Mailler v Hohn

In *Mailler v Hohn*, the High Court of Australia considered a dispute concerning the interpretation of a will and the application of the rule against perpetuities. The case involved the deceased's will, which established a trust for the benefit of the testator's grandchildren, with a provision for the distribution of the trust fund to the grandchildren's issue upon the death of the last surviving grandchild.

The central legal issue before the High Court was whether the gift over to the grandchildren's issue was void for remoteness under the rule against perpetuities. This required the Court to determine whether the interests of the issue were certain to vest within the perpetuity period, which is typically 21 years after the death of a person alive at the date of the testator's death.

The High Court held that the gift over to the grandchildren's issue was void for remoteness. The Court reasoned that the will did not sufficiently restrict the class of beneficiaries to those who would be born and attain a vested interest within the perpetuity period. Specifically, the Court found that it was possible for a grandchild to have issue born after the perpetuity period had expired, and for those issue to then become entitled to a share of the trust fund. This possibility meant that the vesting of the interests of the issue was not guaranteed within the perpetuity period, thus offending the rule against perpetuities.

Consequently, the High Court ordered that the gift over to the grandchildren's issue failed, and the trust fund would be distributed according to the rules of intestacy.