Alison v Alison

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.