Gutheil v Ballarat Trustees Executors and Agency Company Limited [1922] HCA 19

Gutheil v Ballarat Trustees Executors and Agency Company Limited [1922] HCA 19

The words 'my next of kin' in the testator's will, given the structure and context of the will and the expressed intention to exclude certain persons, are to be construed as 'my nearest blood relations at my death other than my son and my two sisters'. Including the son would render the clause nugatory, as he would already have taken under previous provisions. Thus, the will intends to exclude the son from the class of 'next of kin' in clause 6(c).

Parties
Appellant; Widow; Beneficiary: Margaret Edith Lyell Gutheil; Respondent; Trustee; Plaintiff: The Ballarat Trustees, Executors and Agency Company Limited; Respondent; Trustee; Plaintiff: Thomas Ryan Jones; Respondent; Public Trustee: Reginald Hayes
Jurisdiction
Australia
Judgment Date
15 May 1922
Procedural Posture
Appeal / On Appeal From Supreme Court of Victoria
Outcome
appeal dismissed
Legal Topics
Will Construction, Gift Over, Meaning of 'next of Kin'
Wills and Succession Will Construction Gift Over Meaning of 'next of Kin'

Case Brief

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Parties

Margaret Edith Lyell Gutheil

Appellant; Widow; Beneficiary

The Ballarat Trustees, Executors and Agency Company Limited

Respondent; Trustee; Plaintiff

Thomas Ryan Jones

Respondent; Trustee; Plaintiff

Reginald Hayes

Respondent; Public Trustee

Procedural Posture

Appeal / On Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Proper construction of a will's residuary clause: does 'my next of kin save and except my two sisters' include the testator's deceased son?
  2. 2 Does the will intend to exclude the son from the class of 'next of kin'?
  3. 3 At what time should 'next of kin' be ascertained for the purpose of the will?

Ratio Decidendi

The words 'my next of kin' in the testator's will, given the structure and context of the will and the expressed intention to exclude certain persons, are to be construed as 'my nearest blood relations at my death other than my son and my two sisters'. Including the son would render the clause nugatory, as he would already have taken under previous provisions. Thus, the will intends to exclude the son from the class of 'next of kin' in clause 6(c).

Court Disposition

appeal dismissed

Orders

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