Dawson v Howard [1999] NSWSC 729

New South Wales Supreme Court CITATION : Dawson v Howard [1999] NSWSC 729 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1965/99 HEARING DATE(S) : 07/07/99 JUDGMENT DATE : 20 July 1999

Bryant Edward Gerrard Dawson (P) PARTIES : Joyce Eleanor Howard (D1) Peter Carey Prior (D2) JUDGMENT OF : Young J

COUNSEL : C Hodgson (P) F P Carnovale (D) SOLICITORS : Mark Fraser (P) Toomey Pegg Drevikovsky (D) CATCHWORDS : Succession [212]- Condition of gift- Income to be used for maintenance support and benefit of disabled son- Whether son entitled to whole income- Extent of trustees' discretion to allocate income. Succession [234]- Will- Construction- Absolute gift- When cut down- Gift to disabled son for maintenance support and benefit Bagots Executor Trustee Co Ltd v Minda Home Inc (1994) 62 SASR 596 Berry v Green [1938] AC 575 Re Bowes [1896] 1 Ch 507 Re Osoba [1979] 1 WLR 247; [1979] 2 All ER 393 CASES CITED : Re Peel [1936] Ch 161 Perpetual Trustee Co (Ltd) v Hindmarsh (1948) 48 SR (NSW) 454 Sacks v Gridiger (1991) 22 NSWLR 502 Re Sanderson's Trust (1857) 3 K & J 497; 69 ER 1206 Turner v Turner [1984] Ch 100 Re Weaver (1882) 21 Ch D 615 DECISION : See para 37

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

TUESDAY 20 JULY 1999

1965/99 - DAWSON V HOWARD & ANOR

JUDGMENT

1 HIS HONOUR : Edward Dawson died on 29 May 1979. Probate of his last will dated 20 March 1978 was granted to the defendants on 23 August 1979. The testator died a widower with one son, the plaintiff. The testator's two wives, the plaintiff's mother and stepmother both predeceased the testator. 2 The plaintiff at the time of his father's death was aged about 53. He is currently under the protection of a guardianship order because the Guardianship Tribunal considered he was incapable of managing his property or affairs. Medical evidence shows that he has what Dr Tedeschi described as a mild development disability. He has severe health problems, but Dr Tedeschi said that he actually appears less able than he really is. She says in her report of 18 February 1998, "He had almost no formal education (one day, he reckons) and cannot read or write effectively. However, he is certainly at present, an amiable gentleman, who can follow the sport on TV, discuss his health sensibly and understands his medical problems to a degree. He has formed a stable and loving relationship with his wife Barbara who is also mildly intellectually disabled. Mr Dawson enjoys drawing and colouring in, both of which he does extremely well. He can write his name. I believe he could have learnt a great deal more if given more opportunities." 3 The doctor's report then went on to say, "Mr Dawson is likely to have numerous medical appointments over the next few years. He will need a good wheelchair. His medications are expensive. His home could do with some decent furniture and he would benefit from holidays away. Mrs Dawson has just been diagnosed with breast cancer and may very well need a mastectomy and subsequent rehabilitation. Mr Dawson could certainly do with some help (cooking, cleaning etc) in this period. The quality of his nutrition is poor and his clothes are only just adequate.