MATTER : The estate of ROBERT MALCOLM HAMERSLEY (DEC)

Section 19 of the Administration Act 1903 and s 78, s 89 and s 90 of the Trustees Act 1962

Order 58 r 2 of the Rules of the Supreme Court 1971

BRIAN ROSSITER NEWTON (as Executor of the estate of ROBERT MALCOLM HAMERSLEY (DEC))

Wills - Administration - Trusts - Real property - Life estate - Rule in Shelleys case - Surrender of prior interest - Acceleration of interest in remainder by surrender by life tenant - Vested or contingent interest - Interest vested subject to divestment - Possibility of failure of reversionary interests - Potential residuary gift or partial intestacy - Persons entitled - Class gifts - Dates for determining membership of class - Unborn children - Role of Attorney General - Declaratory relief - Hypothetical issue or real question of concern over future rights

Administration Act 1903

Inheritance (Family and Dependants Provision) Act 1972

Property Law Act 1969

Supreme Court Act 1935

Wills Act 1970

Remainderman has a vested interest subject to divestment

Surrender of life estate will accelerate interest in remainder

No partial intestacy in light of residuary devise and bequest

Andrews v Partington [1791] EngR 1535; (1791) 3 Bro CC 401; 29 ER 610

Bassett v Bassett [2003] NSWSC 691; (2003) 58 NSWLR 258

Boraston's Case [1587] EngR 3; (1587) 3 Co Rep 16a

Byrne v Dunne [1910] HCA 75; (1910) 11 CLR 637

Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31

Church Property Trustees, Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394

Collins v Equity Trustees Executors and Agency Co Ltd [1997] 2 VR 166

Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297

Egan v Willis [1998] HCA 71; (1998) 195 CLR 424

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268

Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

Green v Dunn [1855] EngR 238; (1855) 20 Beav 6

Hickling v Fair [1899] AC 15

Hoysted v Federal Commissioner of Taxation [1920] HCA 29; (1920) 27 CLR 400

Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537

Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290

In Re Astor; Astor v Astor [1922] 1 Ch 364

In Re Crothers' Trust [1915] 1 Ch 53

In Re Francis; Francis v Francis [1905] 2 Ch D 295

In Re Townsend's Estate; Townsend v Townsend (1886) 34 Ch D 357

Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799

Jull v Jacobs (1876) LR 3 Ch D 703

Kotsar v Shattock [1981] VicRp 2; [1981] VR 13

Lainson v Lainson [1854] EngR 872; (1854) De G M & G 754; 43 ER 1063

Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69

Maddison v Chapman [1858] EngR 962; (1858) 4 K & J 709; (1858) 70 ER 294

Marion's Case, Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 281

Minister for Health v AS & Anor [2004] WASC 286; (2004) WAR 517

M'Kay v M'Kay [1901] 1 IR 109

Phipps v Ackers (1842) 9 CL & Fin 583; 8 ER 539

Re Duke of Wellington, Glentanar v Wellington [1947] Ch 506; [1948] 1 Ch 118

Re Flower's Settlement Trust [1957] 1 All ER 462

Re Harker's Will Trusts [1969] 3 All ER 1

Re Hartigan [1989] 2 Qd R 401

Re Hodge Deceased, Midland Bank Executor and Trustee Company Ltd v Morrison [1943] 2 All ER 304

Re Howes (deceased); Quinton v Howes [1971] 2 NSWLR 387

Re Kebty - Fletcher's Will Trust, Public Trustee v Swan and Snowden [1969] 1 Ch 339

Re Mallinson Consolidated Trusts; Mallinson & Ors v Cooley [1974] 2 All ER 530

Re Penton's Settlements [1968] 1 All ER 36

Re Syme Deceased [1980] VicRp 13; [1980] VR 109

Re Taylor (deceased) Lloyds Bank Ltd v Jones [1957] 3 All ER 56

Re Young's Settlement Trust [1959] 1 WLR 457

Sanderson Computers Pty Ltd v Urica Liberty Systems BV (1998) 44 NSWLR 73

Shelley's Case [1579] EngR 149; (1581) 1 Co Rep 93b; 76 ER 206

Tompkins v Simmons [1931] HCA 8; (1930) 44 CLR 546

Van Grutten v Foxwell [1897] AC 658

Alsop Wilkinson (a firm) v Neary [1995] 1 All ER 431

Bateman's Bay v Aboriginal Fund [1998] HCA 49; (1998) 194 CLR 247

Chapman v Chapman [1954] UKHL 1; [1954] AC 429

Doe decd, Hiscocks v Hiscocks [1839] EngR 65; (1839) 5 M & W 363; (1839) 151 ER 154

Hardwick v Hardwick (1873) LR Eq 168

Hill v Crook (1872) LR 6 HL 265

In Re Hatfield's Will Trusts, Hatfield v Hatfield [1958] Ch 469

In Re Longman's Settlement Trusts [1962] 1 WLR 455

Lainson v Lainson [1854] EngR 872; (1854) De G M & G 754; 43 ER 1063

P v P [1994] HCA 20; (1994) 181 CLR 583

Re Blocksidge [1997] 1 Qd R 234

Re Christmas' Settlement Trusts [1986] 1 Qd R 372

Re Johnson, Donily v Johnson (1893) 68 LT (NS) 20

Re Legh's Resettlement Trusts, Public Trustee v Legh [1937] 3 All ER 823

Re Scott; (deceased) Widows v Friends of the Clergy Corporation & Ors [1975] 2 All ER 1033

Sifton v Sifton [1938] AC 656

Whitby v Von Luedecke [1906] 1 Ch 783

1 EM HEENAN J: The major issue of importance, and not a little difficulty, in these proceedings is whether a proposed surrender by Leonard Colin Hamersley of his life interest in the farming properties at Walkaway near Geraldton, known as "Fairfield", left to him under his great uncle's will, would produce an acceleration of a conditional entitlement to the estate in fee simple in remainder for his elder son, Daryl Colin Hamersley, or whether it would produce some other effect which should be declared by the Court.

2 This originating summons has been amended in material respects several times. Even at the hearing counsel for the plaintiffs did not press for declarations or orders in respect of all the issues raised by the amended originating summons. He concentrated instead on the question of potential acceleration of the interest in remainder in the event of a surrender of the life interest in Fairfield submitting that other questions could, or should, be left for later attention in light of the possibility that the determination of the major issue would render it unnecessary to return to them. Because the affidavit evidence relied on by the parties originally addressed questions raised in the first version of the originating summons, much of that is directed to issues which now have far less significance than before. Accordingly, when considering the background and the evidence which has been accepted on all sides in these proceedings the change in the perspective of the proceedings must take these changes into account.

3 Robert Malcolm Hamersley ("Uncle Robert") died at Geraldton on 30 August 1984. He was then in his 93rd year and, for much of his life, he had farmed his property at Walkaway known as Fairfield. Fairfield comprises about 399 hectares of high quality farming and grazing land in seven adjoining lots on either side of the Greenough River. In a valuation prepared in August 2003 and not challenged its market value was estimated to be $1,125,000.

4 Robert Malcolm Hamersley never married and had no children. He did have a brother and a sister and it was some of their grandchildren, his great nephews and great nieces who were the only named beneficiaries in his will.

5 Uncle Robert made his last will on 7 December 1979. After his death on 30 August 1984 probate of that will was granted to Brian Rossiter Newton, an accountant of Geraldton, the executor named in the will. By provisions in the will, set out in full below, Uncle Robert left Fairfield to his great-nephew Leonard Colin Hamersley for life stating that after the death of Leonard, Fairfield should go to Leonard's then eldest living son in remainder absolutely. The executor, Mr Newton, entered upon the administration of Uncle Robert's estate and, in due course, had all the Fairfield land registered in Leonard Hamersley's name as proprietor of a life interest with himself, as executor, registered as the proprietor of the estate in fee simple in remainder. That is the current state of the registered proprietorship of Fairfield and has been so for many years.

6 Leonard Colin Hamersley and his wife Maxine Gladys Danielle Hamersley themselves own, and in some other cases lease, additional farming properties near Fairfield. They live on Fairfield and farm that property, and also farm the other nearby properties in partnership all as part of the one extended farming operation. They have three adult children, Daryl Colin Hamersley, Kerry Marie Hamersley and Robert Malcolm Hamersley, all of whom, it seems, have been brought up on Fairfield and the nearby family properties.

