Butlin v Butlin [1966] HCA 4

Butlin v Butlin [1966] HCA 4

By majority, although the will indicated that the testator had omitted some provision for the event that his wife survived him, it did not indicate with compelling certainty what that omitted gift was. Because an absolute gift of the Yowie Bay cottage or residue to the widow was only conjectural, no such gift could be implied, and the cottage was held on trust for the widow and the defendants as next of kin in the shares applicable on intestacy under the Wills, Probate and Administration Act, 1898-1954.

Jurisdiction
Australia
Procedural Posture
Appeal in a Will Construction Proceeding / Appeal to the High Court of Australia From a Decretal Order of the Supreme Court of New South Wales in Its Equitable Jurisdiction Upon an Originating Summons
Outcome
Appeal allowed; the Supreme Court's decretal order was varied.
Legal Topics
['construction of Wills' 'necessary Implication of Omitted Testamentary Gifts' 'partial Intestacy' 'executor and Trustee Duties' 'next of Kin']
['succession Law' 'equity and Trusts'] ['construction of Wills' 'necessary Implication of Omitted Testamentary Gifts' 'partial Intestacy' 'executor and Trustee Duties' 'next of Kin']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal in a Will Construction Proceeding / Appeal to the High Court of Australia From a Decretal Order of the Supreme Court of New South Wales in Its Equitable Jurisdiction Upon an Originating Summons

Legal Issues

  1. 1 ['Whether the will necessarily implied an absolute gift to the widow of the Yowie Bay cottage or residue if she survived the testator.' 'Whether, if no such gift could be implied with sufficient certainty, the Yowie Bay cottage devolved as on intestacy to the next of kin.']

Ratio Decidendi

By majority, although the will indicated that the testator had omitted some provision for the event that his wife survived him, it did not indicate with compelling certainty what that omitted gift was. Because an absolute gift of the Yowie Bay cottage or residue to the widow was only conjectural, no such gift could be implied, and the cottage was held on trust for the widow and the defendants as next of kin in the shares applicable on intestacy under the Wills, Probate and Administration Act, 1898-1954.

Court Disposition

Appeal allowed; the Supreme Court's decretal order was varied.

Orders

  • ['Declare that upon the true construction of the will of George William Butlin deceased and in the events which have happened the plaintiff as executrix and trustee of the will holds the cottage known as Number 155 Attunga Road Yowie Bay upon trust for herself and the defendants as next of kin of the deceased in the...