Hartnett and Sampson (No. 6)

In *Hartnett and Sampson (No. 6)*, Dawe J of the Supreme Court of Victoria considered a dispute concerning the administration of the estate of the late Mr. Hartnett. The applicants, Mr. Hartnett's children, sought directions from the court regarding the distribution of certain assets, specifically shares in a company, which they claimed were held on trust for them by the executors, the respondents. The core of the disagreement lay in whether these shares formed part of the deceased's residuary estate or were subject to a specific trust in favour of the children.

The primary legal issue before the court was to determine the true nature of the beneficial ownership of the shares in question. Specifically, Dawe J had to ascertain whether the deceased's intention, as evidenced by the relevant documents and surrounding circumstances, was to create a trust over these shares for the benefit of his children, or if they were intended to be part of the general estate to be administered according to the terms of his will. This involved an analysis of the deceased's testamentary intentions and the legal effect of his actions and communications concerning the shares.

Dawe J's reasoning focused on the principles of trust law, particularly the requirements for the creation of a valid express trust, which include certainty of intention, certainty of subject matter, and certainty of object. His Honour examined the correspondence and conduct of the deceased in relation to the shares, seeking to identify a clear and unequivocal intention to divest himself of beneficial ownership and to hold the shares for the benefit of his children. After careful consideration of the evidence, Dawe J concluded that the deceased had not demonstrated the necessary intention to create a trust over the shares. Consequently, the shares were found to form part of the deceased's residuary estate.