Jeffree Wilfred Hegarty v [2011] NSWSC 1194

EX TEMPORE Judgment 1The late Barbara Anne Pollack died between 21 and 24 October 2010 in Kingsgrove, New South Wales. The deceased appointed the Plaintiff, Jeffree Wilfred Hegarty, the executor and trustee of her will. Probate of the will was granted to Mr Hegarty. 2Mr Hegarty sought the advice of the court as to the proper construction of the will under s 63 of the Trustee Act 1925. Because the Royal Society for the Prevention of Cruelty to Animals New South Wales wished to be heard on the application I made an order that Mr Hegarty would be justified in serving all beneficiaries named in the will with the summons and the statement of facts under s 63 and the Uniform Civil Procedure Rules 2005, Pt 55, r 55.1. None of the other beneficiaries wished to be heard. 3After making provision for several legacies, clause (h) of the will provided: "As to the sum of THIRTY THOUSAND DOLLARS ($30,000) to my Trustee UPON TRUST to pay thereout of capital as well as income to arise therefrom the sum of TWO THOUSAND DOLLARS ($2,000) per annum to KAREN HAYWOOD for the maintenance and care of any pets in my possession at the date of my death during the life of my said pets as long as she produces the said animals alive to my Trustee or other person appointed by my Trustee for that purpose and upon the death of my said animals I GIVE the remaining capital together with any unpaid income to THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NEW SOUTH WALES (RSPCA NSW) I DIRECT that the said KAREN HAYWOOD shall have absolute discretion as to the welfare of my said pets either caring for them personally or arranging for their care through an appropriate facility. IN THE EVENT THAT I have no pets in my possession at the date of my death then I GIVE AND BEQUEATH the said sum of THIRTY THOUSAND DOLLARS ($30,000) to the aforementioned Society." 4The clause was followed by further legacies in favour of various charities after which the following residuary clause appeared: " I GIVE TO MY Trustee the rest and residue of my estate both real and personal of whatsoever kind and whatsoever situate UPON TRUST to sell call in and convert into money such part or parts thereof as shall not consist of money with power to my Trustee to postpone the sale and realisation thereof for so long as he in his absolute discretion shall deem expedient and TO DIVIDE the net proceeds thereof together with any ready moneys belonging to me at the time of my death into four (4) equal parts and TO HOLD such parts upon the trusts following: -