Boland v Dillon; Cush v Dillon

The High Court of Australia considered an appeal concerning the interpretation of a will and the equitable doctrine of election. The appellants, the beneficiaries of the will, sought to uphold the primary judge's decision that the respondent, who was also a beneficiary, was not entitled to a specific parcel of land. The respondent argued that the will, when read in conjunction with certain prior dealings, conferred a beneficial interest in that land upon her.

The central legal issue before the High Court was whether the respondent was put to an election by the terms of the will. Specifically, the court had to determine if the will purported to dispose of property in which the respondent had a beneficial interest, and if so, whether the respondent's conduct in accepting benefits under the will amounted to an election to forgo her interest in that property in favour of the disposition made by the will.

The High Court held that the doctrine of election applied. Their Honours reasoned that the will clearly intended to dispose of the land in question, and that the respondent, by accepting other substantial benefits provided for her under the will, had elected to take under the will. This election meant she was bound by the terms of the will, which included the disposition of the land to another beneficiary, and therefore she could not also claim the land for herself. The court affirmed the principles of election, which require a testator to show a clear intention to dispose of the beneficiary's property, and a beneficiary to have a choice between taking under the will or asserting their independent right to the property.

The appeal was allowed, and the orders of the primary judge were reinstated.