Principles of Australian succession law [Third edition.] 9780409345322, 0409345326

Table of contents :
Full Title
Copyright
Preface
Acknowledgments
Table of Cases
Table of Statutes
References
Table of Contents
1. Introduction
Meaning and scope of the law of succession
Meaning of succession law
Terminology in succession law
Probate and administration
Courts of construction
Historical basis
General
Succession to personalty
Succession to realty
Jurisdiction in succession matters
Subsequent developments
Freedom of testation
Succession and property
The family and succession
Other matters
Indigenous perspectives
Comparative succession law
Conflict of laws
Uniform succession laws
The future
2. The General Nature of a Will
Definition and characteristics of a will
Definition
Declaration of intention
Revocability
Takes effect only on death
Ambulatory in nature
Not limited to property
Prescribed form
Unitary in nature
Wills distinguished from other transactions and relationships
Introduction
Settlements inter vivos
Life insurance policies: nominations
Pension and superannuation nominations
Joint tenancies
Joint banking accounts
Donatio mortis causa
Donatio mortis causa: in contemplation of death
Donatio mortis causa: conditional on death
Donatio mortis causa: parting with dominion — delivery
Property the subject of a valid donatio
Contracts relating to wills
Introduction
Contracts to leave legacy
Contracts to leave specific property
Contracts to leave ‘all property’/residue
Contracts not to revoke or alter wills
Contracts and family provision claims
Formalities and enforceability of testamentary contracts
Mutual and joint wills
Mutual wills: introduction
Proof of agreement and other essential elements
Marriage and mutual wills
Joint wills
3. Making a Will — the Mental Elements
Introduction
Age
Mental capacity: sound mind, memory and understanding
Introduction
Test of mental capacity
Lucid intervals
Proof of incapacity
Time for satisfying test of mental capacity
Testamentary intention
General principle
Conditional intention
Knowledge and approval
General
Reading over the will
Summary
Suspicious circumstances
General
Will prepared by beneficiary
Other suspicious circumstances
Severance
‘Suspicious circumstances’ differ from undue influence and fraud
Undue influence
The test
No presumption of undue influence
Onus of proof
Standard of proof
Consequence of undue influence
Difficulty of proof in undue influence cases
Fraud
The problem
The principle
Other cases of fraud
Mistake and statutory rectification of wills
Introduction
Mistake as to legal effect of words used
Error of fact: power to omit words
Examples of courts’ jurisdiction
Limits on Probate Courts’ jurisdiction
No jurisdiction to insert words
Statutory rectification powers
Problem of ‘mirror wills’: execution of wrong wills
Relationships between statutory rectification powers and general principles of construction
Time limits and extensions of time for applications
4. Statutory Wills: Wills for Persons Who Lack Testamentary Capacity
Background
Reasons for statutory wills
Procedure: applicants
Procedure: two-stage process
Statutory conditions for exercise of power
General
Condition one: lack of testamentary capacity
Condition two: the proposed will, alteration or revocation is one or might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity
Condition three: it is reasonable in all the circumstances (or appropriate) that an order should be made
Time statutory will has effect
Costs
5. Making a Will — the Formal Requirements
Introduction
Need for formalities
Formalities
Writing
Requirement of a ‘signature’
Position of the signature
Signing or acknowledgment of signature in presence of two witnesses
Presence of two witnesses
Meaning of attestation and subscription
In presence of testator
Attestation clauses and presumption of due execution
Summary
Judicial dispensing powers
Informal wills
General approach to the legislation
Use of previous authorities
Scope of the dispensing power
Legal criteria
Definition of document
Document must purport to record the testamentary intention of the deceased
Testator intended the document, without more, to operate immediately as a will
General considerations applicable to third requirement
Timing of intention
Admissibility of evidence
Burden of proof
Disqualification of witnesses
The rule
Construction of rule
More than two witnesses
Current position in New South Wales, Queensland, Tasmania and the Northern Territory
Disqualification of interpreters in Queensland
Incorporation by reference
Introduction
Existence of document at date of execution of will
Document referred to as already in existence
Document identified in will
Use of incorporation
Privileged wills
Introduction
Who is a privileged testator?
Rationale
International wills
6. Revocation and Alteration of Wills
Introduction
Revocation by another will or codicil
Express revocation by another will or codicil
Implied revocation by another will or codicil
Revocation by writing declaring intention to revoke
Revocation by actual destruction
General
The act
The intention
