Miskelly v Arnheim [2008] NSWSC 1075

Miskelly v Arnheim [2008] NSWSC 1075

The evidence does not establish with sufficient clarity that the testator intended the trust to benefit grandchildren born after his death; therefore, rectification of the will is refused. On construction of the will and in the circumstances, the plaintiffs as adult, sui juris beneficiaries are absolutely entitled...

Source-derived case information.

Parties
Plaintiff: Rowena Kaye Miskelly; Plaintiff: Ashley Miskelly; Defendant: Richard Throsby Arnheim; Defendant: Others (executors)
Jurisdiction
Australia
Judgment Date
23 September 2008
Procedural Posture
Civil (equity, Probate/trusts) / Judgment on Cross Claim for Rectification and Substantive Claim
Outcome
Rectification of will refused; plaintiffs entitled to terminate trusts and require transfer of funds under Saunders v Vautier.
Legal Topics
Rectification of Wills, Rule in Saunders V Vautier, Beneficiaries' Rights, Construction of Testamentary Trusts
Equity Succession Law Trusts Rectification of Wills Rule in Saunders V Vautier Beneficiaries' Rights Construction of Testamentary Trusts

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Parties

Rowena Kaye Miskelly

Plaintiff

Ashley Miskelly

Plaintiff

Richard Throsby Arnheim

Defendant

Others (executors)

Defendant

Procedural Posture

Civil (equity, Probate/trusts) / Judgment on Cross Claim for Rectification and Substantive Claim

Legal Issues

  1. 1 Whether the will should be rectified to include grandchildren born after the testator's death as beneficiaries of testamentary trusts
  2. 2 Whether the plaintiffs are entitled to terminate the trusts and require transfer of the funds under the rule in Saunders v Vautier

Ratio Decidendi

The evidence does not establish with sufficient clarity that the testator intended the trust to benefit grandchildren born after his death; therefore, rectification of the will is refused. On construction of the will and in the circumstances, the plaintiffs as adult, sui juris beneficiaries are absolutely entitled to the trust property and, by application of the rule in Saunders v Vautier (and its extension), can demand transfer of the corpus of the trust funds.

Court Disposition

Rectification of will refused; plaintiffs entitled to terminate trusts and require transfer of funds under Saunders v Vautier.

Orders

  • Rectification of the will refused and cross-claim by the defendants dismissed.
  • Declaration that the plaintiffs are absolutely entitled to the capital and accumulated income of the two trusts created by the will.