and that in Re Blackwell [1926] Ch 223 and Re Francis [1905] 2 Ch 223 gifts to beneficiaries "who shall be living at the time of my death absolutely upon his attaining the age of 21 years" or upon attaining the age of 21 years without more, were held to be contingent gifts.
23 In Austin, the will provided for the residue "to vest in my said niece upon her attaining the age of 30 years". White J considered that the meaning of the word "vest" was ambiguous. His Honour thought, prima facie, it meant vesting in interest, and his Honour would have so construed the will if there were a gift over in the event of the beneficiary not obtaining the age of 30. However, there being no gift over, his Honour applied the presumption against intestacy (Jenkins v Stewart (1906) 3 CLR 799 at 804; Fell v Fell (1922) 31 CLR 268 at 275-276, 279 per Isaacs J) which requires the court to prefer a construction which is reasonably open that will avoid an intestacy. In the absence of a gift over, and in order to avoid the possibility of an intestacy, the word "vest" was construed as meaning "vest in possession".
24 In this case, there is a gift over so that no such presumption against intestacy arises. It seems to me that it is difficult to construe clause 3 of the will (or clause 3(c)(iii) of the consent orders) otherwise than as imposing two contingencies - first, that the beneficiaries shall be living at the death of Ms Robson and, secondly, that they shall attain the age of 18 years.
25 It is submitted that, in circumstances where the plaintiffs and the North Coast Children's Home consent to the termination of the trust and the distribution of the trust assets, this should give greater weight to the argument that the proviso that they be living at the date of the death of Ms Robson should be construed not as a contingency but as the time for distribution or payment of the assets.
26 With respect, I do not consider that the trust can be so construed. It seems to me that, properly construed, for an interest under the trust to vest the beneficiaries must not only have attained the age of 18 years but also have survived Ms Robson. The latter condition has not yet been satisfied. Accordingly, it is not open to the plaintiffs to terminate the trust.
Declarations sought in paragraph 1A of the Second Amended Summons
27 There is power pursuant to Pt 54.3 of the Uniform Civil Procedure Rules 2005 to make the alternative declaration sought in this case. The circumstances in which the court will make such a declaration were considered in Wilcox v Poole [1974] 2 NSWLR 693; Macrae v Walsh [1927] 27 SRNSW 290 at 294-295 and Gonzales v Claridades 58 NSWLR 188 at 208-209.
28 Relevantly, in Wilcox v Poole, Mahoney J applied the reasoning in Macrae v Walsh and held that where property was held on trust for existing persons who are sui juris, subject only to the contingency of the birth of a child or children, and that contingency is so unlikely that it may be ignored, then in its discretion the court may direct distribution of the property without reference to such contingency. His Honour made it clear that the court was not, in so doing, determining the legal or equitable rights of the parties but, rather, was acting in the convenient administration of the trusts. In that case, the evidence before his Honour was that it was quite unlikely that the plaintiff, aged 58, would have any further children. Mahoney J had reference to Daniell's Chancery Practice 8th Ed pp 1539 to 1540 where the principle was stated as follows:
There are some cases in which, although the interest of a party in the fund is not absolute, but subject to a contingency, it has been ordered to be paid out at once, the contingency being remote; and formerly the parties receiving the money enter into a recognisance or undertaking to refund it, in the event of the happening of the contingency; but it is no longer practicable, … to require security to refund.
29 Mahoney J noted that the principle was a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled.
30 In the present case, as noted above, evidence was adduced by way of affidavit from each of the plaintiffs which establishes that the beneficiaries have attained the age of 18 years and the evidence from their mother, Mrs Simpson, and her doctor, establishes that from a medical perspective it is highly unlikely that she will have any further children (her husband having had a vasectomy, she being in her fifties), and she has deposed on oath that she does not intend to have or to adopt any further children.
31 I was referred to the judgment of Campbell J in Gonzales v Claridades where his Honour referred to what was said in Parry & Clarke on the Law of Succession 10th ed (1996) JB Clarke ed, London, Sweet & Maxwell at 471-472 as to the ability of the court, where there is some uncertainty about a factual matter relevant to the distribution of a deceased estate, to make an order that the executors are at liberty to distribute on some particular factual basis, that not varying or destroying beneficial interests but merely enabling trust property to be distributed in accordance with the practical probabilities.
32 I was also referred to Bullas v Public Trustee [1981] 1 NSWLR 641 where Kearney J considered an application seeking a declaration and order that trustees of an estate would be justified in distributing the estate to the life tenant and her children, in circumstances where the trusts were subject to a contingency of birth of children to a woman of advanced age. In that case, as with Mrs Simpson, the relevant plaintiff was in her fifties. There, unlike the present case, the woman had undergone a total hysterectomy and other surgical operations the result of which was to render her incapable of conceiving a child. There, as here, she had sworn an affidavit that she had no intention of adopting a child. His Honour was satisfied that there was a sufficiently strong probability against adoption, but noted what had been said in Wilcox v Poole and Macrae v Walsh as to the effects of advances in medical science in this field. In those circumstances his Honour considered that it was desirable in appropriate cases that, as a term of the granting of the requisite authority to the trustees, an undertaking to account should be given to the court by the persons who are to receive the benefit of the distribution as sought. The plaintiffs in that case, as they have here, had indicated their willingness to proffer such an undertaking.
33 I am satisfied on the evidence that the plaintiffs will, as a matter of practical certainty, ultimately become entitled to an interest in the trust (subject only to the plaintiffs surviving Ms Robson) and that, where each of the beneficiaries and the NCCH Inc have consented to the making of the orders, it is appropriate (on the giving of the undertaking proffered by counsel for the plaintiffs to account for such moneys or a proportion thereof in the event that, contrary to the evidence as it appears today, Mrs Simpson should have further children), I considered it appropriate that an order be made authorising the trustees to distribute the estate in the manner sought in paragraph 1A of the Second Amended Summons. I made orders accordingly.