Endresz v Whitehouse

In *Endresz v Whitehouse*, the High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria concerning the interpretation of a will. The dispute centred on whether a specific bequest of shares in a company, "Whitehouse Pty. Ltd.", was valid, given that the testator, Mr. Whitehouse, had, prior to his death, sold all his shares in that company and acquired shares in a different company, "Endresz Pty. Ltd.". The executor of the will, Ms. Endresz, sought directions from the court regarding the distribution of the estate.

The primary legal issue before the High Court was whether the specific bequest of shares in "Whitehouse Pty. Ltd." should be construed as a gift of the shares the testator held at the time of his death, or whether it should be interpreted as a gift of the shares in the company that bore the name "Whitehouse" at the time the will was made. This required the court to determine the testator's intention in making the bequest and how to apply the will's provisions in light of the change in the testator's shareholdings.

Deane and Gaudron JJ, in their joint judgment, applied the principle that the primary object of the court in construing a will is to ascertain and give effect to the testator's intention. They held that where a testator makes a specific bequest of property that they no longer own at the time of their death, the bequest fails unless there is evidence that the testator intended to refer to property of a particular description or class, rather than the specific item itself. In this instance, the court found that the testator's intention was to bequeath the shares he held in the company known as "Whitehouse Pty. Ltd." at the time of his death. As he no longer held shares in that company, the bequest of those specific shares lapsed. The court also considered whether the bequest could be interpreted as a gift of shares in "Endresz Pty. Ltd." due to the name change, but concluded that there was no sufficient evidence to support such an interpretation.

The High Court allowed the appeal, finding that the specific bequest of shares in "Whitehouse Pty. Ltd." had lapsed. Consequently, the shares in "Endresz Pty. Ltd." formed part of the residue of the testator's estate and were to be distributed accordingly.