Revocation by dealing with a will: New South Wales, Victoria, Queensland, Tasmania and the Northern Territory
Missing wills: presumption of destruction
Dependent relative revocation
General
Examples of dependent relative revocation
Revocation by marriage
Wills in contemplation of marriage
General
Prior legislation
Current law
Wills revoked by marriage: exception relating to powers of appointment and executors and trustees
Revocation by termination of marriage
General
Statutory provisions
Alterations, interlineations and obliterations: amendment of wills
General
Alteration made before execution of will
Alteration duly executed
Obliterations: part of will not apparent
Effect of amendment
7. Republication and Revival
Republication
General
Intention to republish
General effect of republication
Change of persons
Changes in property
Other effects of republication
Some limits on republication
Revival
General
Intention to revive
Effect of revival
8. Construction of Wills
Introduction
The problem
Courts of probate and courts of construction
Rules of construction
General principles of construction
Expressed intention of the testator
Will as a whole to be construed
Usual or ordinary meaning rule
Secondary meanings: dictionary principle
Secondary meanings: surrounding circumstances
Words with more than one usual meaning
Technical words and phrases
Custom
Omissions
Undesigned insertions: ignoring words
Changing and transposing words
Subsidiary principles of construction
General
Golden rule: avoidance of intestacy
The principle: ‘ut res magis valeat quam pereat’
The principle: ‘falsa demonstratio non nocet, cum de corpore constat’
Ejusdem generis
Inconsistency and conflict: ambiguous words do not control a clear gift
Inconsistency and conflict: rule of despair
Inconsistency and conflict: rule in Lassence v Tierney
Admissibility of extrinsic evidence in construing a will
General
Admissibility of extrinsic evidence at common law
Armchair principle
Evidence of intention: equivocations
Statutory modification
Court unable to ascertain meaning
Gifts to persons
General
Person to be ascertained at date of will
Relationships
Legitimacy, adoption, artificial conception and children generally
Spouses
Transgender persons
Class gifts
Gifts of property
General
Will speaks from death as to property
Types of gifts
Specific statutory rules relating to gifts of property
9. Gifts by Will
Introduction
Types of gifts
Specific devises and legacies
General legacies
Demonstrative legacies
Pecuniary legacies
Residuary devises and legacies
Doctrine of ademption
General
Applies only to specific gifts
Changes in nature of gift
Ademption not by testator
Ademption not by testator — specific statutory provisions
Contracts and options
Effect of s 24 of Wills Act (UK) and Australian equivalents
Doctrine of lapse
General
Substitutional clauses
Common law exceptions to doctrine: obligations
Common law exceptions to doctrine: charities
Statutory prevention
Statutory substitution to issue
Class gifts and joint tenancies
Disclaimer
Forfeiture for killing
General
Effect of forfeiture
Statutory modification in New South Wales and Australian Capital Territory
Equitable doctrine of satisfaction
General
Satisfaction of commercial debts by legacies
Satisfaction of portion debts by legacies
Satisfaction of legacies by portions (sometimes called equitable ademption)
Satisfaction of legacies by legacies
Equitable doctrine of election
General
Example
10. Distribution on Intestacy
Definition of intestacy
General
Entitlement on intestacy
Entitlement of surviving spouses
Definition of ‘spouse’
General disposition to surviving spouse
Surviving spouse with no issue of the intestate
Surviving spouse and issue of the intestate
Election by surviving spouse with respect to matrimonial home
Entitlement of issue
General
Definition of ‘issue’
Entitlement of issue
Others entitled
Parents: surviving parent(s) but no surviving spouse or issue
Surviving parent(s) and surviving spouse
Next of kin
The Crown
Doctrine of hotchpot
Indigenous persons’ estates
General
Dedicated intestacy rules: New South Wales, Northern Territory and Tasmania
Queensland and Western Australia
Patterns of distribution: jurisdiction by jurisdiction
General
Australian Capital Territory
New South Wales and Tasmania
Northern Territory
Queensland
South Australia
Victoria
Western Australia
11. Family Provision
Introduction
Applicants: persons eligible to apply
Spouses
De facto spouses, partners, same sex relationships
Children
Dependency: New South Wales and Queensland
Others — including the previous Victorian position
Time limits for application
General
Extensions of time
Criteria in determining entitlement
Twin tasks
General approach to claims
Specific factors
Time for ascertaining adequacy and propriety
Disentitlement: character and conduct of the applicant
General
Time for ascertaining character and conduct
Partial disentitlement
Statements made by testator
Property out of which order may be made
General
Donatio mortis causa
Joint banking accounts
Joint tenancies of real estate
Property distributed in administration
