could take possession only after her death.

Court Disposition

Judicial advice given; trustee justified in answering each question in the affirmative and costs ordered out of the estate on the indemnity basis.

Orders

  • ['Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff would be justified in concluding that, if Constance Marjorie Edgar surrenders the life interest created by cl 6 of the will, the interests of the class of remaindermen are accelerated.' 'Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff...