Butteriss v O'Riley

The High Court of Australia considered the dispute between Butteriss and O'Riley concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of a property was adeemed.

The Court was required to determine whether the testator's intention, as evidenced by the will and surrounding circumstances, was to give a specific devise of the property or a general legacy. This involved considering the language of the will and the testator's actions subsequent to its execution.

The Court reasoned that the doctrine of ademption applies when a specific legacy or devise fails because the subject matter of the gift no longer exists in the form bequeathed at the time of the testator's death. In this instance, the Court found that the testator had disposed of the property during their lifetime, thereby fundamentally changing its character. Consequently, the specific devise had adeemed, and the beneficiary was not entitled to the property. The Court applied the principle that the testator's intention at the time of making the will is paramount, but this intention must be assessed in light of the actual subject matter of the gift at the time of death.

The High Court allowed the appeal, setting aside the orders of the lower court and remitting the matter for determination in accordance with the reasons of the High Court.