Public Trustee v Bennett & Anor (Revised) [2004] NSWSC 955

Public Trustee v Bennett & Anor (Revised) [2004] NSWSC 955

Paragraph 6 of the will engrafts a trust on the absolute gift in paragraph 4; it imposes a condition subsequent, such that the beneficiaries (the grandchildren living at the testator's death) acquire a vested interest on death, with possession deferred until each attains 32 years of age; this does not offend the rule against perpetuities due to the statutory 'wait and see' provisions.

Jurisdiction
Australia
Judgment Date
15 October 2004
Procedural Posture
Summons for Construction of Will / Judgment
Outcome
Determinations made on construction of the will; declaration that the Public Trustee is entitled to administer the estate and may distribute it in accordance with these determinations.
Legal Topics
['construction of Wills' 'trusts Engrafted on Absolute Gifts' 'rule Against Perpetuities' 'vesting in Interest Vs Possession' 'class Gifts']
['succession Law' 'wills and Probate'] ['construction of Wills' 'trusts Engrafted on Absolute Gifts' 'rule Against Perpetuities' 'vesting in Interest Vs Possession' 'class Gifts']

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

Summons for Construction of Will / Judgment

Legal Issues

  1. 1 ['Whether paragraph 6 engrafts a trust on the absolute gift in paragraph 4 or is merely precatory' 'Whether paragraph 6 is void for uncertainty or for infringing the rule against perpetuities' 'Whether the rule in Lassence v Tierney applies' 'Whether paragraph 6 is a condition precedent or subsequent' 'Whether vesting in interest or in possession is delayed' 'Whether the gift of residue was a class gift and when the class closed']

Ratio Decidendi

Paragraph 6 of the will engrafts a trust on the absolute gift in paragraph 4; it imposes a condition subsequent, such that the beneficiaries (the grandchildren living at the testator's death) acquire a vested interest on death, with possession deferred until each attains 32 years of age; this does not offend the rule against perpetuities due to the statutory 'wait and see' provisions.

Court Disposition

Determinations made on construction of the will; declaration that the Public Trustee is entitled to administer the estate and may distribute it in accordance with these determinations.

Orders

  • ['Declaration that the Public Trustee is entitled to administer the estate and is at liberty to distribute it in accordance with the determinations made in the reasons for judgment.' 'Parties to bring in short minutes of orders reflecting the reasons.']