Butlin v Butlin [1966] HCA 4

High Court of Australia Barwick C.J. Kitto and Menzies JJ. Butlin v Butlin [1966] HCA 4

ORDER Appeal allowed. Decretal order of the Supreme Court varied by substituting for the declaration made therein, the following declaration, namely, Declare that upon the true construction of the will of the abovenamed testator George William Butlin deceased and in the events which have happened the plaintiff as executrix and trustee of the said will holds the cottage known as Number 155 Attunga Road Yowie Bay upon trust for herself and the defendants as next of kin of the deceased in the shares and proportions provided for in the case of an intestacy by the Wills, Probate and Administration Act, 1898-1954. Costs of all parties of this appeal to be paid out of the estate, those of the respondent, Constance Butlin, as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

1966, Feb. 25 Barwick C.J.

George Butlin died on 19th April 1962. He was survived by his widow Constance Butlin, three daughters and two sons. His property consisted of real estate, money in a bank account, a motor vehicle and a taxi plate, the whole being valued for probate purposes at £14,889 2s. 6d.

The real estate consisted of two properties, a residence, used by him and his wife as a home for some fifteen years before his death, known as No. 155 Attunga Road, Yowie Bay, and another residence No. 71 Lancelot Street, Five Dock, held by the deceased and his wife as joint tenants.

The taxi plate was valued at £6,700 and was a means of production of income.

Probate of his last will was duly granted to his widow who was thereby appointed his sole executrix and trustee. The will was in the following terms:

This is the last Will and Testament of me George William Butlin of 155 Attunga Road Yowie Bay in the State of New South Wales Retired.