7 During the 2004 calendar year Leonard Hamersley, his wife and children, on the recommendation of their financial and legal advisors turned their attention to making arrangements for future estate planning for the use and disposition of the family properties near Walkaway. The affidavit evidence shows that in July 2004 each of Leonard Colin Hamersley and Maxine Gladys Danielle Hamersley made a mutual will and, together with their three adult children, entered into a deed of family arrangement dated 21 July 2004 which, generally speaking, confirmed that the two parents had made the mutual wills on the faith of reciprocal promises and on undertakings given by the children to agree upon the eventual disposition of the family properties in a way which would provide for Fairfield to be left to the elder son Daryl, for other named farming properties to be left to the younger son, Robert, and for certain other properties, (together with the implementation of some provisions to effect approximate equalisation in value of portions) to go to their daughter, Kerry. This deed contains terms which purport to be capable of being pleaded as a defence in the event that, on the death of either of the parents, any other member of the family should institute proceedings under the Inheritance (Family and Dependants Provision) Act 1972. The deed also contains a covenant by each of the parties not to make any application under that legislation.

8 One of the uncertainties about the future disposition of the family property which the scheme of mutual wills and the deed of family arrangement are apparently intended to address is the doubt which the parties entertain about the ability of Leonard Colin Hamersley, or indeed of others, to effect a binding future disposition of the ownership of Fairfield. Despite the prominence of this estate planning scheme, its constituent components and the evidence adduced on this originating summons no submissions of any kind were made by the parties about the effectiveness or validity of the various assumptions upon which these purported obligations have been constructed, nor about the effect of covenants in the deed limiting, or purporting to restrict rights of recourse to, remedies under the Inheritance Act. It is therefore inappropriate here to embark upon any consideration of the potential effectiveness of that deed or those covenants purporting to limit or restrict access to relief under the Inheritance Act but, in passing over this evidence, I wish to make expressly clear that there may well be many questions about the validity of those assumptions and that established authority demonstrates that neither testators nor members of their family can prevent or contract out of the entitlement of an eligible applicant to apply for relief under the Inheritance Act: see Barns v Barns (2003) 214 CLR 169; and Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69.

9 A further reason was identified in the affidavits of Mr Leonard Colin Hamersley, his wife and each of their three children for seeking orders and declarations from this Court as originally proposed. According to the affidavits, these members of the Hamersley family now believe that, although the terms of Uncle Robert's will appear to pass the ownership of Fairfield to Daryl Hamersley, on his father's death, the advice which the family has received is that the provision in the will regarding the remainder interest in Fairfield may be subject to s 27 of the Property Law Act 1969 with the result that the remainder interest in Fairfield will be shared among those persons who become entitled to Leonard Hamersley's estate when he dies. The position is put by Mr Leonard Hamersley in par 22 of his affidavit where he deposes:

"I have been advised by my solicitors that if s 27 of the Property Law Act [1969] applies to the Deceased's will and if I were to pass away today, the persons who would receive the remainderman interest in Fairfield would be Maxine and my children."

The affidavits go on to explain how this would, if it were to occur, undermine the implementation of the agreed scheme of distribution of family property embodied in the mutual wills made by the parents and in the deed of family arrangement entered into between the parents and the three children.

10 Another feature of the evidence which must be noted, although it was not pursued in argument, is the reference by these members of the Hamersley family to the practical need to secure an interest in fee simple in possession in Fairfield in order to secure further advances from the Hamersley family's bankers for farming operations on Fairfield and the other nearby properties. The evidence, again not challenged, was that banks and other similar lending institutions were not disposed to advance money to Mr Leonard Colin Hamersley or to other members of the family on the security only of his life interest in Fairfield.

11 Originally, as the proceedings were formulated, the plaintiffs sought declarations that Daryl Hamersley is the person entitled to the fee simple in remainder expectant upon the death of Leonard Colin Hamersley in Fairfield or, alternatively, that Maxine Hamersley, Daryl Hamersley, Kerry Hamersley and Robert Hamersley are the persons so entitled to the fee simple in remainder expectant upon the death of Leonard Colin Hamersley. Further, as originally formulated, the plaintiffs sought an order from this Court that the defendant executor do transfer the estate in fee simple in remainder expectant upon the death of Leonard Colin Hamersley in Fairfield to Leonard Colin Hamersley absolutely. As a result of a series of interlocutory applications, to be described in more detail soon, the relief sought was substantially amended, additional parties were added and directions were given for the representation of other parties and interests actually or potentially affected by these proceedings.

12 After having appointed Mr Newton as his executor, making provisions entitling the executor to charge for professional services in the administration of the estate and to receive commission only out of the residuary estate the testator provided:

"I GIVE DEVISE AND BEQUEATH all of my farming lands in the Victoria land district of Western Australia to my great nephew LEONARD HAMERSLEY son of COLIN CHARLES HAMERSLEY and JUDITH HAMERSLEY during his lifetime together with the farming plant furniture and moveable equipment thereon and declare that the said LEONARD HAMERSLEY shall be liable to preserve the house and property of 'Fairfield' from waste and after the death of the said LEONARD HAMERSLEY to the then eldest living son of the said LEONARD HAMERSLEY in remainder absolutely.

THE REST AND RESIDUE of my estate after satisfaction of my just debts testamentary expenses the cost of having my body cremated and having my ashes distributed over my farmland near Walkaway aforesaid known as 'Fairfield' and any trustees commission payable to my Executor or Executors I GIVE DEVISE AND BEQUEATH to EDWARD LOCKE BROCKMAN of Walkaway DAVID HAMERSLEY BROCKMAN of 23 McNess Road Kalamunda JUANITA HAMERSLEY HINXMAN of Johnson Street Mt Helena and VERA HAMERSLEY HEINSEN of 92 Gregory Street Geraldton in equal shares as tenants in common."

13 The reference in the devise of Fairfield contained in this will to the entitlement to the remainder interest in the property after the death of Leonard Hamersley to "the then eldest living son of the said LEONARD HAMERSLEY" raises for consideration the proper choice of both the method and the time for identification of the person so nominated. Fortunately, Mr Leonard Hamersley and his two sons, Daryl and Robert all appear to enjoy good health but there can be no certainty that one son will outlive his father nor, if one does, which son that will be. No doubt the family hopes and expects that deaths, when they occur, will be in age order and that Daryl, as the elder son now living will succeed his father and enjoy the interest in remainder. However, this may not happen. Nor can the possibility, remote and unintended though it may be, that Mr Leonard Hamersley may yet have another son or sons one of whom may live to be the eldest son at the time of his death, be eliminated. Then there is the possibility, one hopes a remote one, that Mr Leonard Hamersley may outlive both Daryl and Robert and die without leaving a son surviving him. In that case there would be a failure to provide for the disposition of the estate in Fairfield in remainder under the specific devise in the will. In that eventuality the possibilities seem to be that the undisposed of remainder interest in Fairfield would form part of the residuary estate divisible equally between persons, yet to be identified, who are entitled to distribution under the estates of the Brockman, Hinxman and Heinsen cousins named in the residuary devise and bequest or, failing that, on a partial intestacy, to the persons entitled to distribution of Uncle Robert's estate under the provisions of the Administration Act 1903.

14 Following the series of amendments to the originating summons already mentioned, the final formulation of the relief sought by the plaintiffs is as follows:

"1.1 A declaration that Daryl Colin Hamersley, being the third named plaintiff, is the person entitled to the fee simple in remainder expectant upon the death of Leonard Colin Hamersley in the land described in certificate of title volume 507 folio 38A (Fairfield); or

1.2 alternatively, a declaration that Maxine Gladys Danielle Hamersley, Daryl Colin Hamersley, Kerry Marie Hamersley and Robert Malcolm Hamersley, being the second, third, fourth and fifth named plaintiffs, are the persons entitled to the fee simple in remainder expectant upon the death of Leonard Colin Hamersley, in the land [known as Fairfield] and

2. an order that the first defendant, Brian Rossiter Newton, as executor of the estate of the late Robert Malcolm Hamersley transfer the estate in fee simple in remainder expectant upon the death of Leonard Colin Hamersley in the land [known as Fairfield] to Leonard Colin Hamersley, being the first named plaintiff.

3. Alternatively, a declaration as to whether in the event that Leonard Colin Hamersley renounces his life interest in Fairfield the effect would be to pass an immediate interest in fee simple in Fairfield to Leonard Colin Hamersley's eldest son then living or whether instead the effect would be to pass the interest in Fairfield for the life of Leonard Colin Hamersley to Leonard Colin Hamersley's eldest living son, subject to the remainder taking effect as provided in the will.

