Fisher v Fisher

The case of Fisher v Fisher was heard by the Supreme Court of South Australia, where the dispute centred around the interpretation of a will. The testatrix had bequeathed her estate to her children "who survive me". However, in the event that any of her children predeceased her, she provided for substitution, directing that the estate should go to her grandchildren in equal shares. The issue arose because one of her sons had died before the execution of the will, leading to a contention over whether the substitution clause applied to his descendants.

The legal question before the court was whether the substitution clause in the will was intended to apply to grandchildren of a deceased son who had predeceased the testatrix. The court had to determine if the substitution clause was activated by the predecease of the son before the will was made, or if it only applied to situations where the children died after the will was executed. The resolution of this question hinged on the precise wording of the will and the intention of the testatrix.

In its judgment, the court held that the substitution clause was not triggered by the predecease of the son prior to the execution of the will. The court reasoned that the clause was intended to address situations where the children died after the will was made, thereby necessitating a substitution. Since the son in question had already predeceased the testatrix before the will was executed, the court found that the substitution clause did not apply to his descendants. Consequently, the estate was distributed among the surviving children and the children of the deceased son. The court's interpretation was based on the principle that the testatrix's intention was to provide for her children and their descendants in the event of their predecease, but not in circumstances where they had already predeceased her at the time of making the will.

The court ordered that the estate be distributed according to the will, with the surviving children and the children of the deceased son receiving their respective shares. The substitution clause did not apply to the deceased son's children, as he had died before the will was made.