Matthews v Matthews

The appellants, executrices of the will of George Cole Matthews, appealed to the High Court of Australia against a decision of the Supreme Court of Victoria. The dispute concerned certain land which the defendant, Frake Richard Matthews, also an executor of the testator's will, claimed as an imperfect gift perfected by his appointment as executor. The plaintiffs alleged the defendant was merely a tenant at will whose tenancy had been terminated.

The central legal issue was whether the doctrine established in *Strong v. Bird* applied to the facts of this case, specifically concerning a gift of land in Victoria. This doctrine posits that an imperfect gift made by a testator during their lifetime can be perfected by the vesting of the subject matter of the gift in the donee as executor. The court was required to determine if the testator had the requisite intention to make an immediate gift and if that intention remained continuous until his death, and whether the doctrine extended to land in Victoria and to a situation where the donee was one of several executors.

A majority of the High Court, comprising Barton A.C.J., Gavan Duffy, and Rich JJ., held that the doctrine of *Strong v. Bird* requires not only an intention to make an immediate gift but also a continuous intention that the gift should stand and have effect up to the time of the testator's death. They found that, on the evidence, the defendant had not discharged the onus of proving that the testator possessed such a continuous intention. The majority noted that the testator's contemplation of selling the entire property, including the land in question, and his discussions regarding the defendant's responsibility for the mortgage and transfer fees, indicated a lack of a settled and continuous intention to make an immediate and unconditional gift. Isaacs and Powers JJ. dissented, holding that the intention to perfect the gift need not be continuous throughout the entire period between the imperfect gift and the perfecting act, but only that the final act must be done with the continuing intention to perfect the originally intended gift.

The High Court, by a majority, reversed the decision of the Supreme Court of Victoria. The appeal was allowed, and the plaintiffs were granted judgment for possession of the land.