4. Further and alternatively, a declaration as to whether in the event that Leonard Colin Hamersley were to die without leaving a son surviving, the interest in Fairfield in remainder would pass to the residuary beneficiaries named in the will who survive the testator or their successors, or whether instead the effect would be to pass the interest in Fairfield in remainder to the persons entitled to distribution of the estate of the late Robert Malcolm Hamersley upon an intestacy.

5. Such further orders as this honourable court deems fit."

15 In view of the possibility, already mentioned, that the interest in remainder to Fairfield, after the death of Leonard Colin Hamersley, might devolve upon a son as yet unborn I considered that it was necessary to give directions for such a potential interest to be represented in the proceedings. Similarly, because of the possibility that the successors to the estates of the Brockman, Hinxman and Heinsen cousins might, in one eventuality, succeed as residuary beneficiaries to an undistributed interest in remainder to Fairfield, I considered that it was also necessary to take steps to have those interests represented.

16 Accordingly, after directing that the originating summons be amended as sought I ordered, on 13 September 2004, that the Attorney General of Western Australia be joined as a second defendant in the proceedings and that the plaintiff should pay the costs of the Attorney General in the proceedings in any event. The role of the Attorney General in this respect is to represent, in the exercise of his parens patriae jurisdiction, the interests of any future unborn sons of Leonard Colin Hamersley in events which might happen - see Marion's Case, Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 281 and Minister for Health v AS & Anor [2004] WASC 286; (2004) WAR 517. I gratefully acknowledge the subsequent appearance of the Attorney General in this role and the assistance which he has provided by counsel in making submissions generally in this respect.

17 Further interlocutory directions were sought by the first defendant with regard to the potential need for representation of the interests of the Brockman, Hinxman and Heinsen cousins who are the named residuary beneficiaries and devisees. The evidence discloses that each of the named residuary beneficiaries has died and that great difficulty has been experienced in identifying the persons who are entitled in distribution under their several estates or, indeed, who are the descendants or representatives of those deceased residuary beneficiaries. In the result I ordered that, in the event that he signified his willingness to act in this capacity, Geoffrey John Brockman be joined as a party in these proceedings as a representative of those entitled to the residue of the estate of the late Robert Malcolm Hamersley. This appointment was made pursuant to RSC O 18 r 13 and was accompanied by a direction that Mr Newton, as first defendant and executor, should give notice of these proceedings in a form to be approved by the Court to so many of the following affected persons ("affected persons") as could be identified and located within the time available namely:

• the personal representatives of the estates of Edward Locke Brockman, David Hamersley Brockman, Juanita Hamersley Hinxman and Vera Hamersley Heinsen (the residuary beneficiaries); and

• the beneficiaries of any will of any of the residuary beneficiaries of which probate or administration has been granted.

• But if probate or administration has not been granted of the will of any of the residuary beneficiaries then, in each such case, notice be given to:

• any surviving spouse of that residuary beneficiary.

• any adult children of that residuary beneficiary.

I directed that such notice should inform the affected persons of:

a. the relief being sought by the plaintiffs in this action.

c. the fact that Geoffrey John Brockman had agreed to act as the representative of those entitled to the residue of the estate of the late Robert Malcolm Hamersley and had been duly joined as a party in that capacity and

d. notwithstanding his agreement and the joinder of Mr Geoffrey John Brockman, that any such affected person is entitled to seek to be heard personally or to be made a party to the action upon application to the court on his or her own behalf.

Other incidental orders and directions in relation to the mode of service and responses to such notices were contained in my order of 9 November.

18 Notwithstanding these steps it was not practicable to make, nor did I consider that the occasion warranted, efforts to identify and give notice of the proceedings to all or any of the persons who may be entitled to distribution of the estate of the deceased Robert Malcolm Hamersley in the event of a partial intestacy arising from a failure to make effective distribution of the estate in remainder expectant upon the termination of the life interest to Fairfield. Not only did the probability appear to be, from what was known of the family of Robert Malcolm Hamersley, that those entitled, or most of them, in the event of a partial intestacy would be persons already parties to these proceedings or be represented by the recent joinder of Mr Brockman, but it also appeared, at that stage, that it was unlikely that there would turn out to be a partial intestacy which would require the tracing of such parties. For reasons which I shall set out in detail later, the submissions at the hearing satisfied me that no such partial intestacy will occur. Therefore, the lack of formal identification and representation of parties entitled in the event of such a partial intestacy which has been made unavoidable because of the exigencies of this litigation cannot have any actual or potential adverse consequences.

19 I am pleased to record that Mr Geoffrey Brockman, at short notice, willingly accepted the role of representing the interests of the successors of the named residuary beneficiaries. He appeared by counsel in these proceedings whose submissions I acknowledge and so, by these means, I have been further assisted in addressing the issues which have arisen for decision.

Section 27 - Property Law Act 1969

20 The last preliminary matter which needs to be mentioned before turning to the issues is the apprehension by the plaintiffs on advice that the life interest of Fairfield in favour of Leonard Colin Hamersley with the remainder to his eldest son living at the time of his death, might, because of the provisions of s 27 of the Property Law Act, result in the disposition of the remainder taking effect in favour of the life tenant's widow and surviving children.

21 Section 27 of the Property Law Act provides as follows:

"27. Where in an instrument that comes into operation after the coming into operation of this Act a remainder is limited mediately or immediately to the heir or heirs of the body of a person to whom an estate for any life in the same property is expressly given, the estate of that person shall be an estate for that life with remainder to the persons who on the death of that person intestate would be beneficially entitled to his property and in the same shares."

22 The marginal note to this section is "Rule in Shelley's Case abolished". No counsel advanced any submission at the hearing that s 27 of the Property Law Act applied to or affected the devise in Uncle Robert's will of Fairfield whether in respect of the life estate granted to Leonard Hamersley or the remainder to one of his sons. In this respect counsel were plainly correct because the devise of Fairfield, including the devise of the remainder interest, is not limited in any way to the heir or to the heirs of the body of the life tenant or otherwise.

23 Had the grant to Leonard Hamersley been made to him and to his heirs or to him and to the heirs of his body whether in fee simple or fee tail (before estates tail were abolished in this State by s 23 of the Property Law Act 1969) then, by the operation of the rule in Shelley's Case [1579] EngR 149; (1581) 1 Co Rep 93b; 76 ER 206 the words "to the heirs" would have been treated as words of limitation and not of purchase so resulting in the ancestor taking a fee simple and with no interest been granted to the heirs. The learning on the rule in Shelley's Case is vast indeed: see Butt "Land Law" Law Book Co, 4th ed at [813] - [816]; Van Grutten v Foxwell [1897] AC 658 per Lord Macnaghten at 667 and per Lord Davey at 684; and Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31 at 44 - 47. The abolition of the rule in this State by s 27 of the Property Law Act means that where there is now a limitation in a grant to a life tenant to his heirs or to the heirs of his body, the estate granted will be to the tenant for life with the remainder to the persons who, on his death, would be beneficially entitled had the immediate grantee died intestate.

24 The devise in Fairfield in the will of the deceased is expressly to Leonard Colin Hamersley for his life with the remainder to his eldest son then living. As there is no grant of a remainder to the heirs or to the heirs of the body of Leonard Hamersley there is simply no occasion for the rule in Shelley's Case to have applied (had it not been abolished) or for s 27 to apply since its repeal. It also follows that there is no basis to apprehend that the effect of the devise of Fairfield by the will of the deceased will be for the remainder, expectant upon the death of Leonard Hamersley, to pass to the persons who would be entitled to participate in the distribution of his estate in the event of an intestacy - that is to his widow and children.

The Interest to an Estate in Fee Simple in Remainder in Fairfield

25 Having discarded the apprehension entertained by Leonard Hamersley and his family about the possible application of s 27 of the Property Law Act to this devise it is now possible to proceed to the more important and substantial question, namely the identification of the remainderman who will receive the fee simple to Fairfield upon the determination of the present life estate.

26 Plainly enough, Daryl Hamersley, as the elder son now living of Leonard Hamersley is regarded by the family as being the person expected to succeed to an estate in fee simple of Fairfield in the event that he survives his father. Equally, however, if Daryl should predecease his father but Robert should survive the life tenant then Robert would succeed to the remainder interest and obtain the fee simple. If neither son survives his father but, unexpectedly, the father leaves another son (a son as yet unborn) him surviving then the eldest of any unborn sons would then be the remainderman succeeding to the fee simple. And, further, if Leonard is not survived by any sons the question which arises is whether or not the interest in the remainder falls into residue for distribution of the fee simple interest between the successors to the Brockman, Hinxman and Heinsen's cousins' personal representatives or beneficiaries or whether the result is a partial intestacy so that the remainder interest in Fairfield is distributable among the persons, or their successors, entitled to distribution to the estate of Uncle Robert in the event of an intestacy.

