Farrelly v Phillips

This case concerned an appeal to the Full Court of the Supreme Court of South Australia, brought by a child of a first cousin of the testatrix who had predeceased her. The executor of the will, the first respondent, had sought the determination of questions arising in an action for administration, specifically concerning the construction of clauses 3(n) and 4 of the testatrix's will. The central dispute was whether the children of the testatrix's first cousins who had died before her were entitled to inherit a share of the residuary estate.

The legal issues before the court were: (1) whether clause 3(n) of the will, which described the beneficiaries of the residue as "those of the children of the deceased brothers and sisters of both my late mother and father who survive me," constituted a class gift; and (2) whether clause 4, which provided for a substitutionary gift to the children of a predeceased beneficiary, operated to include the children of first cousins who had died before the testatrix made her will. The court was required to determine the testatrix's intention regarding the distribution of her residuary estate in light of these clauses and the fact that some of her first cousins had predeceased her.

The court's reasoning focused on the precise language of the will and the principles of testamentary construction. It was held that clause 3(n) was indeed a class gift, as the beneficiaries were identified by a general description rather than by name. The court considered whether clause 4 acted as a true substitutionary clause, meaning it only applied to beneficiaries who were alive at the time the will was made and subsequently predeceased the testatrix, or whether it conferred an original gift on the children of predeceased beneficiaries. Drawing an analogy to cases such as *Christopherson v Naylor* and *Re McPherson*, the court concluded that clause 4 was a substitutionary clause that did not operate to include the children of first cousins who had died before the will was even made. The court found that the language of the will did not evince an intention to substitute the children of predeceased first cousins for their parents, particularly where those parents had died prior to the will's execution.

The appeal was dismissed. The court found that the testatrix's intention, as expressed in the language of the will, was to benefit only those first cousins who survived her, and that clause 4 did not extend this benefit to the children of first cousins who had already died before the will was made.