Abbs v Abbs [2003] NSWSC 1202

New South Wales Supreme Court

CITATION : Abbs v Abbs [2003] NSWSC 1202 HEARING DATE(S) : 6/11/03 JUDGMENT DATE : 15 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Orders made. Costs of proceedings to be paid out of the estate of the testator.

CATCHWORDS : SUCCESSION [167]- Specification of beneficiaries- Construction- Proper exercise of will-making power- Bequest to trust to be established- Intention of testator- Court to make will operative where possible- Gift held to be to administrators on trust for parties named as beneficiaries in proposed trusts- New trustees appointed. CASES CITED : Re Brown [1962] QWN 45 PARTIES : Craig Richard Abbs and Karla Therese Abbs (P) Craig Richard Abbs and Karla Therese Abbs as the Administrators (with the Will annexed) of the Estate of the late Richard Abbs, deceased (D) FILE NUMBER(S) : SC 5176/03 COUNSEL : D Burgess (S) (P) SOLICITORS : Burgess Foat (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Monday 15 December 2003

5176/03 – ABBS v ABBS JUDGMENT 1 HIS HONOUR: Richard Abbs died on 8 June 2001. Mr Abbs executed his last will and testament on 21 July 1999. This court granted administration, with the will annexed, to the plaintiffs on 19 September 2002. 2 The testator, in the events which have happened, gave the residue of his estate as follows: "(1) One Third to The CRAIG RICHARD ABBS Trust as set out in Schedule 1; and (2) One Third to The KARLA THERESE ABBS Trust as set out in Schedule 2; and (3) One Third to The BRETT ABBS Trust as set out in Schedule 3." 3 The deceased gave his holiday home to the Richard Abbs Trust as set out in Schedule 4. 4 As at the date of the testator's death, there was no trust in existence known by the name Craig Richard Abbs Trust, Karla Therese Abbs Trust, Brett Abbs Trust or Richard Abbs Trust. Instead the will directed the executor to set up those Trusts. 5 A will must give the testator's property either to a person or a charitable purpose. A trust as such does not have corporate personality and I do not consider it a proper exercise of the will making power to direct an executor to set up a trust and then dispose of the testator's property by paying it over to that trust. I know of no precedent for such a will being a valid disposition of property and indeed passages such as that in Hutley's Australian Wills Precedents 4th Ed (Butterworths, Sydney, 1989) p 148, seems to suggest that there are considerable limitations on setting up such trusts. One can either give property to a pre-existing trust by careful words (see eg Hutley's Precedent 25.03) or alternatively, give the property to the executors and direct that they set up a fund which will be held on particular discretionary trusts. 6 However, it is the court's duty to endeavour to make the will work as far as the court can do so. The approach taken by Stable J in Re Brown [1962] QWN 45 at p 106 is to treat what is arguably a defective will as evincing an intention of the testator that the administrators hold the various parcels of property on the trusts which the testator has described as the Craig Richard Abbs Trust etc. This is able to be done by treating the way in which the will is expressed as merely setting up defective machinery to bring about the testator's purpose and benefaction. 7 I am content to follow this authority. Another possible way of considering the matter is to treat the gift as an executory devise by way of springing use and treating the direction to the executor of the will as a fiduciary power. However, I prefer the Re Brown solution. 8 I should note that there is apparently no dispute between the beneficiaries over the matter and the next of kin are the two plaintiffs plus the children of a deceased sibling, none of whom would be better off if the will were construed as a partial intestacy. The widow would be better off on a partial intestacy but she is in the care of the Protective Commissioner and of her children and has been adequately provided for. 9 The estate is almost at the stage of being fully administered. The administrators wish to set up the Trusts. On the construction of the will which I have adopted the Trusts already exist, so that all that is necessary to do is to appoint new trustees. 10 Accordingly, the court orders as follows: