Betts v Conolly [1970] HCA 18

High Court of Australia Barwick C.J. Owen and Walsh JJ. Betts v Conolly [1970] HCA 18

ORDER Appeal dismissed. Costs of all parties to the appeal to be paid out of the estate, those of the trustee as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

1970, June 26 Barwick C.J.

A testatrix by her will, which bears the marks of having been prepared by a solicitor for her signature, after giving a small pecuniary legacy, gave, devised and bequeathed—

the rest and residue of my estate both real and personal and of whatsoever kind and wheresoever situate and of or to which I may be seised possessed or entitled at the date of my death unto my Trustees upon trust that my Trustees shall sell call in collect and convert into money the said real and personal property at such time or times and in such manner as they shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property during such period as they shall think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss and my Trustees shall out of the moneys to arise from the sale calling in and conversion of or forming part of my said real and personal property pay my funeral and testamentary expenses (including all probate estate and other duties payable in respect of my estate or in consequence of my death) and my debts and the legacies given by this my Will or any codicil thereto and shall stand possessed of the residue of the said moneys and the investments for the time being representing the same and of such part of my estate as shall for the time being remain unsold and unconverted (all of which premises are hereinafter referred to as "the residuary trust funds") in trust for Ann Marsden Betts and Geoffrey Marsden Betts until they shall attain the age of twenty one years and if more than one in equal shares and i declare that my Trustees may in their absolute discretion use such part of the principal or income of the expectant share of any infant beneficiary during his or her minority in or towards the benefit education or advancement in life of such infant beneficiary.