Russell v Scott [1936] HCA 34 | 12 August 1936

ON 12 AUGUST 1936, the High Court of Australia delivered Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 (12 August 1936).

Percy Russell and his elderly aunt opened a joint bank account containing funds to be managed by Russell for the benefit of the aunt. Russell made no contributions.

After the death of the aunt, proceedings were instituted by Scott (a beneficiary under the aunt’s will) seeking a declaration that the balance of the account and some funds withdrawn before the aunt’s death belonged to the estate. The trial judge ruled that the balance of the account did not pass to Russell as the benefit was testamentary in nature and had not been made in accordance with the Wills, Probate and Administration Act 1898 (NSW).

Russell appealed the trial judge’s decision.

The High Court found an intention by the aunt to confer upon her death, through survivorship, legal and beneficial ownership of the funds to Russell.  The court therefore allowed the appeal, dismissing Scott’s action on the grounds that that the funds in question did not form part of the estate.


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