Property subject to contract: testamentary promises
New South Wales: notional estate
Types of relief: orders
Types of orders
Variation of orders
Burden of provision of orders
Contracting out of the legislation
General
Agreements under the Family Law Act 1975 (Cth)
New South Wales: Succession Act 2006 s 95
12. Personal Representatives
Introduction
Appointment of executors
Introduction
Identification of the executor
Testator’s delegation of appointment of executor
Ambiguity as to identity of executor
Appointment of an office-holder
Appointment of partners in a partnership
Substitutional appointments
Limited appointments of executors
Implied appointment of executor: executors according to the tenor
Capacity to act as executor
Inherent jurisdiction of the court: passing over the executor
Minors
Mentally or physically disabled persons
Persons with criminal records
Corporations
Bankrupts and insolvent persons
Assumption and renunciation of office
Assumption of office by executors
Executor de son tort
Transmission of executor’s office: chain of representation
Renunciation of office by executor
Administrators
Appointment of administrators
Jurisdiction of the court
Grants of administration with the will annexed
Grant of general administration
Grants of administration to strangers
Retirement and removal of personal representatives
13. Grants of Representation
Introduction
Grants of representation and the vesting of property
Form and types of grant
Proving the death
Limited grants
Overview of limited grants
Grant of representation with respect to unadministered estate
Grant of administration during the minority of the appointed executor
Grant of administration durante absentia
Grant during incapacity of entitled person
Grant of administration pending suit
Grant of administration ‘for the purposes of the suit’
Miscellaneous grants
Grant ad colligenda bona
Where will is mislaid, outside the jurisdiction or inadvertently destroyed
Cessate grant
Common form and solemn form grants
General
Grant in common form
Grants in solemn form
Revocation of grants
Effect of revocation
Obtaining a grant in a foreign jurisdiction
Resealing of grants
14. The Administrative Process Part 1 — Functions and Duties of Personal Representatives
General
Responsibilities of the personal representative
Assets of the deceased requiring immediate attention
Funeral and disposal of the body
General
Where there is an executor
Where there is an administrator, or where an administrator is not yet appointed
Disposal of ashes
Post-mortem use of body parts
Proving the will
Collecting the assets of the deceased
General
Available assets
Can a personal representative be certain that all of the assets have been received?
Liabilities of the estate
General
Liabilities incurred by the personal representative: funeral expenses
Liabilities incurred by the personal representatives: testamentary and administrative expenses
Liabilities incurred by the personal representative: personal liability
Liabilities incurred by the deceased: torts and contracts
Expediting the ascertainment of liabilities
Conclusive notification of claims against the estate
Compelling a creditor to pursue a claim against the estate
Payment of liabilities of the estate
Priority for payment of debts
Insolvent estates
Applications under Bankruptcy Act 1966
Administration of insolvent estates under state or territory legislation
Solvent estates
General
Priority of assets at common law
Priority of assets under state legislation
Ascertaining whether the testator has excluded the statutory scheme
Property mortgaged or charged by the testator in his or her lifetime — Locke King’s Act
Appropriation and marshalling of assets
Distribution of the estate
General
Intestate estate
Testate estates
Ascertaining the categories of dispositions
Specific legacies
General legacies
Fund from which general legacies are payable
Demonstrative legacies
Residuary gifts
Ademption and other failure of gifts
Completion of administration
General
Transferring assets to beneficiaries
What is an assent?
When is the residuary estate ascertained?
Differences between the office of a legal personal representative and that of a trustee
15. The Administrative Process Part 2 — Powers, Rights and Liabilities of Personal Representatives
Powers
General
Power of sale
Power to carry on business
Power to compromise
Power to employ agents
Power to appropriate assets
Rights
General indemnity
Seeking directions from the court
Right to commission
Liabilities
Rights of beneficiaries during administration
Failure to fulfil duties: devastavit
Administration action: equity
Keeping accounts and records
Relief from liability
Defences
16. Survivorship
Introduction
Commorientes
Legislative provisions
Judicial considerations
Commorientes: 30-day survivorship provision
Commorientes: joint tenancies
Survivorship: presumption of death
Context
General principles
Matters of proof
Relationship between the common law presumption of death and commorientes
Grant of leave to distribute
Position in New South Wales: Trustee and Guardian Act 2009
Index

Citation preview

Principles of Australian Succession Law Third Edition

Ken Mackie LLB (Hons) (University of Tasmania) University Associate in the Faculty of Law, University of Tasmania

LexisNexis Butterworths Australia 2017

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: ISBN: Notes: Subjects: Dewey Number:

Mackie, Ken. Principles of Australian succession law. 3rd edition. 9780409345315 (pbk). 9780409345322 (ebk). Includes index. Wills — Australia. Inheritance and succession — Australia. Probate law and practice — Australia. Estates (Law) — Australia. 346.94054.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition 2007. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Sabon. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface As in the previous editions, the aim of this text is to provide a concise, but reasonably comprehensive, coverage of the current law of succession in Australia. To that end, reference has been made to statutory provisions and authorities in all Australian jurisdictions. It is aimed primarily at the undergraduate law student embarking upon the subject for the first time, but may also prove helpful for others involved in the area of succession, including anyone who has responsibilities in respect to wills, intestacies and deceased estates. The legal practitioner may also occasionally find the book useful although it does not cover the area of estate planning/ taxation. That said, while the book is intended as an introduction to the subject, it is hoped that the fundamental problems existing in the area have been sufficiently addressed. It is also hoped that, whomever the readers, they will find the subject both interesting and stimulating. This year will also see the publication by LexisNexis Butterworths of the second edition of the Law of Succession, which contains an extensive and comprehensive examination of Australian Succession Law. Readers of this text requiring further elucidation of the relevant legal principles are referred to that text. The basic format of the previous editions remains. There has been extensive revision and re-writing in all areas, not only in respect to new developments in succession law, which have been considerable, but also with a view to making the law less technical and more accessible (without forsaking accuracy). I would like to thank the publishers, LexisNexis Butterworths, who, as always, have been helpful and encouraging. Thanks also to Gabrielle Sauvage, who made a huge contribution to a difficult manuscript. The staff of the

University of Tasmania Law Library likewise deserve acknowledgement for their wonderful assistance. I would like to give special thanks to my friend and colleague, Dr Julia Davis, whose support and encouragement over the years has been outstanding. Finally, I would like to express many, many thanks to my daughter Rose, always a believer. I have attempted to state the law as it was available to me as at 1 January 2017. This edition is dedicated to the memory of the late Emeritus Professor Frank Bates AM. An inspirational colleague and a wonderful friend. Ken Mackie Hobart 2017

Acknowledgments The authors and publisher are grateful to the holders of copyright in material from which extracts appear in this work, particularly to the following: All England Annual Review of Law 2005, extract from Sherrin. Reproduced by permission of Reed Elsevier (UK) Limited, trading as LexisNexis Butterworths. Lee, extracts from Manual of Queensland Succession Law. Reproduced by permission of the Lawbook Co, part of Thomson Legal & Regulatory Limited . Margrave-Jones, C V, extracts from Mellows Law of Succession. Reproduced by permission of Reed Elsevier (UK) Limited, trading as LexisNexis Butterworths. While every care has been taken to establish and acknowledge copyright, the publisher tenders apologies for any accidental infringement. The publisher would be pleased to come to a suitable arrangement with the rightful owner in each case. The legislation reproduced in this work does not purport to be an official or authorised version.

Table of Cases References are to paragraph numbers

A Aaron v Griffiths [2008] WASC 26 …. 5.18 Abbott v Middleton (1858) 7 HLC 68; 11 ER 28 …. 8.4 Aboud v Aboud [1960] NSWR 498 …. 8.14 Adam, Will of [1921] VLR 492 …. 14.35 Adams, In the Goods of (1872) LR 2 P D 367 …. 5.3 Adams, Re [1990] Ch 601 …. 6.31, 6.32 ADT v LRT [2014] QSC 169 …. 4.12 Ahchay, Re Will of (1996) 6 Tas R 369 …. 8.32 Ahern, Re [1951] QWN 32 …. 12.20 Albert (decd), Re [1967] VR 857 …. 16.11, 16.12 Alexander’s Will Trusts, Re [1948] 2 All ER 111 …. 8.21, 8.25 Allan, In Estate of (Needham AJ, 24 September 1990, unreported) …. 5.21 Allan, In the Will and Estate of [1912] VLR 286 …. 13.5, 14.45 Allan v Morrison [1900] AC 604 …. 6.9 Allardice v Allardice (1910) 29 NZLR 959 …. 11.10 Allen, In Will of [1987] QLR 860 …. 8.25 Allen v Crane (1953) 89 CLR 152 …. 8.10 — v McPherson (1847) 1 HL Cas 191; 9 ER 727 …. 3.23, 8.2 — v Maddock (1858) 11 Moo PCC 427; 14 ER 757 …. 5.38, 5.39 Alleyn (decd), Re [1965] SASR 22 …. 8.19 Allgood v Blake (1873) LR 8 Exch 160 …. 8.6, 8.25 Amiet, In the Goods of (1864) 1 WW & A’B (I E & M) 65 …. 12.3

Amyot v Dwarris [1904] AC 268 …. 8.30 Anderson, Will of (1958) 78 WN (NSW) (Pt 1) 334 …. 5.42 Anderson v Anderson (1872) LR 13 Eq 381 …. 5.31, 7.6 — v Teboneras [1990] VR 527 …. 11.10 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 …. 11.9, 11.10 Andrews, In the Will of (1885) 11 VLR 116 …. 12.8 Andrews, Re (1936) 56 CLR 1 …. 8.12 Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610 …. 8.35 Anketell, Re (1888) 14 VLR 111 …. 12.6 Anon (1601) Gouldsb 149; 75 ER 1057 …. 14.25 ANZ Trustees Ltd v Hamlet [2010] VSC 207 …. 3.36, 3.39 Aoun v Clark [2000] NSWSC 274 …. 6.8 Application for Grant of Presumption of Death, Re; Ex parte Jenkins [2008] WASC 49 …. 16.12 Arnot v Chapman (1884) 5 LR (NSW) Eq 66 …. 13.19 Ashhurst v Moss (2006) 14 VR 291 …. 11.8 Ashton, Re [1897] 2 Ch 574 …. 9.29 Astrage v Pepper [1970] 1 NSWLR 542 …. 3.12 Atkins, as Executor of Godfrey v Godfrey [2006] WASC 83 …. 15.9 Attenborough v Soloman [1913] AC 76 …. 14.43, 14.45 Atter v Atkinson (1869) LR 1 P&D 665 …. 3.7 Austin v Beddoe (1893) 41 WR 619 …. 14.43 Australian Executor Trustees Ltd v Casanova [2005] SASC 93 …. 3.35 Axon v Axon (1937) 59 CLR 395 …. 16.9, 16.10 Aynsley, Re (The Times, February 1973) …. 6.8 B Baes, Estate of [2012] SASC 217 …. 6.32 Bailey, In Goods of (1838) 1 Curt 914; 163 ER 316 …. 5.4 Bailey v Bailey (1924) 34 CLR 558 …. 3.3, 3.4, 3.7, 3.8 — v Richardson [2015] VSC 255 …. 4.4, 4.9 Baird v Baird [1990] 2 WLR 412 …. 2.13

— v Smee [2000] NSWCA 265 …. 2.29 Baker, In Will of (1922) 39 WN (Pt 1) (NSW) 257 …. 6.31 Baldwin and Neale v Greenlands [2006] QCA 293 …. 12.26 Bales, Re [1908] QWN 31 …. 13.3 Ballman, Re; Ex parte Garland (1804) 10 Ves 110 …. 15.3 Banks, Re [1905] 1 Ch 547 …. 14.25 Banks v Goodfellow (1870) LR 5 QB 549 …. 3.4, 3.5, 4.6 — v National Westminster Bank plc [2005] EWHC 3479 …. 9.11 Barber, Re (1886) 31 Ch D 665 …. 5.31 Barbetti v Attorney-General [2006] WASC 157 …. 9.18 Barker, Re [1995] 2 VR 439 …. 6.2 Barnes’s Will Trusts, Re [1972] 2 All ER 639 …. 8.9 Barnett v Earl of Guildford (1855) 11 Exch 19; 156 ER 728 …. 13.1 Barns v Barns (2003) 214 CLR 169; 196 ALR 65 …. 2.26, 11.22 Barraclough, Re [1965] 2 All ER 311 …. 13.17 Barrett (dec’d), Estate of (2013) 11 ASTLR 218 …. 3.35 Barry (decd), Re; Circosta v Executor Trustee and Agency Co (SA) Ltd (1974) 9 SASR 439 …. 11.8 Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 …. 3.7, 3.11 Barthold, In the Will of (1895) 21 VLR 107 …. 13.8 Bartholomew v Henley (1818) 3 Phillim 317; 161 ER 1337 …. 2.9 Basan v Brandon (1836) 8 Sim 171 …. 9.11 Basterfield v Gay (1994) 3 Tas R 293 …. 11.4 Bate, Re [1947] 2 All ER 418 …. 16.4 Batemans Will Trusts, Re [1970] 3 All ER 817 …. 5.37 Bates v Messner (1967) 67 SR (NSW) 187 …. 12.26, 13.17 Batey v Potts (2004) 61 NSWLR 274 …. 9.26 Bath v British & Malayan Trustees Ltd (1969) 90 WN (NSW) 44 …. 12.22 Batten Singh v Amirchand [1948] AC 161 …. 3.8, 3.15 Baumanis v Praulin (1980) 25 SASR 423 …. 5.21 Baylis, In the Goods of (1862) 2 Sw & Tr 613; 164 ER 1135 …. 12.5 Baylis, In the Goods of (1865) LR 1 P&D 21 …. 12.3

