Clerk v Equity Trustees Executors and Agency Co Ltd

The case of Clerk v Equity Trustees Executors and Agency Co Ltd involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria concerning the interpretation of a testator's will. The dispute arose from an ambiguous clause in the will that directed the division of the testator's property into eight shares among his six brothers and one sister. The ambiguity lay in the distribution of three of these shares, leaving uncertainty as to whether the testator's sister, Elizabeth Farquaher, was intended to receive one or two shares, and consequently, how many shares his sixth brother, Adam Brunton, was to receive.

The High Court was required to determine the testator's true intention regarding the distribution of the eight shares, specifically as between his sister, Elizabeth Farquaher, and his brother, Adam Brunton. This involved interpreting a poorly drafted clause in the will, considering the impact of punctuation, spacing, and the use of capital letters, and assessing whether extrinsic circumstances could aid in resolving the ambiguity. The court had to decide whether to follow the literal wording of the clause, which contained apparent redundancies, or to infer the testator's intention based on the overall structure of the clause and other provisions within the will.

The Court, by majority, reversed the decision of the Supreme Court. The reasoning focused on identifying the most probable intention of the testator, given the confusing language. The Chief Justice and Justice Barton highlighted that the consistent pattern in the will was to name the beneficiary first, followed by the number of shares. They reasoned that the repetition of "one share" after the gift to James Brunton was likely a scribal error, and that the testator intended to give one share to Adam Brunton and two shares to Elizabeth Farquaher. This interpretation was further supported by extrinsic evidence within the will itself, namely the testator's appointment of Mrs. Farquaher as guardian of his infant daughter and his direction for the daughter to be sent to live with her, suggesting a high degree of trust and a likely intention to provide her with a larger share of the estate. The Court found that the punctuation and capitalisation were unreliable indicators of intent due to the scribe's inconsistent use of them.

The High Court ordered that the legal representatives of Adam Brunton were entitled to one share, and those of Elizabeth Farquaher were entitled to two shares, varying the order of the Supreme Court. The costs of all parties were to be paid out of the estate.