Will—Construction—Life estate in one asset to wife then to named child—Residue of estate undisposed of in event of wife surviving testator—Estate disposed of in event of wife predeceasing testator—Whether proper to imply a particular gift of residue in event of wife surviving testator.

Decisions

1966, February 25.
The following written judgments were delivered:-
BARWICK C.J. George Butlin died on 19th April 1962. He was survived by his widow Constance Butlin, three daughters and two sons. His property consisted of real estate, money in a bank account, a motor vehicle and a taxi plate, the whole being valued for probate purposes at 14,889 pounds 2s. 6d. (at p355)

2. The real estate consisted of two properties, a residence, used by him and his wife as a home for some fifteen years before his death, known as No. 155 Attunga Road, Yowie Bay, and another residence No. 71 Lancelot Street, Five Dock, held by the deceased and his wife as joint tenants. (at p356)

3. The taxi plate was valued at 6,700 pounds and was a means of production of income. (at p356)

4. Probate of his last will was duly granted to his widow who was thereby appointed his sole executrix and trustee. The will was in the following terms:

"This is the last Will and Testament of me George William Butlin of 155 Attunga Road Yowie Bay in the State of New South Wales Retired.

I hereby revoke all former Wills Codicils and Testamentary Dispositions heretofore made by me and declare this to be my last Will and Testament.

I appoint my wife Constance Butlin to be sole Executrix and Trustee of this my Will.

I give and bequeath free of all death and estate duties funeral and testamentary expenses my rights in Taxi Plate Number T-278 to my said wife for her life and from and after her death to my daughter Rita Chapman absolutely.

But if my wife should predecease me then and in such event I give devise bequeath and appoint my cottage number 155 Attunga Road Yowie Bay to my three daughters Hazel Woods Joyce Jones and Rita Chapman as tenants in common subject to payment thereout of all funeral and testamentary expenses death and estate duties and also in such event I give devise bequeath and appoint the rest and residue of my Estate both real and personal and wheresoever situate to my daughters the said Hazel Woods and Joyce Jones in equal shares absolutely.

And I declare that my Trustees may and notwithstanding anything hereinbefore contained postpone the sale or conversion of any part of my real and personal estate for so long as they shall think fit.

And I also declare that with regard to any of my real and personal estate remaining unsold my Trustee shall be at liberty to let or demise the same for any term she may think…

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 Butlin v Butlin

Details

AGLC: Butlin v Butlin [1966] HCA 4
Case: [1966] HCA 4
Decision Date: 25 February 1966

CaseChat Overview and Summary

The Full Court of the High Court of Australia heard an appeal concerning a dispute between a husband and wife, Mr. and Mrs. Butlin, regarding the matrimonial home. The central issue revolved around the wife's claim for a beneficial interest in the property, which was registered solely in the husband's name.

The court was required to determine whether the wife had established a resulting or constructive trust over the matrimonial home, thereby entitling her to a share of its beneficial ownership. This involved an examination of the contributions made by both parties to the acquisition and maintenance of the property, as well as their intentions and understandings regarding ownership.

The court considered the principles governing resulting and constructive trusts in the context of family property disputes. It analysed the evidence of the parties' financial and non-financial contributions, including the wife's role in managing the household and raising children, and the husband's sole legal title. The court applied established legal tests to ascertain whether the circumstances gave rise to an equitable interest in favour of the wife, notwithstanding the absence of formal legal title.

The appeal was dismissed, with the court finding that the wife had not discharged the onus of proving the existence of a resulting or constructive trust over the matrimonial home. Consequently, the husband was held to be the sole beneficial owner of the property.

Orders