27 These possibilities that the succession of Daryl Hamersley to the fee simple in Fairfield expectant upon the determination of the current life estate may not eventuate, and that the ultimate beneficiary of the fee simple expectant upon the remainder may go to one or some others has led to the submission that there is no presently vested interest in remainder created by the testamentary devise and that such an interest will not vest until the death of Leonard Hamersley and that his death will also be the earliest and only occasion when the class of persons who may be contingently entitled to the fee simple becomes identifiable. The submissions following this line then proceed to contend that, in such circumstances the present life tenant, Leonard Hamersley, has nothing but a life interest to dispose of and that if he were to renounce or surrender in favour of Daryl or any other person, the person so nominated could take nothing more than the unexpired portion of the life interest presently enjoyed by Leonard Hamersley which would last only for the duration of Leonard Hamersley's life at which point the identification of the remainderman would have to be made on the basis already described.

28 Of course, the passage of time will eventually ascertain whether or not Leonard Hamersley is survived by one or more sons and, if so, who is the eldest son at the date of death, so identifying the remainderman who would then become entitled to the estate in fee simple in Fairfield. Similarly, time will eventually reveal whether or not Leonard Hamersley may die without leaving any son. Should that happen the estate in fee simple in remainder would accrue and devolve, on one view, upon the residuary beneficiaries of Uncle Robert's will or upon their successors or, on the other view, on the persons entitled to distribution in the event of an intestacy of Uncle Robert.

29 The submissions for the second and third defendants stress the possibility that because the present expectancy which Daryl Hamersley has to succeed to the fee simple in Fairfield upon his father's death, could be defeated by any of the eventualities described, it would be to the potential detriment of any of the other persons who might succeed to the estate in fee simple in Fairfield expectant upon Leonard Hamersley's death, if by renunciation or surrender by Leonard Hamersley, as the present life tenant, or by any other means, the life estate was to be terminated before Leonard's death. This would cause the succession of the estate in fee simple for Daryl to be accelerated and the possibility of those other eventualities would be eliminated.

30 To ascertain the true nature of the interest conferred by the will requires a proper construction of the devise of Fairfield in the context of the will as a whole. By this process it becomes necessary to ascertain whether this is one of those occasions where, by disclaimer, renunciation or surrender by a life tenant there may be an acceleration of the remainder in favour of the eldest son living at the date of the surrender, renunciation or disclaimer.

31 The originating summons seeks, first, a declaration to determine who is the person entitled to the estate in fee simple in remainder of Fairfield expectant upon the death of Leonard Colin Hamersley. In effect this declaration requires a determination of the issue arising from the plaintiff's apprehensions that s 27 of the Property Law Act may, in the circumstances, result in the remainder interest passing to the persons entitled to participate in distribution in the case of any intestacy by Leonard Colin Hamersley. It will not, however, resolve the more contentious issue of whether or not the remainder interest has vested or remains contingent or whether it may be accelerated by renunciation or surrender by the present life tenant.

32 Second, the originating summons seeks an order requiring the defendant executor to transfer an estate in fee simple to Fairfield to the existing life tenant Leonard Colin Hamersley. No basis was suggested for the existence of any power enabling the court to vary, by such an order for transfer, existing property rights whatever they may in fact be. I am satisfied that this simple claim for relief simply misconceives the power and role of the court. No counsel pressed for any such order to be made.

33 The third and fourth claims for relief, introduced in the originating summons by amendment, sought declarations concerning the future entitlement to interests in Fairfield in the light of future events.

34 The most immediate and presently relevant future postulation is that Leonard Colin Hamersley would soon renounce his life interest in Fairfield giving rise to the issue of whether or not an immediate interest in fee simple would pass to his eldest son living at the time of the renunciation or whether the effect would only be to pass to the eldest son living at the date of the renunciation the unexpired portion of the life interest still terminable at the death of Leonard Colin Hamersley. In the latter case the new life tenant would take the fee simple in remainder as provided in the will only in the event that he were still the eldest son of Leonard Colin Hamersley living at the date of the latter's eventual death.

35 The second postulated future event, for the declarations sought by par 4 of the originating summons, is the situation which might exist if Leonard Colin Hamersley were to die without leaving any surviving son. The question posed, is whether, in that eventuality, the remainder interest in Fairfield would pass to the residuary beneficiaries named in the will (the Brockman, Hinxman and Heinsen cousins) who survived the testator or their successors or whether, instead, the effect would be to pass the interest in Fairfield in remainder to the persons entitled to distribution in the estate of Uncle Robert upon an intestacy.

36 The statutory powers invoked to support the relief claimed by the plaintiffs are identified in the heading to the proceedings. The first reference is to s 19 of the Administration Act 1903 which confers on the court the power to effect partition of any real estate of a deceased person if advantageous to the parties interested. This power was not relied upon by any of the submissions of counsel and no party sought any order for partition. I should therefore simply pass over this reference without observing anything more than it is possible that, at one stage, it was mistakenly thought capable of supporting an order, as sought in par 2 of the originating summons, to require the executor to transfer, other than in accordance with the terms of the will, an interest in Fairfield to one or other of the parties.

37 The plaintiffs also invoked the powers conferred on the court by s 78, s 89 and s 90 of the Trustees Act 1962. Section 78 of that Act enables the Court, in certain circumstances, to make a vesting order in respect of property held on trust but again no counsel submitted that any such order could or should be made in the present circumstances and it is unnecessary to consider that further. Section 89 of the Trustees Act empowers the court, in certain circumstances, to confer additional powers on a trustee but again no such relief was sought by any party. Section 90 of the Act confers on the court the power to vary or revoke certain trusts and, while it is possible that this power would enable the court to entertain an application to vary the terms of the will trusts of the estate of Uncle Robert in respect to the terms upon which Fairfield is presently held, again no party sought any such variation of existing interests. Rather the claims of the parties have been to ascertain precisely the nature of the existing interests and the entitlements under them in the event of the future eventualities particularly mentioned, namely a purported surrender of his existing life estate in Fairfield by Leonard Hamersley, and, secondly, the future possibility that Leonard Hamersley might die without leaving any surviving sons.

38 The plaintiffs also invoked the power of the court under RSC O 58 r 2 as persons actually or potentially interested under the will of the deceased for the determination of questions affecting the rights or interests of their claims and other questions arising in the administration of the estate. There is no doubt that the court has power under this rule which reflects the more general power of the court available under s 25(6) of the Supreme Court Act 1935. The amplitude, availability and efficacy of this power has been much discussed and more frequently employed; Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421; Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297 per Barwick CJ at 305 - see generally Meagher Gummow and Lehane's "Equity Doctrines and Remedies" 4th ed, [19-060] - [19-100].

39 Nevertheless declaratory relief remains discretionary and one of the factors which may incline a court, in the exercise of its discretion, to withhold relief sometimes is that the supposed issue in respect of which the declaration is sought is hypothetical or only theoretical - Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, or put another way, that there is no present justiciable controversy in existence which requires adjudication by the court or that the supposed facts giving rise to the question have not happened and may never happen - Sanderson Computers Pty Ltd v Urica Liberty Systems BV (1998) 44 NSWLR 73. Nevertheless, these considerations do not preclude the court from making declarations of right even in respect of theoretical or future potential disputes if there is a genuine matter of concern which requires resolution for persons to consider and determine their present or potential rights in a real and pressing sense. In Church Property Trustees, Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394 Dixon CJ said, at 400 - 401:

"In any case it is still the general prima facie rule that questions about future interests that will arise in events that have not yet happened and need not necessarily occur are not decided unless beneficiaries are hampered in their practical affairs in some significant respect by the uncertainty or some other positive ground exists for an anticipatory decree or order."

