Weavers v Dawson [2001] NSWSC 907

New South Wales Supreme Court

CITATION : Weavers v Dawson [2001] NSWSC 907 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3108/01 HEARING DATE(S) : 25/09/01 JUDGMENT DATE : 25 September 2001

PARTIES : Elizabeth Weavers (P) Peter Dawson, William Paul Mitchell, Jennifer Singleton and Ronald Cook (D) JUDGMENT OF : Young CJ in Eq

COUNSEL : J Needham (P) P Joseph (D) SOLICITORS : P J Donnellan & Co (P) Grahame Howe & Co (D) CATCHWORDS : SUCCESSION [190]- Wills- Construction- Gift to child who shall attain 25- Whether vested or contingent. Boraston's case (1587) 3 Co Rep 16a; 76 ER 664 Collins v Equity Trustees Executors & Agency Co Ltd [1997] 2 VR 166 Countess of Bective v Hodgson (1864) 10 HLC 656; 11 ER 1181 CASES CITED : Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539 Re Blackwell [1926] 1 Ch 223 Re Francis [1905] 2 Ch 491 Wilson v Elder (Needham AJ, 28.2.1992) DECISION : Summons dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3108 of 2001

YOUNG CJ IN EQ

Tuesday 25 September 2001

WEAVERS v DAWSON & ORS

Judgment 1 His Honour: Johanna Brannan Dow Singleton died on 8 September 1994 having first duly made and published her last will and testament of 25 August 1994, probate of which was granted to the defendants on 2 May 1995. 2 The will in clauses 4 and 6 provided as follows: "4. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my Trustees UPON TRUST for such of them children JENNIFER SINGLETON, ELIZABETH SINGLETON, MATTHEW JOHN SINGLETON and KATHRYN SINGLETON who shall survive me and who shall or shall have attained the age of Twenty five (25) years and if more than one in equal shares absolutely. 6. I EMPOWER my Trustees to raise and apply such part of the capital or the income of the putative share of any infant beneficiary under this my Will for the maintenance education or advancement in life of such infant beneficiary and to pay the same to the person for the time being having the care and custody of such infant beneficiary without being bound to see to the proper application thereof." 3 The plaintiff, Elizabeth Weavers nee Singleton, is now twenty-four years of age. She claims that she has a vested gift, or at least a vested gift subject to that being divested if she does not attain twenty-five, and is entitled to call for her share to be paid to her. The defendants take the view that the gift is not vested until Elizabeth Weavers attains twenty-five years. 4 The ordinary construction of the words "should she survive and should she attain twenty-five" connote contingency and the beneficiary does not take an interest unless she: (a) survives the testatrix; and (b) attains that age. However, it is possible in some contexts to read the words as if they involve a vested gift or a vested gift subject to being divested. 5 Part of the reason for the cases in which the Court has not read the words as contingent is the old rule that there can never be a gap in seisin so that if one grants a lease for three years and then an estate to X, unless a Court construed that gift as a gift to X now subject to the lease for three years, the whole gift would fail. This is the well known rule in Boraston's case (1587) 3 Co Rep 16a; 76 ER 664. The raison d'etre for Boraston's case has now gone but it would seem that decisions in the House of Lords in Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539 and subsequent cases, the latest I think being Collins v Equity Trustees Executors and Agency Co Limited [1997] 2 VR 166 show that despite its origin, and even though the historical justification for the rule has gone, the rule of construction still exists; see Theobald on Wills 14th ed (Stevens & Sons Ltd, London, 1982) at p 563. 6 As Sargant LJ said in Re Blackwell [1926] 1 Ch 223, 238, the rule in Phipps v Ackers operates in two well known classes of case: