Harris v King

The case of *Harris v King* concerned an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute arose from the interpretation of a testator's will, specifically concerning the validity of future trusts established for the sale of certain properties and the distribution of the proceeds. The testator died in 1880, and the will, made in 1873, established trusts for his daughters and their issue, with a complex gift-over provision. The Supreme Court had previously declared these future trusts void for infringing the rule against perpetuities.

The central legal issue before the High Court was whether the gift-over provision in the testator's will, which directed the sale of property and distribution of proceeds after the death of his daughter and her husband, was void for remoteness. This required the court to determine if the provision was conditioned on a single compound event that might occur outside the perpetuity period, or if it could be construed as a gift over on distinct, alternative events, one of which might fall within the perpetuity period. The court also considered whether the wording of the will sufficiently separated potential contingencies to allow for a "gift over on a contingency with a double aspect."

The High Court, affirming the decision of the Supreme Court, held that the gift-over provision was void for remoteness. The court reasoned that the testator had not separated the contingencies into distinct and alternative events. Instead, the provision referred to a single compound event: the death of the daughter and her husband. The possibility that the daughter might marry a husband not born at the testator's death, who could then survive her by more than twenty-one years, meant that the event upon which the gift-over was conditioned might occur outside the perpetuity period. The court emphasised that it would not split or separate compound contingencies in a will to save a gift from the rule against perpetuities; the testator must have expressly separated them. The words "if any" in relation to the husband were not considered sufficient to create separate, alternative contingencies.

Consequently, the High Court dismissed the appeal, upholding the Supreme Court's order that the trusts for sale and distribution of proceeds were invalid due to infringing the rule against perpetuities. The costs of the appeal were to be dealt with in the same manner as the costs in the Supreme Court proceedings.