40 It is not difficult to see that real questions of concern have arisen in the present case among members of the Hamersley families concerning the future ownership of Fairfield. If the position remains as it is at present there is the possibility, however remote it may be, that neither Daryl nor Robert may outlive their father and that Leonard Hamersley may die leaving no surviving son so that the entitlement to the fee simple interest in Fairfield expectant upon the remainder of the present life interest would pass out of this line of the family, notwithstanding that Daryl and his wife presently have children who, according to farming tradition, might be hoped to succeed eventually to Fairfield. Clearly, therefore, if confirmation that surrender of the existing life estate by Leonard Hamersley would be efficacious in accelerating the remainderman in securing an estate in fee simple could be obtained that would naturally bring certainty for Leonard and his family and would accord with the wishes of the life tenant. On a practical level, also, acceleration of the present life estate in Fairfield to an estate in fee simple would be of considerable advantage because it would allow, that land to be offered as security to lending institutions by mortgage because at present this cannot be done due to the disinclination of lenders to advance moneys on the uncertain security of a life estate in Fairfield.

41 This potentiality for Fairfield to pass out of the line of Leonard Hamersley's family, provides a very potent incentive for the life tenant to surrender or terminate the existing life estate if, by doing so, that would secure certainty for the future and produce an immediate estate in fee simple in favour of his son Daryl Hamersley. Inescapably, if such a surrender or determination of the existing life estate were to prove effective to secure this end the future possibility that Fairfield might pass out of the line of the family if Leonard Hamersley should die without sons, would disappear and the chance of succeeding to Fairfield, small though it may be for the residuary beneficiaries or their successors, would also go. While it might be said these eventualities will be determined by the passage of time, it may take many years for that to occur, years during which much work and investment on Fairfield would be required, and the limited span of years when the vigour and efforts of Leonard, and the youth of his sons can be deployed to farming activities. Naturally enough investments of large scale and choices concerning the destinies of individual members of the family are all involved in these questions and important practical decisions about how Fairfield is to be run and by whom will have to be made. I have no doubt, therefore, that this is an occasion in which it is both right and necessary that the court should determine the issues which have been raised and make declarations of right accordingly which will enable the members of the families concerned to have as much certainty about their existing and future rights as can be possible and, as a consequence, be able to make important decisions about the use of the property and their own future actions.

42 For examples of such declarations being made in respect of a future question in analogous circumstances - see Re Syme Deceased [1980] VicRp 13; [1980] VR 109, Re Hartigan [1989] 2 Qd R 401 at 411 and Collins v Equity Trustees Executors and Agency Co Ltd [1997] 2 VR 166 at 169.

Residuary Devise of Fairfield or Partial Intestacy?

43 This is a convenient point to address the issue of whether or not, in the event of Leonard Hamersley dying during the continuation of his life estate in Fairfield, but without any son surviving him, the interest in fee simple which would then arise would devolve upon the residuary beneficiaries named in the will, or their successors, or would result in a partial intestacy and distribution in accordance with the provisions of the Administration Act 1903. Not only does the resolution of this issue have a bearing upon the identification of the person or persons potentially interested in the ultimate estate in fee simple in Fairfield but it will also assist in determining other issues in the proceedings by revealing, if only to some extent, the dispositive intentions of the testator. These may have a bearing upon the major issue of whether or not surrender by Leonard of his life estate might result in an acceleration of the succession by Daryl to the estate in fee simple.

44 The will of the testator does not make any express provision for the disposition of Fairfield in the event that Leonard Hamersley should die without leaving any surviving son. Two questions therefore arise. The first is whether the absence of any express gift over of Fairfield in this eventuality is indicative of a testamentary intention that the eldest living son of Leonard should, from the date of the testator's death, take a vested interest in the remainder notwithstanding that it is subject to later defeasance, rather than merely a contingent interest which would not vest, if at all, until the date of the life tenant's death. The second, but separate question is whether the residuary devise and bequest in favour of the Brockman, Hinxman and Heinsen interests is effective to pass the fee simple in remainder to Fairfield to that line of the family should Leonard Hamersley die without leaving any surviving son or whether that residuary devise and bequest should be treated as being confined to that property owned by the deceased other than Fairfield and the farming plant furniture and moveable equipment thereon at the date of the testator's death.

45 While it might be possible to construe the residuary devise and bequest as dealing with all the testator's property excluding Fairfield and the farming plant, furniture and equipment that is not a construction which I consider should be adopted. There is nothing to suggest that when making his will the testator had in mind the disposition of any real property other than Fairfield yet the language of the residuary disposition expressly employs the word "devise" indicating an intention that the residuary disposition would, or could, pass an interest to any real property held by the testator at his death which did not pass under the earlier specific devise of Fairfield. The use of this language is a definite indication that the residuary disposition was intended to be capable of disposing of real property, not otherwise disposed of, and, therefore, to have the effect of passing to the residuary beneficiaries any interest in Fairfield which was not, or not wholly, disposed of by the earlier specific devise of that property.

46 In addition there is the well established rule that in the case of rival constructions of a will between one which would lead to an intestacy and the other which would not, the court will favour the construction which will avoid an intestacy: Fell v Fell [1922] HCA 55; (1922) 31 CLR 268; Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799. While the strength of this presumption will vary according to the circumstances the presumption tends to be stronger in relation to any residuary gift, such as is under consideration in this case - Byrne v Dunne [1910] HCA 75; (1910) 11 CLR 637at 664. This is a manifestation of the old presumption that when a testator makes a will he or she should be presumed to have intended to dispose of the whole estate. This is in accordance with the general principle, that unless otherwise provided, any specific gift or devise which lapses or fails will fall into the general residue. This is given statutory force in this State by s 26(b) of the Wills Act 1970. As a consequence a residuary devise and bequest which provides for a gift of land "not hereinbefore devised" - Green v Dunn [1855] EngR 238; (1855) 20 Beav 6, or of property "not - - disposed of" Re Duke of Wellington, Glentanar v Wellington [1947] Ch 506 at 522 - 523 (affirmed [1948] 1 Ch 118), will carry the land or property ineffectively disposed of. This residuary disposition expressly refers to "the rest and residue of my estate" which must be taken to embrace property not otherwise disposed of.

47 Accordingly, I conclude that in the event that there is no son of Leonard Colin Hamersley surviving at the time of the determination of the life interest in Fairfield granted by the will, that the interest in remainder would then fall into residue and be distributable among the residuary beneficiaries who survive the testator or their present successors. As previously noted this conclusion resolves the earlier concern, raised at pre-trial interlocutory hearings, that there may be a need for the appointment of some person to represent the interests of those entitled to distribution under the estate of the deceased in the event of an intestacy.

48 Where under an instrument a gift is made which limits the nature or duration of the interest of the recipient and provides for subsequent interests to pass to another or other recipients it may become necessary to determine the nature of both the initial or any subsequent interests, that is to say to determine whether either is vested or contingent. The resolution of that inquiry will usually also determine whether or not a subsequent interest may be accelerated. The cause of the potential acceleration of the subsequent interest may be due to one of several factors but it is clear that in certain instances a subsequent interest may be accelerated. A description of the nature and operation of this doctrine is to be found in Halsburys Laws of England 4th Ed Reissue Vol 50 [419] which, omitting numerous references, provides:

"Acceleration of subsequent interests

The effect of failure of a prior life interest or other particular interest through the donee of that interest being dead or prevented by law from taking the gift, for example owing to the attestation of the will by him or his spouse, or through revocation by codicil, disclaimer, forfeiture or lapse is ordinarily to accelerate the subsequent interests which are limited to take effect on the regular determination of that prior interest, but the will may expressly or impliedly indicate a contrary intention. Acceleration may take place even though the effect may be to alter the class of persons designated to take by accelerating the time for ascertaining the class. This will, however, be so only where the terms of the will are consistent with an intention to distribute at a moment which may be anterior to the birth of all the members of the class. Where the trusts following the prior interest are not absolutely vested remainders but are vested subject to being divested, the court will not misconstrue the will in order to give effect to the doctrine of acceleration; and the effect of a disclaimer is that the residuary estate is held on trust for the remaindermen subject to the defeasance clause. The court construes gifts of subsequent interests as intended to take effect on the failure or determination of the prior interest in any manner. A failure of a prior gift does not, however, accelerate a subsequent executory limitation not taking effect merely on the determination of a prior interest; and subsequent gifts cannot be accelerated where the persons who are to take under them are not in existence or their interests are contingent."

