Boyd v Peeters [2024] NSWSC 1035

Supreme Court New South Wales

Medium Neutral Citation: Boyd v Peeters [2024] NSWSC 1035 Hearing dates: 22 July 2024 Date of orders: 20 August 2024 Decision date: 20 August 2024 Jurisdiction: Equity Before: Meek J Decision: Declaration made as to construction of the Will sought in the defendant's cross-claim. Catchwords: SUCCESSION — Construction — Conditional gifts — Whether condition involved forfeiture in the case of non-fulfilment or was merely a personal obligation — Whether condition precedent or subsequent — Testatrix bequeathed real property to the defendant (her daughter and substitute executrix of her estate) "provided that" within two years from the date of her death she pays to the plaintiff (the testatrix's son) an amount equivalent to one-third of the market value of that property at the date of her death ("the consideration") — If the defendant failed or decided not to pay the consideration within the time specified, the property would form part of the remaining balance of the estate (i.e. residue) — As the time period specified had not yet expired and the defendant was ready, willing and able, and had attempted to, pay the consideration amount, the consequences of non-fulfilment of the condition were in a sense moot — Nonetheless, considered that the condition was a condition subsequent SUCCESSION — Executors and administrators — Rights, powers and duties — Whether the defendant executrix was permitted to borrow funds "in her personal capacity", secured with a registered mortgage over the property, in order to pay the consideration amount to the plaintiff — Will contained clauses empowering executrix and trustee to, inter alia, "use" or "otherwise deal with any real or personal property… on whatever terms as the trustee thinks fit" and "borrow, raise moneys from and to secure by mortgage… the payment… of any money to any persons" — Held that the powers set out in the Will, in context, were powers to facilitate the purposes specified or envisaged by the Will and to facilitate the execution of the trusts created by the Will and the disposition of property — Held that mortgaging the property in order to facilitate a beneficiary (in this case the defendant herself) raising sufficient funds to satisfy the condition of a gift, being to pay the consideration to the plaintiff, was for a purpose envisaged by the Will SUCCESSION — Executors and administrators — Discussion of executrix acting in her capacity as executrix and in her personal capacity — Meaning of executrix acting in her personal capacity EQUITY — Fiduciary duties — Breach — Whether defendant executrix breached her fiduciary duties by obtaining loan in her "personal capacity" secured by mortgage over the property — Whether such conduct demonstrated that the defendant favoured her own interest and failed to act in the best interests of the beneficiaries in the estate — Held that, where it had been accepted by the plaintiff that the defendant would have been permitted to obtain the loan in her capacity as executrix, there was no conflict between interest and duty SUCCESSION — Executors and administrators — Removal of executors WORDS AND PHRASES — "otherwise deal with" Cases Cited: AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170; [1986] HCA 63 AMP Capital Investors Ltd v Parsons Brinckerhoff Australia Pty Ltd; Retail Employees Superannuation Pty Ltd v AMP Capital Investors Ltd [2013] NSWSC 1633 Huntley Management Ltd v Timbercorp Securities Ltd (2010) 187 FCR 151; [2010] FCA 576 In re Cumings; Nicholls v Public Trustee (South Australia) (1945) 72 CLR 86; [1945] HCA 32 In re Porter; Logan v Northern Bank Ltd [1975] NI 157 Infigo II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC 755 Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd [2019] AC 271 Kauter v Kauter [2003] NSWSC 741 Mordecai v Mordecai (1988) 12 NSWLR 58 Nathan v Leonard [2003] 1 WLR 827 NSW Trustee and Guardian v Matthews [2024] NSWSC 595 Parkin v Thorold (1852) 16 Beav 59; 51 ER 698 Princess Ann of Hesse v Field (1963) 80 WN (NSW) 66 Re Gardiner (deceased); Gardiner v Gardiner [1971] 2 NSWLR 494 Re Lester; Lester v Lester [1942] Ch 324 The Bombay Tramway Company Ltd v The Municipal Corporation of the City of Bombay [1904] UKPC 29 Valverde v Inch [2018] NSWSC 366; (2019) 19 BPR 39421 Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 Wyatt v Perpetual Trustee Co Ltd (1917) 23 CLR 14; [1917] HCA 16 Texts Cited: Dal Pont, G E, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) Dal Pont, G E, Law of Executors and Administrators (2022, LexisNexis) Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis) Haines QC, David M, Construction of Wills in Australia (2007, LexisNexis Butterworths) Oxford English Dictionary, online ed Category: Principal judgment Parties: Matthew Lee Boyd (Plaintiff / Cross-Defendant) Samantha Grace Peeters (First Defendant / Cross-Claimant) Kevin Louis Emanuel (Second Defendant) Representation: Counsel: E K Glover (Plaintiff / Cross-Defendant) D C Price (First Defendant / Cross-Claimant)