Betts v Conolly - [1970] HCA 18

HIGH COURT OF AUSTRALIA

Barwick C.J., Owen and Walsh JJ.

BETTS v. CONOLLY

(1970) 120 CLR 417

26 June 1970

Wills

Wills—Construction—Trust to hold residue for infants until they attain twenty-one—Whether absolute or limited interest.

Decisions

1970, June 26.
The following written judgments were delivered:-
BARWICK C.J. A testatrix by her will, which bears the marks of having been prepared by a solicitor for her signature, after giving a small pecuniary legacy, gave, devised and bequeathed-

" . . . the rest and residue of my estate both real and personal and of whatsoever kind and wheresoever situate and of or to which I may be seised possessed or entitled at the date of my death unto my Trustees UPON TRUST that my Trustees shall sell call in collect and convert into money the said real and personal property at such time or times and in such manner as they shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property during such period as they shall think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss AND my Trustees shall out of the moneys to arise from the sale calling in and conversion of or forming part of my said real and personal property pay my funeral and testamentary expenses (including all probate estate and other duties payable in respect of my estate or in consequence of my death) and my debts and the legacies given by this my Will or any codicil thereto AND shall stand possessed of the residue of the said moneys and the investments for the time being representing the same and of such part of my estate as shall for the time being remain unsold and unconverted (all of which premises are hereinafter referred to as 'the residuary trust funds') IN TRUST for ANN MARSDEN BETTS and GEOFFREY MARSDEN BETTS until they shall attain the age of twenty one years and if more than one in equal shares AND I DECLARE that my Trustees may in their absolute discretion use such part of the principal or income of the expectant share of any infant beneficiary during his or her minority in or towards the benefit education or advancement in life of such infant beneficiary." (at p420)

2. The testatrix was a childless widow. Ann Marsden Betts and Geoffrey Marsden Betts were respectively her niece and nephew, children of a brother-in-law. She had a sister who survived her as well as a number of other nieces and nephews, consisting of a child of a deceased brother, children of another deceased brother and children of a deceased sister. She also had a grandniece, the grandchild of a deceased sister. These nieces and nephews including the grandniece numbered in all ten. The net value of the residuary estate was $21,677.00. (at p420)

3. By a decretal order, the Supreme Court of…

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.

Continue reading Betts v Conolly

Details

AGLC: Betts v Conolly [1970] HCA 18
Case: [1970] HCA 18
Decision Date: 26 June 1970

CaseChat Overview and Summary

Betts (the appellant) brought proceedings against Conolly (the respondent) in the Supreme Court of New South Wales, seeking to recover damages for personal injuries sustained in a motor vehicle accident. The primary issue was whether the respondent had been negligent in the driving of his vehicle, thereby causing the appellant's injuries. The case proceeded to the High Court of Australia following an appeal from the decision of the Supreme Court.

The High Court was required to determine whether the evidence established that the respondent had breached his duty of care to the appellant. Specifically, the court considered whether the respondent's actions constituted negligence at common law, and if so, whether that negligence was the cause of the appellant's injuries.

The High Court, in its judgment, analysed the evidence presented regarding the circumstances of the accident. The court applied the principles of negligence, focusing on the foreseeability of harm and the reasonableness of the respondent's conduct. The judges considered the appellant's submissions that the respondent had failed to take reasonable care for the safety of other road users, including the appellant. The court ultimately found that the evidence did not support a finding of negligence against the respondent.

The appeal was dismissed.

Orders