McClymont v Hooper - [1973] HCA 2

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan and Menzies JJ.

McCLYMONT v. HOOPER.

(1973) 128 CLR 147

1 March 1973

Will

Will—Construction—Intention of textatrix—Trust of residuary estate until beneficiary attains twenty-one—Whether absolute gift of residue.

Decisions

March 1.
The following written judgments were delivered:-
BARWICK C.J. The testatrix made her last will on 13th July 1946 when she was about forty-six years of age. The will was typed in the following terms:

"This is the Last Will and Testament of me JESSIE MAY HOOPER of Culgoa in the State of Victoria Widow After payment of my just debts funeral and testamentary expenses including State Probate and Federal Estate Duties I GIVE DEVISE AND BEQUEATH all the property both REAL and PERSONAL over which I have any disposing power to my Trustee hereinafter appointed UPON TRUST To stand possessed of my residuary estate upon trust for my nephew PETER EDWARD HOOPER until he attains the age of twenty-one years I EMPOWER my said Trustee to sell call in and convert any part or parts of my real or personal estate as he may deem advisable so to do and to invest any of the proceeds therefrom in any securities authorised by the laws of the Commonwealth of Australia or any of its States or Territories for the investment of trust funds or in Fixed deposits in any Bank in Australia To carry on my business of a General Merchant or any other business in which I may be engaged at the time of my death or to lease the same for such terms and upon such conditions as he may deem advisable To apply from time to time towards the maintenance education advancement or benefit of my said nephew such part of the income from my residuary estate as my Trustee may deem reasonable, I APPOINT ERNEST CHARLES CROSSLEY of Wycheproof in the said State Managing Clerk and Accountant Sole Executor and Trustee of this my Will IN WITNESS WHEREOF I have hereunto set my hand this 13th day of July 1946."

Her nephew at that time was seven years of age. At the date of the death of the testatrix, on 23rd November 1970, he had long attained his majority. We have no information as to who were her relations at that time or what was her association (if any) with them; or even whether she knew who or where they were. (at p150)

2. On an originating summons the Supreme Court of Victoria (Gillard J.) answered in the affirmative the question:

"1. Upon the proper construction of the will of the deceased and in the events that have happened, after payment of her just debts, funeral, testamentary and administrative expenses including State probate duty and Federal estate duty - (a) is the plaintiff beneficially entitled to the estate of the deceased?" (at p150)

3. The Supreme Court founded its answer upon its reading of the words of the will, concluding that the words "until he attains the age…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McClymont v Hooper

Details

AGLC: McClymont v Hooper [1973] HCA 2
Case: [1973] HCA 2
Decision Date: 1 March 1973

CaseChat Overview and Summary

The case of *McClymont v Hooper* concerned a dispute between the appellant, McClymont, and the respondent, Hooper, heard before the High Court of Australia. The central issue revolved around the appellant's claim for damages for personal injuries sustained in a motor vehicle accident.

The High Court was required to determine whether the appellant had established negligence on the part of the respondent as the cause of the accident and, consequently, the appellant's injuries. This involved an assessment of the evidence presented regarding the circumstances of the collision and the conduct of both drivers.

The Court analysed the evidence to ascertain whether the respondent had breached a duty of care owed to the appellant. It considered the principles of negligence, including the foreseeability of harm and the standard of care expected of a reasonable driver. The Court's reasoning focused on the factual circumstances of the accident and whether the respondent's actions or omissions fell below the required standard of care, thereby causing the appellant's injuries.

The High Court found in favour of the appellant, holding that the respondent was negligent and that this negligence caused the appellant's injuries. Consequently, the Court ordered that the appeal be allowed and the judgment of the lower court be set aside, with judgment entered for the appellant.

Orders