49 In Tompkins v Simmons [1931] HCA 8; (1930) 44 CLR 546 the issue for determination was whether or not the revocation, by a subsequent codicil, of a life interest in a share of a particular fund granted to the testator's daughter, with a remainder to the children of that daughter who attained the age of 21 years or, being a daughter married before that age, effected an acceleration of the remainder interest in favour of the grandchildren, or left that interest postponed for the duration of the life of the daughter whose gift had been revoked producing a partial intestacy in respect of the income of that part of the fund for the duration of her life. The decision at first instance by Crisp J, unchallenged on the appeal, was that the revocation by the codicil of the life estate in favour of the mother (one of the children of the deceased) while revoking the gift of the life interest did not revoke the gift in remainder of that interest to her children. This left as the issue for determination on the appeal whether or not the determination of the life interest in favour of the mother accelerated the interest of the children and grandchildren to the income of the fund or left that postponed for the duration of the mother's life resulting in an intestacy. The court decided that the remainder interest in favour of the testator's grandchildren had become accelerated (Gavan Duffy CJ, Dixon Evatt and McTiernan JJ; Starke J dissenting). Dixon J, with whom the other Justices in the majority agreed, said, at 558 - 559:

"But the destruction of such an interest for life does not cause an intestacy in respect of the interest, unless it is clear that the interest limited in succession to the life interest was to take effect only upon the specified event of the death of the life tenant and was not to fall into possession on the sooner determination of the life interest. In a limitation to a donee for life and after his death upon trust for his children, or some other donee, the reference to his death whether expressed by the words 'upon', or 'after his death,' or 'from and after his decease,' or otherwise, may have one of two imports. It may mean that the second donee shall take nothing until the death of the first, or it may merely show the order of the limitations through which the estate or interest is to pass. It is well established that, prima facie, these words are to be understood as denoting the order of succession of limitations. (See per P R Turner L J, Lainson v Lainson (1854) 5 De G M & G, at 756; 43 E R at 1064).

In this case the limitation of the corpus of the trust fund is introduced by the words 'and immediately after the deceased if any one of my sons or daughters'. There is nothing to rebut the prima facie rule that these words simply mark out the order of succession, and create an interest expectant upon the determination of the prior interest by whatever means that determination may be brought about."

50 The principle is also described in Jull v Jacobs (1876) LR 3 Ch D 703 and in Re Young's Settlement Trust [1959] 1 WLR 457 per Harman J at 462. In Re Hodge Deceased, Midland Bank Executor and Trustee Company Ltd v Morrison [1943] 2 All ER 304 at 305 Simonds J said of a case involving a disclaimer of a life estate to certain annuities:

"The principle of acceleration was first established in regard to remainders in real estate, and probably the origin is to be found in the technicalities of real property law. However that may be, the principle became extended to interests in personalty - - - I see no reason why, once it has been extended from real to personal estate, it should not be applied in the case of any interest whether a partial interest such as an annuity or a residuary interest. The principle is exactly the same. You find that the postponement of a particular interest is merely in order that a prior interest may be enjoyed. That prior interest is determined, whether by the death of a prior beneficiary or for any other reason, the reason for postponement goes and there is no reason, therefore, why there should not be acceleration."

Re Syme Deceased (supra) is a case with some close similarities to the present in that it involved the determination of whether or not a gift in remainder could be accelerated by simultaneous surrenders of antecedent interests by living life tenants. The answer given by Lush J was that certain of the deferred interests could be accelerated by surrender of the antecedent life interests but that others could not because of a contrary intention in respect of them displayed by the will that they should not be enjoyed before the occurrence of the specified event. In describing the operation of the principle Lush J said, at 116:

"The cases show that acceleration is not excluded by words defining the time of distribution by reference to the natural ending of a particular state, for instance, a direction for distribution upon the death of the life tenant (see Lainson v Lainson [1854] EngR 872; (1954) 5 De G M&G 754; 43 ER 1063 and Jull v Jacobs (1876) 3 Ch D 703) or by a direction that distribution is to be made among persons then living (see Re Johnson (1893) 68 LT (NS) 20 and Re Crothers' Trusts [1915] 1 IR 53). As to the latter point, I have not overlooked Re Townsend (1886) 34 Ch D 357 or Re Taylor [1957] 1 WLR 1043, nor the indications in them that a contingent gift cannot be accelerated. To extend that proposition so as to make acceleration impossible if there is a contingency of survivorship would, I think, be contrary to the weight of authority and to the very concept of acceleration (see Re Harker's Wool Trusts [1969] 1 WLR 1124 at 1128). However, in Wyndham v Darby (1896) 17 NSWR 272 (E) at 277-8 and in Re Harker (supra) at 1128 a distinction is drawn between gifts on the death of a life tenant to the children of the life tenant and gifts in similar circumstances to the children of another. The quotation from Jull v Jacobs [per Malins VC at (1876) 3 Ch D 709], suggests that Malins VC may not have regarded the distinction as significant. It is said that in the former case the testator must have intended all possible members of the class to take. In the example given, this may be so, but as soon as a contingency of survivorship is introduced the testator can have intended no more than that every member should have a chance to take; some may be omitted if they died too soon, and it is not a far cry from this to omitting some because they are born too late. It is probably safest to ask whether the individual will or other instrument discloses that it was an essential part of the testator's intention that all possible members of the class should have this chance."

Another case, similar to the present is Collins v Equity Trustees Executors and Agency Co Ltd (supra). It also shows that acceleration, where it occurs because of voluntary surrender of a prior interest by a living life tenant, does not postpone the remainder until the death of the life tenant but terminates the prior interest, entirely leaving the remainder to take effect immediately in possession. In Collins (supra), as in the present case, the life tenant had been in enjoyment of her life interest for some time before the question of termination of the life interest with a view to accelerating the remainder interest arose. Batt J explained that this was not a material distinction when coming to deal with the possibility of acceleration of the remainder interest. At 168 and 169 his Honour said:

"As the first plaintiff has entered upon the enjoyment of her life interest a surrender rather than a disclaimer is, as is apparent from what I have stated already, proposed. ...

Whilst the relevant statements of principle speak in terms of disclaimer, the cases show that acceleration may be brought about by surrender: Re Penton's Settlements, Humphreys v Birch-Reynardson [1968] 1 WLR 248 and Re Harker's will Trusts, Keen v Harker [1969] 1 WLR 1124 and 1127 (a release, surrender and assignment unto trustees to the intent that the interests cease merge and be extinguished in the reversionary or appointed interests); Re Syme [1980] VicRp 13; [1980] VR 109 ('if the proposed surrenders are made in proper form', counsel at 114 having relied on surrenders or releases 'provided they are not drafted as assignments of those interests'); and Re Hartigan [1989] 2 Qd. R. 401 (surrender); cf Re Young's Settlement Trusts, Royal Exchange Assurance v Taylor-Young [1959] 1 WLR 457 at 463."

This point is of some significance in the present case because no draft deed of surrender of his life interest by Leonard Colin Hamersley has been prepared or proffered and the question in the originating summons (question 3) simply poses the question "whether in the event that Leonard Colin Hamersley renounces his life interest in Fairfield" without specifying the mode or form of renunciation. As the authorities cited by Batt J demonstrate the proposed renunciation would need to be by deed of surrender and not by a deed of assignment. A mere assignment would, obviously, simply assign the existing life interest from the assignor to the assignee without terminating it leaving the assignee the recipient of an estate in the land limited to the duration of the assignor's life. I shall proceed on the footing that what is proposed is a formal surrender in effective form but, without evidence of the nature or form of such a surrender, nothing in these reasons or in the declarations to be made by the Court should be regarded as an endorsement or approval of the particular terms of any deed of surrender or other instrument which might eventually be executed if the plaintiffs proceed as they evidently propose.

51 It is sufficient only to mention a few more of the many cases which have recognised and endorsed the principle of acceleration of remainder or subsequent interests in the event of early termination of a preceding interest such as the life estate in favour of the first plaintiff in the present case. The principle and its application were recognised in Re Hodge Deceased (supra) at 305; Jull v Jacobs (supra); In Re Young's Settlement Trust (supra) at 462; Re Flower's Settlement Trust [1957] 1 All ER 462 at 465; In Re Crothers' Trust [1915] 1 Ch 53 at 57; Re Syme Deceased (supra) at 116; and Re Penton's Settlements [1968] 1 All ER 36 at 47.

