Re Tennant Mortlock v Hawker [1942] HCA 3

Re Tennant Mortlock v Hawker [1942] HCA 3

On the true construction of the will, the intention disclosed is that fractional or proportional shares of the testator’s children in the residuary estate are to be ascertained on conversion, not at the date of death. Pending ascertainment at conversion, intermediate income should be divided by crediting interest at four percent per annum on each advancement to the fund, dividing the aggregate by the number of beneficiaries, and deducting the credited interest from the share of the advanced beneficiary. Once shares are ascertained, income is to be apportioned in those proportions.

Parties
Appellant: Mortlock; Respondents: Hawker and others; Appellants: Hawker and another
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From the Supreme Court of South Australia to the High Court of Australia
Outcome
Appeals dismissed
Legal Topics
Hotchpot Clauses, Ascertainment of Shares, Distribution of Income, Construction of Testamentary Instruments, Advancements to Beneficiaries
Wills and Estates Trusts Equity Hotchpot Clauses Ascertainment of Shares Distribution of Income Construction of Testamentary Instruments Advancements to Beneficiaries

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Parties

Mortlock

Appellant

Hawker and others

Respondents

Hawker and another

Appellants

Procedural Posture

Appeal / Appeal From the Supreme Court of South Australia to the High Court of Australia

Legal Issues

  1. 1 At what time are the proportionate shares of beneficiaries under a will with a hotchpot clause to be ascertained: at the testator’s death, at conversion, or at some intermediate date?
  2. 2 How should intermediate income be divided among beneficiaries where advances are to be brought into hotchpot?

Ratio Decidendi

On the true construction of the will, the intention disclosed is that fractional or proportional shares of the testator’s children in the residuary estate are to be ascertained on conversion, not at the date of death. Pending ascertainment at conversion, intermediate income should be divided by crediting interest at four percent per annum on each advancement to the fund, dividing the aggregate by the number of beneficiaries, and deducting the credited interest from the share of the advanced beneficiary. Once shares are ascertained, income is to be apportioned in those proportions.

Court Disposition

Appeals dismissed

Orders

  • Appeals dismissed.
  • Costs of all parties, including trustees on a solicitor and client basis, to be paid out of the estate.