Hurley v Hurley

In *Hurley v Hurley*, the plaintiff, Katherine May Hurley, a niece of the deceased Jeremiah Hurley, sought a declaration from the High Court that she was entitled to reside in a dwelling house on lands forming part of the deceased's estate. The deceased's will devised his land and stock to his nephews, including the defendant, Jeremiah James Hurley, subject to the plaintiff's right to live there while unmarried, and also granted her specific rights concerning a horse, sulky, cows, and beef. The plaintiff had resided with the deceased prior to his death and continued to reside on the land for fifteen months afterwards before purchasing her own home elsewhere.

The legal issues before the court were whether the provision in the will conferred upon the plaintiff a trust or a tenancy for life, and if not, whether she had abandoned the personal right to reside on the land. The plaintiff contended that the will created either a trust or a life tenancy in her favour.

Rich J. held that the will conferred only a personal right on the plaintiff to reside on the land, which was neither a trust nor a tenancy for life. His Honour reasoned that the land was directly devised to the nephews, and the right granted to the plaintiff was described as "the right to live there," without specific mention of a dwelling house. The personal nature of this right was emphasised by the accompanying provisions regarding the use of chattels and stock, which would be absurd to suggest could be assigned. The court found that the testator intended the plaintiff to personally enjoy these amenities, contingent on her continued residence and unmarried status. Crucially, the court determined that the plaintiff had abandoned this personal right by leaving the dwelling and establishing her own residence elsewhere, thereby terminating her entitlement.

Consequently, the High Court dismissed the plaintiff's action and ordered that she pay the defendant's costs.