Bayliss v Public Trustee (1988) 12 NSWLR 540 …. 2.20 Beadle, Re [1974] 1 All ER 493 …. 5.5, 5.8 Beames, Re (1979) 22 SASR 595 …. 9.13 Bean, In the Estate of [1944] P 83 …. 5.5 Beaumont, Re [1902] 1 Ch 889 …. 2.19 Bechara v Bechara [2016] NSWSC 513 …. 5.17, 5.20, 5.26 Beech, Estate of [1923] P 46 …. 3.29 Belcasto v Belcasto [2004] WASC 111 …. 5.14 Bell v Crewes (2011) 5 ASTLR 298; [2011] NSWSC 1159 …. 5.21 — v Fothergill (1870) LR 2 P & D 148 …. 6.6 Benjamin, Re; Neville v Benjamin [1902] 1 Ch 723 …. 16.12 Bennet, Re [1957] VLR 113 …. 8.26 Bennett, Re [2006] QSC 250 …. 13.3, 16.8 Bennett v Bennett [1934] WN (E) 177 …. 2.24 Benney v Jones (1991) 23 NSWLR 559 …. 11.5 Bentley v Brennan [2006] VSC 113 …. 11.10 Bercovitz, Re [1961] 2 All ER 481 …. 5.8 Berger, Re [1989] 1 All ER 591 …. 5.3 Berger (decd), Re [1990] Ch 118 …. 2.4 Berry, Re; Equity Trustees Executors & Agency Co Ltd v Berry [1954] VLR 557 …. 14.36 Betts v Conolly (1970) 120 CLR 471 …. 8.12 — v Doughty (1879) LR 5 PD 26 …. 3.23 Beyfus v Lawley [1903] AC 411 …. 14.21 Bickford v Benson [2015] WASC 161 …. 16.12 Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 …. 2.28 Birch v Birch (1848) 1 Pob Eccl 675; 163 ER 1175 …. 6.29 — v — [1902] P 130 …. 13.17 — v Treasury Solicitor [1951] Ch 298 …. 2.19 Bird v Bird (2013) 11 AST LR 225; [2013] NSWCA 262 …. 15.11 — v Luckie (1850) 8 Hare 301; 68 ER 375 …. 3.3, 8.6 Birmingham v Renfrew (1937) 57 CLR 666 …. 2.27, 2.28, 2.29

Bisdee v Smith [2004] TASSC 152 …. 5.33 Bisset, Re [2016] QDR 211 …. 9.23 Blackwell, In the Goods of (1877) 2 PD 72 …. 12.3, 12.5 Bladen, Re [1952] VLR 82 …. 5.9, 5.10 Blair v Blair (2004) 10 VR 69 …. 11.10, 11.11 Blakely (dec’d), Estate of (1983) 32 SASR 473 …. 3.38, 5.18 Bleckly, Re [1951] Ch 740 …. 8.35 Blore v Lang (1960) 104 CLR 124 …. 11.11 Blundell, Re [1906] 2 Ch 222 …. 9.29 Boardman, In Will of (1879) 5 VLR (IP & M) 70 …. 12.20 Bock, Re (unreported, SC(Qld), de Jersey CJ, 23 September 2010) …. 4.11 Boehm, Goods of [1891] P 247 …. 3.31 Bohrmann, Estate of [1938] 1 All ER 271 …. 3.5 Booth, Re [1926] P 118 …. 5.40 Boothman, Re; Ex parte Trigg [1999] WASC 102 (unreported, SC(WA), Owen J, 27 January 1999) …. 14.4 Bone, Re (1895) 1 ALR 132 …. 12.6 Boreham v Prince Henry Hospital (1995) 29 ALJR 179 …. 3.7, 3.8 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 …. 11.10 Boulton v Sanders (2004) 9 VR 495 …. 4.4, 4.8, 4.9, 4.12, 4.14 — v — (No 2) [2003] VSC 409 …. 4.14 Bowen v Phillips [1897] 1 Ch 174 …. 12.16 Bowler v Bowler (unreported, SC (NSW), 7 June 1990, Young J) …. 12.11 Boyd (decd), In Will of; Ex parte Whelan (1959) SR (NSW) 369 …. 6.9 Boyes v Cook (1880) 14 Ch D 53 …. 8.24 Boyse v Rossborough (1857) 6 HL Cas 1 …. 3.19, 3.20, 3.22 Brand v Brand (unreported, SC(NSW), 10 December 1991, Rolfe J) …. 3.12 Brasier, In Goods of [1899] P 36 …. 6.31 Brassington, In Goods of [1902] P 1 …. 6.7, 6.9 Bravda, In Estate of [1968] 1 WLR 479; [1968] 2 All ER 217 …. 5.31, 5.32, 5.33 Breen, Re [1933] VLR 455 …. 11.25

