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Voges v Monaghan

Voges v Monaghan

Case [1954] HCA 63 18 November 1954

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94 CLR 231

by agreement or inquiry as aforesaid and the sum of £16 10s. Od. (being damages in respect of the con- veyancing costs and stamp duty incurred by the plaintiff in relation to the said contract), and deducting the total thereof from a sum equal to £700 (the amount of the purchase money paid by the plaintiff under the said contract) plus interest on £700 at the rate of five per cent per annum from the date upon which the plaintiff paid the said purchase money until the date determined by the Supreme Court as aforesaid. (2) Subject to the foregoing variations, judgment of the Supreme

Court affirmed, and appeal dismissed with costs. (3) Application by the respondent for special leave to appeal Solicitor for the appellant, L. B. Moynihan. Solicitors for the respondent, D. J. O'Mara &Robinson.

94 CLR 232

[ ] VOGES

MONAGHAN AND ANOTHER

RESPONDENTS. PLAINTIFFS, Will-Absolute bequest of whole estate to legatee-Secret trust imposed on legatee in

favour of other persons.

An elderly testator who died in June 1946 left an estate of approximately £47,000. He was survived by a widow who was eleven years older than he, but by no other dependants. The only other persons who had any sort of moral claim on the testator were M., who had been a servant in his household on low wages from 1911 until the testator's death, and A. his niece by marriage, who was only in a modest financial position and of whom the testator had always been fond. The testator had given both M. and A. to understand that they would be provided for. The testator left his whole estate to v. who was a married woman living with her husband with a grown-up family. She had met the testator about 1926 and by 1943, when he retired as a pharmaceutical chemist, had become very useful to him in the management of his affairs generally. They were in constant contact until the testator's death and she told her in August 1945 that he had made his will and asked her to look after his wife, to which request v. assented. According to V., in October 1945 she had a further conversation with the testator in the course of which he suggested subject to V.'s discretion that she might give three pounds per week each to M. and A. after his death. M. gave evidence that very shortly after the testator's death v. told her that she had to go and get an envelope with the testator's wishes in it and that when she returned she produced a long narrow piece of paper from which she read, observing This is what the testator

wished me to do for you According to M., v. read that M. was to get three pounds per week for life to start from the date of the testator's death and to continue until the date of M.'s death, and then said that M. could not document was one written…

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.

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Details

AGLC: Voges v Monaghan [1954] HCA 63
Case: [1954] HCA 63
Decision Date: 18 November 1954

CaseChat Overview and Summary

The case of *Voges v Monaghan* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The plaintiffs, Annie Monaghan and Ina Answerth, sought declarations that the defendant, Alice Voges, as executrix of the will of George Gill, held the deceased's estate upon trust to pay each of them £3 per week for life. The testator had left his entire estate, valued at approximately £47,000, to Ms Voges, who was not related to him.

The legal issues before the High Court were whether the testator had communicated to Ms Voges his intention that she should pay annuities to the respondents, whether Ms Voges had agreed to or acquiesced in this intention, and whether the testator had made his will in reliance on this understanding. Specifically, the court had to determine if the testator had imposed a secret trust upon Ms Voges, obliging her to pay £3 per week to each respondent for their respective lives, or if these payments were intended to be at Ms Voges' discretion, as she contended.

A majority of the High Court, comprising McTiernan, Webb, Fullagar, and Kitto JJ., affirmed the decision of the Supreme Court. They reasoned that the evidence, including admissions made by Ms Voges and the testimony of the respondent Monaghan, justified a finding that a secret trust had been established. The court applied the principles governing secret trusts, which require intention, communication of that intention to the legatee, and acquiescence or an undertaking by the legatee to carry out the testator's wishes. The majority found that the testator had communicated his intention to Ms Voges, and that she had given assurances that she would fulfil his wishes, leading him to make his will in her favour. Dixon C.J. dissented, expressing reservations about whether the evidence sufficiently established the necessary elements of a secret trust, particularly the certainty of the trust and its communication.

The High Court dismissed the appeal with costs, affirming the judgment of the Supreme Court of Victoria.

Orders