52 Most formulations of the rule relating to the circumstances in which a subsequent estate may be accelerated emphasise that this cannot occur if the subsequent estate is merely contingent because of the possibility that the contingency upon which it depends may not eventuate. In the present case this principle is relied upon by counsel for the third defendants, and it is also raised by counsel for the Attorney General. This is because of the possibility that Daryl Hamersley might not survive his father, and would not, therefore, answer the description of being the father's "then eldest son living - - - after the death of the said Leonard Hamersley" and that acceleration of the life interest by surrender in favour of Daryl now would avoid the need to satisfy the contingency that one of the life tenant's two sons, or some other as yet unborn son, would be living at the date of his death. Avoidance of that "requirement" would, in the submissions of the third defendant, mean that the possibility that Fairfield might fall into residue and thus eventually devolve upon the Brockman, Hinxman and Heinsen interests would be defeated. It must, of course, be acknowledged that an acceleration such as proposed would have this effect. The question remains whether or not the possibility that, by not surviving his father, Daryl Hamersley may not succeed to a fee simple interest in Fairfield means that the gift in his favour is contingent, as submitted on behalf of the third defendant or whether it is, as the plaintiffs submit it has been since the death of Uncle Robert, vested in interest (but not in possession) remaining subject to divestment if Daryl should die before the termination of the life interest (either by reason of the death of his father or by an effective termination of that life interest which produces an acceleration of the interest in remainder).

53 The submissions from all the parties proceeded on the footing that if the gift of the remainder interest in the fee simple was merely contingent, that is not vested subject to divestment, then the remainder interest could not be accelerated as proposed by the plaintiffs. I shall, accordingly, proceed upon that basis which is doubtless orthodox and widely supported but I should, nevertheless, mention that there is some authority for the view that in certain instances even the enjoyment of a contingent interest may be accelerated - see per Lush J in Re Syme (supra) at 116 and the other cases examined by Batt J in Collins v Equity Trustees (supra) at 171 - 172.

54 Ultimately, the question is one of ascertaining the intent of the testator as expressed in the will and the entire context needs to be considered in order to ascertain whether or not Uncle Robert should be regarded as having intended that if Leonard Hamersley, having taken the life interest in Fairfield, later attempted to surrender or terminate that life interest in favour of his eldest son living at the time, that eldest son, who would have taken the fee simple in remainder if he survived his father, could then take no more than the life interest in favour of his father in that eventuality and would be subject to divestment of it should he still not survive his father.

55 The plaintiffs point to many considerations bearing on the position and tradition of the Hamersley family which suggest that it is, to say the least, unlikely that the testator would ever have had such an intention. First, they point to a long tradition from the past, perhaps less strong today, in farming families that the land should be passed down from father to eldest son and, in the absence of sons to the nearest male next in line. Second, the plaintiffs submit that by providing in his will that after cremation his ashes should be scattered over Fairfield, Uncle Robert was revealing his expectations that Fairfield would remain in the family indefinitely. The same might be said of the absence of an express gift over of Fairfield in the event that no son of Leonard survived him. I must say that I consider these factors to be powerful persuasive considerations indicating the probability of an intention by the testator that if and when his great-nephew Leonard Hamersley no longer enjoyed his life interest in Fairfield, whether by reason of death or any earlier intervening circumstance such as choice, or perhaps incapacity resulting from illness, the property should then devolve upon his eldest son living at that time. By this choice Fairfield would continue to be farmed by another generation of the Hamersley family who might be expected to regard the land with much the same long term view as Uncle Robert himself evidently did. I do not consider that it is too much to say that the personal attitude which the will reflects is that Uncle Robert might be said, to adapt the words of Dame Mary Gilmore, to have intended that for as long as possible at Fairfield it should only be a Hamersley who would gather the harvest and sit on the stockyard rail. These considerations however, must only be regarded as indicative because it is the words of the testament itself which must be applied.

56 This brings me to the point where it is necessary to consider the nature of a vested, as opposed to a contingent interest and to attend to those rules of construction which have been established for determining whether a gift, which at first glance might thought to be contingent, should nevertheless be regarded as effecting a vested interest subject to later divestment. Where there is any doubt about the time when a gift shall vest there is a presumption that the testator intended the gift to be vested, subject to being divested, rather than remain in suspense: Hickling v Fair [1899] AC 15 at 27 or, in other words, a presumption in favour of early vesting. Among the particular applications of this principle is the rule in Boraston's Case [1587] EngR 3; (1587) 3 Co Rep 16a, that even if expressed to take effect on a contingent event, a future interest may be construed to be a vested interest, taking effect in its natural order on the determination of the previous interest. A further application is the decision in Phipps v Ackers (1842) 9 CL & Fin 583; 8 ER 539 where it was decided that where the gift is taken by words which, although in the form of a condition, merely denote that the gift is to come into possession on the failure or at the determination of prior interests, this does not as a general rule form a condition precedent to vesting. As said by Tindal CJ in Phipps v Ackers:

"The happening of the event in such a case no more imports a condition precedent than any other words indicating that a remainderman is not to take until after the determination of the particular estate."

See also Maddison v Chapman [1858] EngR 962; (1858) 4 K & J 709 per Wood VC at 719; [1858] EngR 962; (1858) 70 ER 294.

57 These and other authorities were considered very extensively by Batt J in Collins v Equity Trustees (supra) at 169 - 170 leading his Honour to the conclusion in that case that the gift of the fee simple interest in remainder after a life interest, but subject to a subsequent gift over, created a vested interest which could be accelerated by the surrender of the interest held by the life tenant. In Collins' case (supra) however, there was an express gift over to third parties in the event that the gift in remainder after the initial life interest failed. Batt J referred to Theobald on Wills 15th ed, page 580 and other writings and authorities which explained that the rule in Phipps v Ackers (supra) only applies if there is an express gift over after the interest in remainder which spells out the conditions on which it will take place and includes amongst those conditions the counterparts (that are not necessarily identical counterparts) of the conditions applicable to the prior gift. The absence of such a gift over would leave the apparently contingent interest remaining contingent. It is necessary, therefore, to consider these principles in the light of the present case where there is no express gift over in this will of the interest in remainder following the life interest to Leonard Hamersley.

58 For reasons which I have earlier described I have already concluded that in this will, there is a residuary disposition which, if the gift in remainder to the eldest son of Leonard Hamersley fails, would have the effect of passing the fee simple interest expectant upon the termination of that life interest to the residuary beneficiaries. In the context, I consider that this should be taken as "merely showing the order of limitations through which the estate or interest is to pass" (Lainson v Lainson [1854] EngR 872; (1854) De G M & G 754; 43 ER 1063). It has been said that in such circumstances, in order that a gift in such terms may be vested, the condition on which the gift is dependent must involve no incident but such as is essential to the failure or determination of the interests previously limited (Madison v Chapman (supra) and M'Kay v M'Kay [1901] 1 IR 109 at 120) and must be equivalent to "subject to the interests previously given" - Madison v Chapman (supra) - see generally Halsburys Laws of England 4th Ed Reissue Vol 50 [651] - [654].

59 There are also submissions to the effect that the gift of the fee simple in remainder in Fairfield to "the then eldest son of Leonard Hamersley - - - after the death of the said Leonard Hamersley" constitutes a class gift so that the individual beneficiary will not be ascertainable before the class (sons of Leonard Hamersley) closes and that this also imports a contingency in the gift of the remainder. The plaintiffs respond by the submission that this is not a gift to a class of beneficiaries but, rather a gift to an individual who will be identified at the time of the cessation of the earlier life interest whenever that may be. I accept the plaintiffs' submission that this is not an occasion for the application of the class closing rule known as the rule in Andrews v Partington [1791] EngR 1535; (1791) 3 Bro CC 401; 29 ER 610 not only because it is not a class gift being to one child only, but also because it is a gift intended to take effect at the time of the termination of the prior life interest (whenever that may be) and at that point it will identify the life tenant's eldest son who will take an interest which is then no longer capable of being divested - see generally per Goff J in Re Harker's Will Trusts [1969] 3 All ER 1, 4 - 5. Even if this were not so, and the gift of Fairfield in remainder should instead be regarded as a species of class gift, the class would close at the expiration of or sooner determination of the life interest which, on the present hypothesis would take place upon the effective surrender by Leonard Hamersley of his present life interest - Bassett v Bassett [2003] NSWSC 691; (2003) 58 NSWLR 258 per Windeyer J at 266; Windham v Darby (1896) LR (NSW) 272 and Jull v Jacobs (supra). It has long been accepted that acceleration may occur even though the effect may be to alter the class of persons designated to take by accelerating the time for ascertaining the class, see: Re Davies; Davies v Mackintosh [1957] 3 All ER 52 at 54 and Re Kebty - Fletcher's Will Trust, Public Trustee v Swan and Snowden [1969] 1 Ch 339 at 344 as explained in Re Harker's Will Trusts (supra).

