Willett v Futcher

In *Willett v Futcher*, the High Court of Australia considered a dispute concerning the interpretation of a will. The case involved the beneficiaries of the estate of the late Mr. Willett, who sought to understand the distribution of certain assets.

The central legal issue before the High Court was whether the testator's intention, as expressed in his will, was to create a discretionary trust or an absolute gift of the residue of his estate to his wife. This required the Court to examine the specific wording of the relevant clause in the will and to consider established principles of testamentary construction.

The High Court, in a joint judgment, held that the language used in the will did not create a discretionary trust. Their Honours reasoned that the testator's words indicated a clear intention to confer an absolute beneficial interest upon his wife, rather than granting a discretion to trustees to distribute the residue. The Court applied the principle that where the language of a will is clear and unambiguous, it should be given its plain and ordinary meaning, and that the presumption against intestacy does not permit a court to rewrite a will to give effect to an intention that is not expressed. The appeal was dismissed.