Brennan v Permanent Trustee Co of New South Wales (1945) 73 CLR 404 …. 8.3 Brian, In Estate of [1974] 2 NSWLR 231 …. 7.9 Bridgewater v Leahy (1998) 194 CLR 457 …. 11.17 Bright v Larcher (No 2) (1859) 4 De G & J 608; 45 ER 236 …. 14.25 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 3.35, 5.29 Brinkotter v Pelling [2006] VSC 101 …. 11.11 Brock, Re Estate of; Chambers v Dowker [2007] VSC 415 …. 5.12, 5.14, 5.15, 5.23, 5.25, 5.29 Brokenshire, Re; Equity Trustee Co Ltd v Worts [2001] VSCA 235 …. 3.7 Broomhead, Re [1947] VLR 319 …. 6.9, 6.11 Brown, In the Will of (1878) 4 VLR (IP & M) 47 …. 12.10 Brown, Re [1952] St R Qd 47 …. 11.12 Brown, Re [2009] SASC 345 …. 4.2, 4.8, 4.13 Brown, Re Application of; Estate of Springfield (1991) 23 NSWLR 535 …. 5.17, 5.21 Brown (decd), Re Estate of (2010) 106 SASR 516 …. 4.13 Brown v Brown (1993) 31 NSWLR 582 …. 9.29 — v Heffer (1967) 116 CLR 344 …. 9.8, 9.13 Brownlee, Re [1990] 3 NZLR 243 …. 11.19 Bruce, Re [1979] Tas R 110 …. 8.32 Brush (decd), Re [1962] VR 596 …. 16.4 Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369 …. 4.2, 4.4 Bryden, Re [1975] Qd R 210 …. 3.13 Buchanan v Milton [1999] 2 FLR 844 …. 14.5 Bull v Fulton (1942) 66 CLR 295 …. 3.5, 3.7 Buckland, Re [1966] VR 404 …. 11.11 Buckland (No 2), Re [1967] VR 3 …. 11.16 Buckley v Barber (1851) 6 Exch 164; 155 ER 498 …. 12.18 Bullock, Re (1932) 5 ABC 241 …. 15.3 Bunting, Re [1974] 2 NZLR 219 …. 5.31 Burge v Burge [2015] NSWCA 289 …. 5.24

Burgess, Re [1984] 2 Qd R 379 …. 11.8, 11.21 Burke v Burke [2015] NSWCA 195 …. 11.9, 11.11 Burns v Estate of Burns (2013) I ASTLR 326 …. 4.10 Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 …. 5.31 Burr, Re [1988] 1 Qd R 23 …. 11.4 Burton v McGregor [1953] NZLR 487 …. 6.12, 6.14 Butlin v Butlin (1966) 113 CLR 353 …. 8.12 Bywater, Re (1881) 18 Ch D 17 …. 8.21 C C (a patient), Re [1991] 3 All ER 866 …. 4.8, 4.10 Cadell v Wilcocks [1898] P 21 …. 6.3 Cahill v Rhodes [2002] NSWSC 561 …. 6.9 Cain v Moon [1896] 2 QB 283 …. 2.19 Calaway v Primrose (1900) 17 WN (NSW) 46 …. 13.3 Callaway, Re [1956] Ch 559 …. 9.25 Callow, Re [1918] VLR 406 …. 5.9 Calma v Sesar (1992) 106 FLR 446 …. 14.3, 14.5 Cameron, Re [1999] 2 All ER 924 …. 9.29, 9.30 Cameron, Re; Nixon v Cameron (1884) 26 Ch D 19 …. 14.36 Campbell, Re [1961] QWN 45 …. 13.17 Campbell, Re [1968] VR 46 …. 14.43 Campton v Hedges [2016] NSWSC 201 …. 5.17 Carey v Norton [1998] 1 NZLR 661 …. 3.24 Carney v Hall (2011) 111 SASR 424 …. 3.24 Cartledge v Heales (1898) 24 VLR 576 …. 2.18 Carr, Re (1867) LR 1 P & D 291 …. 13.5 Carr, Re [1942] QSR 182 …. 16.12 Cassie v Koumans [2007] NSWSC 481 …. 5.18 Casson v Dade (1781) 1 Bro CC 99; 28 ER 1010 …. 5.9 Chalcraft’s Goods, Re [1948] P 222 …. 5.4 Chamberlain v R (No 2) (1984) 153 CLR 521 …. 3.22

