Fisher v Fisher

In *Fisher v Fisher*, the Supreme Court of Queensland considered a dispute concerning the interpretation of a will. The testator, who had been a tenant for life of certain shares in a company, had bequeathed these shares to a remainderman. The central issue revolved around the nature of the testator's interest in the shares and whether this interest was sufficient to pass to the remainderman under the terms of the will.

The court was required to determine whether the testator possessed a proprietary interest in the shares that could be the subject of a testamentary disposition. Specifically, the court had to ascertain the extent of the testator's rights and obligations as a tenant for life in relation to the shares, and whether those rights constituted an equitable interest capable of being bequeathed.

The court reasoned that the testator's interest as a tenant for life was not a full beneficial ownership of the shares but rather a right to enjoy the income or benefits derived from them during their lifetime. As the testator did not hold the legal or beneficial title to the shares themselves, but only a right to their usufruct, they could not bequeath the shares to the remainderman. The court applied the principle that a tenant for life's interest is limited to the enjoyment of the property, not its disposal.

Consequently, the court found that the testator's will did not effectively pass the shares to the remainderman. The shares remained subject to the original trust or settlement, and the remainderman's interest would only arise upon the termination of the life tenancy, in accordance with the terms of the instrument that created the life tenancy.