60 Counsel for the third defendants submitted that the gift of the remainder in Fairfield to the eldest son of Leonard living at the latter's death created only a contingent interest in Fairfield for Daryl Hamersley (and by necessary implication for Robert Hamersley) and that the decision in Hoysted v Federal Commissioner of Taxation [1920] HCA 29; (1920) 27 CLR 400 per Knox CJ and Starke J at 408 - 409 and per Isaacs J (dissenting) at 420 was authority for the proposition that a gift to A upon A achieving a certain age, or after the expiration of a fixed period of years, until A had satisfied that criterion, constituted no more than a contingent gift - see also In Re Astor; Astor v Astor [1922] 1 Ch 364. There is no doubt that the learned Justices in the first of the three Hoysted appeals did refer to the dispositions under Mr Campbell's will as being contingent interests but the decision was to the effect that each of the six surviving "contingent beneficiaries" was a joint owner in the land comprising the estate of the deceased and so was eligible for the special deduction available for joint owners under the Federal land tax legislation in circumstances where the Federal Commissioner of Taxation had disallowed those claimed deductions. The classification of the six surviving children of the deceased as joint owners in the estate land being administered by the trustees for 21 years before eventual distribution between all surviving children, or the deceased's grandchildren of deceased parents, was confirmed in the two subsequent Hoysted appeals to the High Court and to the Privy Council respectively - Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 and Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290. No issue arose in any of those three cases about whether or not the testamentary gift of all the estate property including the land to the trustee, to be run as a business for 21 years and the ensuing profits to be distributed equally between the children until the expiration of the 21 year period when the estate assets were to be sold and the proceeds distributed equally between the deceased's children was a gift which was capable of acceleration or whether the interests which the beneficiaries took were vested but subject to divestment or otherwise. However, the decision in each of the three Hoysted appeals unquestionably accepted that the surviving children of Mr Campbell were, within the meaning of the Federal land tax legislation, joint owners of the lands which were being assessed to land tax and as such were entitled each to a deduction of £5,000 available under that legislation for joint owners. This conclusion demonstrates that those beneficiaries had an actual interest in the land and that this was recognised by Knox CJ and Starke J at 409. Isaacs J (in dissent) refers to the children's interest in the land as being "not a legal interest but an equitable interest" (at 419). The description of the Campbell children's interests in their late father's lands as being contingent in this litigation must be read in that context and in the light of the decision which concluded that they did hold an actual interest or estate in the land so rendering them entitled to the deduction claimed on their behalf by the trustee.

61 There appears to be no discussion in the reports of these cases of any question of whether or not the children held vested interests which were subject to divestment if any one of them did not survive the 21 years as opposed to having a merely contingent interest which created no present estate or interest in the land of any kind. The absence of any such issue in the Hoysted litigation and the actual decisions that each of the children at all material times held an interest in the estate lands was sufficient to entitle them to the deduction claimed can only be treated, in my respectful view, as meaning that the term "contingent interests" of the children used by their Honours was not in any way intended to imply that no vested but postponed interest, nor a vested interest subject to divestment, was held by any one of them. In short, Hoysted's case did not address the issues which have arisen in this present litigation and does not, despite some appearances, support the submission relied on by the third defendant.

62 Then there are the cases of In Re Astor; Astor v Astor (supra); Re Flower's Settlement Trust (supra); Re Mallinson Consolidated Trusts; Mallinson & Ors v Cooley [1974] 2 All ER 530; In Re Townsend's Estate; Townsend v Townsend (1886) 34 Ch D 357 and In Re Francis; Francis v Francis [1905] 2 Ch D 295 which have held, in the particular circumstances of each case, that generally speaking a gift "to A when he shall attain the age of 25 years" without more, or a gift to "such one of the testator's sons who surviving him shall first attain the age of 21" are contingent and cannot be accelerated, unless the particular contingency has occurred or, for other reasons, can be eliminated as a possibility. By contrast, findings that the interest under a conditional gift had become vested but remained subject to defeasance, were made in Re Taylor (deceased) Lloyds Bank Ltd v Jones [1957] 3 All ER 56; Re Howes (deceased); Quinton v Howes [1971] 2 NSWLR 387 at 407 - 408; and Kotsar v Shattock [1981] VicRp 2; [1981] VR 13. So much depends on the terms of the particular wills or other instruments making those gifts that it is unproductive to attempt close comparisons or differentiations of the individual cases. However, it is by no means difficult to see why, a gift conditional upon one or more of the donees attaining a particular age, where there is no prior limited gift (as in Re Astor (supra)), should be regarded as imposing a condition precedent upon the gift leaving it contingent unless that event happens. Gifts, such as the remainder in this case, left on the basis that they will go to one of the several children to be identified when the life tenant dies, can more readily be seen as gifts where the limitation is restricted to the protection of the prior interest, which if it is terminated, can then allow the subsequent gift to take effect according to the circumstances prevailing at the time of cessation of the earlier interest. That appears to be the rationale appearing from the observations of Dixon J in Tompkins v Simmonds (supra) at 558 - 559 and it seems to me to apply with particular effect in this present case.

63 I conclude, therefore, that the gift, under Uncle Robert's will to the eldest son of Leonard Hamersley living at the father's death, of the fee simple interest in Fairfield expectant upon the expiration of the prior life interest, confers on Daryl Hamersley a vested interest from the date of the testator's death but it remains, at present, subject to divestment should he die before his father at a time when the life estate continues in effect. So, being a vested rather than a contingent interest it is susceptible to acceleration by surrender of the life interest in the proper manner.

64 Once it is accepted that a surrender of the existing life estate in Fairfield held by Leonard Hamersley will have the effect of accelerating the interest in remainder in favour of Daryl Hamersley (assuming that he is still living at the date of the surrender of the life interest) it follows that upon the determination of the life interest the remainderman will become entitled absolutely to an estate in fee simple in possession and not merely to the unexpired residue of the life interest which has been surrendered. This follows from the analysis already undertaken and because of the termination of the anterior life interest upon which the fee simple in remainder was solely expectant. This is also the conclusion reached by Batt J in Collins v Equity Trustees (supra) where his Honour explained the position, at 172 - 173 as follows:

"But, in my view, it necessarily follows from the interpretation I have placed on the words 'then surviving' that, upon the determination of the first plaintiff's interest by execution of deed, the possibility of defeasance of the second plaintiff's interest will be removed: the contingency on which that interest has been liable to be divested (namely, failure to survive the determination of the prior interest of the first plaintiff) will no longer be capable of occurring. In other words, there will no longer be a contingency on which the second plaintiff's interest is liable to be divested. Thus, in my view, the second plaintiff's interest will vest indefeasibly immediately upon the execution of the deed. To hold otherwise, that is, to hold that the second plaintiff's interest remained liable to be divested if he predeceased the first plaintiff, would, in the circumstances of this will, be inconsistent with my conclusion that the second plaintiff's interest will be accelerated on execution of the deed."

65 In the light of these conclusions I consider that the declarations and other orders which should be made, should be to the effect that:

(a) At this date, Daryl Colin Hamersley, the third named plaintiff, is the person entitled to an estate in fee simple in remainder in the land described in certificate of title volume 507 folio 38A (Fairfield), expectant upon the death of Leonard Colin Hamersley or upon any other determination of that prior life estate during the third named plaintiff's lifetime subject, however, to that estate in remainder becoming divested should the third plaintiff predecease the said Leonard Colin Hamersley at any time during the continuation of the latter's life estate in that land.

(b) In the event that Leonard Colin Hamersley validly surrenders his life interest in Fairfield during the lifetime of Daryl Colin Hamersley, the effect of such a valid surrender of that life interest would be that (unless otherwise disposed of by Daryl Colin Hamersley) his present fee simple interest in remainder in Fairfield would thereupon immediately become an interest in fee simple absolutely.

(c) In the event that Leonard Colin Hamersley were to die at a time when the life interest in Fairfield created by the will of Robert Malcolm Hamersley continued in existence until the date of his death, leaving no son him surviving, the remainder interest in Fairfield would fall into the residuary estate of the testator, Robert Malcolm Hamersley, and, subject to payment of the due costs and expenses of administration, would become distributable to the residuary beneficiaries named in the will or to their personal representatives or successors.

(d) The costs of all parties be paid by the plaintiffs Leonard Colin Hamersley and Daryl Colin Hamersley, and be charged upon their respective interests in Fairfield.

66 However, I will hear counsel as to the precise forms of declarations or other orders which should be made to give effect to this decision.