Knight v Knight

The case of *Knight v Knight* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Tasmania concerning the interpretation of a testator's will. The central dispute revolved around the entitlement to the residuary estate, specifically whether children born after the testator's death but before the age of 21 were included in the class of beneficiaries. The appellants were children of the testator's nephew, Josiah Charles Eagle Knight, who were born either after the testator's death but before the eldest child of the testator's niece attained 21, or after that milestone.

The primary legal issue before the High Court was the interpretation of the phrase "such of the children of A and of B, as shall survive me and live to attain the age of 21 years". Specifically, the court had to determine the meaning of "survive me" in this context and whether it referred only to children alive at the testator's death, or encompassed all children born during the testator's lifetime and those born subsequently who reached the age of 21. A secondary issue, dependent on the first, was the application of the "rule of convenience" in closing the class of beneficiaries.

The High Court, in a majority decision by Barton and Isaacs JJ. (with Griffith C.J. dissenting), held that the primary meaning of "survive" is "outlive," and that the will's context did not displace this meaning. Consequently, only children who were alive at the testator's death were considered to have survived him. Griffith C.J., dissenting, argued that the testator intended to benefit all children of his niece and nephew who attained 21, regardless of their birth date relative to his own death, finding support for this interpretation in various provisions of the will. Both Griffith C.J. and Isaacs J. also commented on the rule of convenience, stating it should only be applied when necessary, particularly when a fund becomes actually divisible. The decision of the Supreme Court of Tasmania was affirmed.