Alison v Alison - [1934] HCA 33

ALISON AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Powers of Appointment-Document written by donee but not signed-Intention of

donee-Non-execution or defective execution of power-Aid of Court.

Under a settlement made in respect of a previous marriage A reserved power to appoint in favour of any after-taken wife a specified interest in certain property. The power was exercisable by deed executed prior to the remarriage or by will. The first marriage was dissolved. A proposal of marriage made by A to another lady was accepted subject to her father's consent. The father required information as to A's financial position and what provision he and McTiernan proposed to make for his intended wife. In a document written by him, but unsigned, A gave a short account of the estate from which his property was derived, and how he had settled his interests therein, and, under the heading: "The effect of the estate on Dorothy" (the prospective wife), continued: In the event of my death before Dorothy-Dorothy will be paid a 1/3 of the estate during her lifetime." The marriage was duly celebrated, but four months later A died intestate.

Held, that the document did not evidence an intention to execute the power; therefore, as it was a case of non-execution of a power, and not defective execution, it could not be aided by the Court.

Decision of the Supreme Court of New South Wales (Street J.): Alison V. Strettell, (1934) 34 S.R. (N.S.W.) 396; 51 W.N. (N.S.W.) 112, affirmed.

51 CLR 654

APPEAL from the Supreme Court of New South Wales.

A marriage settlement, executed by James Stuart Irving Alison on the occasion of his first marriage, contained the proviso that " if and SO often as the settlor shall marry again he shall have power by deed executed before any such remarriage or by will to appoint in favour of any after-taken wife a life or less interest to take effect at once or after his death in any part not exceeding one third of the trust fund." That marriage was dissolved. A proposal of marriage by Alison to another lady was accepted subject to her father's consent. Before the father would give his consent he required from Alison a statement of the latter's financial position and of the provision he intended to make for the lady whom he proposed to marry. Alison accordingly prepared a document in which he gave a short account of the estate from which his property was derived and how he had settled his interests therein. It then proceeded :- "The effect of the estate on Dorothy' " (the prospective wife). In the event of Dorothy and I having any children they will share the estate equally with Pops and Michael" (the children of the first marriage). "In the event of my death before Dorothy-Dorothy will be paid a 1/3 of the estate during her lifetime. Rita " (his first wife)

1/3 and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1934] HCA 33
Decision Date: 24 August 1934

CaseChat Overview and Summary

The case of *Alison v Alison* concerned an appeal from the Supreme Court of New South Wales regarding the exercise of a power of appointment. The dispute arose after the death of James Stuart Irving Alison, who had reserved a power under a marriage settlement from his first marriage to appoint a life interest in up to one-third of a trust fund to any after-taken wife. Following the dissolution of his first marriage, Alison proposed to marry again. His intended wife's father required assurance regarding Alison's financial position and the provision he would make for his future wife. In response, Alison prepared an unsigned document detailing his financial affairs and stating, "In the event of my death before Dorothy-Dorothy will be paid a 1/3 of the estate during her lifetime." The marriage proceeded, but Alison died intestate shortly thereafter, without having formally executed the power of appointment.

The central legal issue before the High Court was whether the unsigned document constituted a valid, albeit defective, execution of Alison's power of appointment in favour of his second wife, Dorothy. The widow contended that the document evidenced a clear intention to exercise the power, and that equity should intervene to perfect this defective execution, particularly given the good consideration of marriage. Conversely, the respondents argued that the document did not demonstrate an intention to exercise the power, but rather was merely a statement of financial arrangements, and therefore represented a non-execution of the power, which equity would not aid.

The High Court, affirming the decision of the Supreme Court, held that the document did not evidence an intention to execute the power of appointment. The judges reasoned that while equity can aid the defective execution of a power where there is a clear intention to exercise it, it will not assist in cases of non-execution. The document was found to be descriptive rather than dispositive, lacking the necessary intention to create a legal obligation or to formally exercise the power. The court distinguished this situation from cases where a clear intention to appoint is present but formal requirements are not met, emphasizing that the document was not an attempt to exercise the power, but a mere statement of intended arrangements.

Consequently, the appeal was dismissed. The court found that the unsigned document did not amount to an exercise, defective or otherwise, of the power of appointment. As such, it was a case of non-execution, and equity would not intervene to create an interest for the widow that Alison had not effectively appointed. The trustees' costs were to be taxed as between solicitor and client.

Orders