Hedger v Kiel [1949] HCA 56

Hedger v Kiel [1949] HCA 56

A majority of the court held that the power of appointment given by Frank Owen Hedger's will was sufficiently general, as the words 'at such ages or times and in such manner' did not restrict the class of objects but specified modes of exercise. Accordingly, section 23 (2) and (3) of the Wills, Probate and Administration Act applied, and the general residuary bequest in Martha Maud Hedger’s will was an effective exercise of the power.

Parties
Appellant: Phyllis Martha Hedger; Respondent: Clarence Reginald Cecil Kiel; Respondent: Thomas Gavan Douglas Marshall; Respondent: Henry William Berghofer; Respondent: Phillip Walter Smyth King; Respondent: Robert Bathurst Lew
Jurisdiction
Australia
Procedural Posture
Appeal / Final Determination
Outcome
appeal dismissed by majority
Legal Topics
Power of Appointment, Interpretation of Wills, General and Limited Powers, Statutory Execution of Testamentary Powers
Wills and Probate Trusts Power of Appointment Interpretation of Wills General and Limited Powers Statutory Execution of Testamentary Powers

Case Brief

Summary, issues, holding and outcome

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Parties

Phyllis Martha Hedger

Appellant

Clarence Reginald Cecil Kiel

Respondent

Thomas Gavan Douglas Marshall

Respondent

Henry William Berghofer

Respondent

Phillip Walter Smyth King

Respondent

Robert Bathurst Lew

Respondent

Procedural Posture

Appeal / Final Determination

Legal Issues

  1. 1 Whether a testamentary power of appointment was effectually executed by a general residuary devise and bequest in the donee's will
  2. 2 Whether the class of objects of the power was sufficiently general for the purposes of section 23 (2) and (3) of the Wills, Probate and Administration Act 1898-1947 (N.S.W.)

Ratio Decidendi

A majority of the court held that the power of appointment given by Frank Owen Hedger's will was sufficiently general, as the words 'at such ages or times and in such manner' did not restrict the class of objects but specified modes of exercise. Accordingly, section 23 (2) and (3) of the Wills, Probate and Administration Act applied, and the general residuary bequest in Martha Maud Hedger’s will was an effective exercise of the power.

Court Disposition

appeal dismissed by majority

Orders

  • Costs of all parties paid out of the estate, those of the trustees as between solicitor and client.