Construing a will; the centennial of Fell v Fell

Sir Isaac Isaacs came from humble beginnings with few material advantages, he made a lasting contribution to Australia through application and hard work and seizing every opportunity made available to him. At 15 he became a pupil teacher and taught at Beechworth Grammar School.

Moving to Melbourne, in 1875, Isaacs studied law at the University of Melbourne while working full-time. Known for his photographic memory, accurate citation of cases, and the law reports in which they could be found, at 27 Isaacs was admitted to the Victorian Bar supplementing his professional income by reporting cases for the Melbourne newspapers.

Elected to the Victorian Legislative Assembly in 1892, Issacs served as Solicitor General and Attorney General before entering the new Federal parliament at the 1901 election. Isaacs was appointed Attorney General of Australia in 1905, leaving politics in 1906 when appointed to the High Court.

Isaacs is considered one of the greatest Australian judges and his legal talent and knowledge are reasons why he is still read today, with his opinions considered a century after he expressed them.

A Court, in my opinion, is not to place itself in the position of a person unaccustomed to the functions of a legal tribunal, and then make the double error of first assuming how he would construe the document, and next adopting as a curial interpretation the construction so assumed.

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaacs has been described as

“a master lawyer and one of the greatest judges in our federal history, and he brought to his work and to the whole of his public life an unflagging and almost inexhaustible energy and a mind of great strength, power and range. He was big in his qualities, and it is unfortunate that some have dwelt so strongly on the defects. For it is certain that he ranks as a major figure in the history of the Australian nation”

Hon. Justice Michael Kirby, ‘Isaac Isaacs – A Sesquicentenary Reflection’, Samuel Alexander Lecture, Wesley College Melbourne, 4 August 2005.


William Jamieson died on 4th August 1920, leaving a Will stating:—

”This is the last will and testament of me William Jamieson at present residing at ‘ Ormiston ’ Kirribilli North Sydney New South Wales I give devise and bequeath unto John H. F. Jeffrey Marguerite, Jeffrey John D. Fell, Hugh Mackinley Fell, Robert A. Fell, Masie Fell, Helen Fell, Jessie Donald Smith, Struan Smith, M. M. Lovegrove, Joseph M. Berry, and hereby appoint David Fell Equitable Build­ings George Street Sydney & Donald Smith dentist 159 Macquarie Street Sydney executors of this my will”

Following a grant of probate the executors David Fell and Donald Smith applied to the Supreme Court of New South Wales for the determination of the following questions:

(1) Whether upon the true construction of the will the defendants and the other persons mentioned as beneficiaries in the will are entitled to partici­pate in the estate of the testator.

(2) Whether upon the true construction of the will there is an intestacy in the estate of the testator.

John Fell and Jessie Smith, two of the beneficiaries submitted that William had frequently said that so far as he knew he had no living relatives.

The Supreme Court held the beneficiaries were not entitled to the estate of the testator, therefore William was intestate; referring the matter to the Master in Equity to inquire as to William’s next-of-kin.

John Fell and Jessie Smith appealed with the High Court finding:

(1) The persons mentioned as beneficiaries are entitled to participate in the testator’s estate in equal shares;

(2) there was no intestacy.

Isaacs prefaced his judgement with the following preliminary observation.

In the judicial construction of instruments, whether wills or deeds or statutes, Courts are not to approach the matter from the standpoint of the hypothetical personage sometimes alluded to as “the man in the street.”

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaac held that a court should not make a double error of assuming how a person unaccustomed to the functions of a legal tribunal, would construe a document and then apply a legal interpretation to that assumed construction.

“We are bound to have regard to any rules of construction which have been established by the Courts, and subject to that we are bound to construe the will as trained legal minds would do.”

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

In Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922) the question was whether, on the construction of the will, if the testator died testate then, since the intended objects of his bounty are clearly designated, no further difficulty exists. Isaacs J concluded that the question should be answered in the affirmative.

As I am differing on a matter of considerable importance from my brother the Chief Justice and also from Street J., the learned primary Judge, I propose to state very explicitly the line of reasoning that has led me to the opinion I have formed.

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaacs J set out 10 incontestable principles a court should follow when construing a will; noting that the bare nomination of an executor is sufficient to make a valid will, as it is presumed the nominated executor will be entitled to use the estate assets to pay the estate debts and testamentary expenses and will be entitled to the residue unless the words of the will clearly express the executor holds the residue for beneficiaries.

In 1930 Isaacs was appointed Chief Justice of Australia an office he held for the shortest period of any Chief Justice. In January 1931 Isaacs was appointed Governor-General.

Issacs was not only the first Australian to hold the office, but also the first Governor-General to be appointed on the recommendation of a dominion Prime Minister to the monarch. When the Scullin government announced its intention to recommend Isaacs it created considerable controversy. Opponents of the appointment believed Issacs was too radical, too centralist-minded, and was a member of a minority religion and culture.

In a judgment dated December 12 2022 the Victorian Supreme Court cited Fell v Fell

The court may, in construing a will, ‘insert missing words which are clearly necessary to give effect to the testator’s intention’.

Alexopoulos v Krasovec [2022] VSC 749 (12 December 2022)


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