Lewis v O'Loughlin

[1971] HCA 53

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies and Gibbs JJ.

LEWIS v. O'LOUGHLIN

(1971) 125 CLR 320

12 November 1971

Wills

Wills—Construction—Home-made will—Bequest of "the total sum of my monetary investments"—Whether bequest includes interest of testatrix in unadministered estate of &hich she was sole beneficiary.

Decisions

November 12.
The following written judgments were delivered:
BARWICK C.J. The testatrix, who died on 23rd July 1968, at the age of sixty-eight, made her last will on 18th August 1967. Her father had three daughters, of whom the testatrix was at the date of the death of her niece, Phoebe, the sole survivor. One of her sisters had married Herbert Matthews who died in 1966. They had one daughter, Phoebe Dawn Matthews who died on 15th July 1967 intestate. Thus at the date of her will, the testatrix, according niece, Phoebe. She was also a life tenant in a trust fund set up Matthews, at the date of her death, was entitled to the whole of the estate of her grandfather Charles George Thomas Whittle. The assets of that estate at the date of the death of Phoebe Matthews comprised Commonwealth Inscribed Stock, shares in co-operative and public companies, a loan of money secured by mortgage of land and money in a bank account. Phoebe Dawn Matthews was also entitled at the date of her death to the whole of the estate of her father, Herbert Matthews. That estate at that time comprised a sum of $13,499.38 held by the Public Trustee, two parcels of land at Crafers in the State of South Australia, a motor car and certain furniture and effects valued at $454.40 which had been taken by the testatrix into her possession before her niece's death and sold, the proceeds being in the testatrix's hands at the time of her death. (at p323)

2. At the date of the will the testatrix herself held money in several banks, had money invested in bonds and debentures, shares in public ompanies and units in a South Australia Flexible Trust. At the date of her death, apart from her interest in the estate of Phoebe Dawn Matthews and through that estate in the estate of Charles George Thomas Whittle, the testatrix had the said money in banks, the said investments and in addition was entitled to - (i) accrued salary, holiday pay and long service leave in respect of her employment with an Adelaide firm; (ii) a sum due to her by the Commissioner of Taxation in respect of Group Tax and provisional tax; (iii) an amount of income in respect of her life estate in the said fund accrued but unpaid. She also had a house, furniture and effects, furs, jewellery and a motor car. (at p323)

3. The testatrix drew her own will which was typewritten in the following terms, the underlining All expressions printed in capital letters were underlined in the will. being that of the testatrix.

"THIS IS THE LAST WILL AND TESTAMENT of me MELVA RENE KING of…