Hedger v Kiel

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from the interpretation of a power of appointment granted by the will of Frank Owen Hedger. The testator's will established a trust fund and, in clause 14, granted his wife, Martha Maud Hedger, a testamentary power to appoint one-third of this fund "for such person or persons at such ages or times and in such manner as my wife by will appoints." Martha Maud Hedger died after her husband, leaving a will that made a general disposition of all her property. The executors of her will argued that this general disposition effectively exercised the power of appointment under section 23 of the *Wills, Probate and Administration Act 1898-1947* (N.S.W.). The appellant, Phyllis Martha Hedger, contended that the power of appointment was limited and therefore not effectively exercised by the general disposition in Martha Maud Hedger's will.

The central legal issue before the High Court was whether the power of appointment granted by clause 14 of Frank Owen Hedger's will was a "power to appoint in any manner he may think proper" within the meaning of section 23(3) of the *Wills, Probate and Administration Act 1898-1947* (N.S.W.). This determination hinged on whether the words "at such ages or times" imposed a limitation on the class of objects of the power, thereby rendering it a special or limited power, or whether they merely specified the mode of exercise, leaving the power general. The court also considered whether the term "person or persons" in the power of appointment could include non-natural persons such as corporations or institutions.

Latham C.J. and McTiernan J. held that the words "at such ages or times" did not limit the class of objects but rather specified the manner in which the power could be exercised. They reasoned that an appointment could be valid even without reference to age or time, and that the word "times" could potentially include appointments to artificial persons. Consequently, they concluded that the power was sufficiently general to fall within section 23(3) of the Act, and thus Martha Maud Hedger's general testamentary disposition effectively exercised it. Williams J., dissenting, found that the inclusion of "ages or times" indicated an intention to limit the objects to natural persons, making the power a limited one and therefore not exercisable under section 23(3) by a general devise.

By majority decision, the High Court dismissed the appeal. The court ordered that the costs of all parties be paid out of the estate of the testator, Frank Owen Hedger, with the costs of the trustees to be taxed as between solicitor and client.