— v Williamson (1814) 2 M & S 408; 105 ER 433 …. 14.16 Champion, Re; Dudley v Champion [1893] 1 Ch 101 …. 7.2, 7.5 Chan, Estate of [2015] NSWSC 1107 …. 5.18, 5.33 Chancellor, Re; Chancellor v Brown (1884) 26 Ch D 42 …. 15.3 Chapman, Re; Cocks v Chapman [1896] 2 Ch 763 …. 14.9 Chappel, Re [1864] P 98 …. 12.5 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 …. 11.10 Chard v Chard [1956] P 259 …. 16.9, 16.10 Charter v Charter (1874) LR 7 HL 364 …. 8.25 Chase, Re [1951] VLR 477 …. 6.14 Cheese v Lovejoy (1876) 2 PD 251 …. 6.5, 6.6, 6.8 Cherrington, Re [1984] 1 WLR 722 …. 8.2 Chester, Re (1978) 19 SASR 247 …. 11.27 Chipchase v Chipchase [1939] P 391 …. 16.9 Chomiak, Re Estate of (2012) 112 SASR 245 …. 12.6 Christensen v McKnight (unreported, SC(NSW), Hodgson J, 2 March 1995) …. 9.12 Church v Mason (2013) 12 ASTLR 190 …. 3.12 Cinnamon v Public Trustee (1934) 51 CLR 403 …. 6.29 Clark, In Goods of (1839) 2 Curt 329; 163 ER 428 …. 5.4 Clark, In the Will of (1876) 2 VLR (IP & M) 16b …. 12.10 Clark, In the Wills and Codicil of (1903) 4 SR (NSW) 248 …. 12.9 Clark v Sewell (1744) 3 Atk 96 …. 14.35 Clayton, Estate of (1982) 31 SASR 153 …. 5.14 Cleare v Cleare (1869) LR 1 P&D 655 …. 3.7, 3.11 Clifford, Re [1912] 1 Ch 29 …. 9.10 Clissold, Re [1970] 2 NSWR 619 …. 11.15 Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) …. 5.21 Clore, Re [1982] 3 WLR 228 …. 13.11 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 …. 11.10, 11.11, 11.12 Cobb, Re [1989] 1 Qd R 522 …. 11.5

Cock v Cooke (1866) LR 1 PD 241 …. 2.4 Cockell, Estate of; Cole v Paisley [2016] NSWSC 349 …. 3.3, 3.5, 12.26 Codrington v Codrington (1875) LR 7 HL 854 …. 9.32 Cogan, Re (1912) 31 NZLR 1204 …. 3.33 Cohen, Re [1975] VR 187 …. 13.11 Coleman, Re [1976] Ch 1 …. 6.14 Colless, In Will of (1941) 41 SR (NSW) 133 …. 12.17, 12.18 Collicoat v McMillan [1999] 3 VR 803 …. 11.10, 11.13 Colling, Re [1972] 3 All ER 729 …. 5.2, 5.4, 5.9, 5.12 Collins v Elstone [1893] P 1 …. 6.2 Collins and Tuffley v Elstone [1893] P 1 …. 3.29, 3.31 Collinson v Lister (1855) 20 Beav 365; 52 ER 359 …. 15.3 Comber’s Case (1721) 1 P Wms 766; 24 ER 605 …. 13.1 Comfort, Re [1947] VLR 237 …. 16.4 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 …. 14.44, 14.45, 15.10 Connors v Tasmanian Trustee Ltd (1996) 6 Tas R 267 …. 11.4 Cook, In Estate of [1960] 1 All ER 689 …. 5.4 Cook, Re [1948] Ch 212 …. 8.10 Coombes v Ward [2004] VSCA 51 …. 11.10 Cooper v Bockett (1846) 4 Moo PCC 419; 13 ER 365 …. 6.29 — v Dungan (1976) 50 ALJR 539 …. 11.11 Cope v Keene (1968) 118 CLR 1 …. 11.17 Corbett v Newey [1996] 2 All ER 914 …. 3.10 Corin v Patton (1990) 169 CLR 540 …. 2.20 Corser v Cartwright (1875) LR 7 HL 731 …. 15.2 Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223 …. 5.14, 5.18 Couser v Couser [1996] 3 All ER 256 …. 5.7 Cowan, Re [1913] SALR 55 …. 13.7 Cowderoy v Cranfield [2011] WTLR 1699; [2011] EWHC 1616 …. 3.19 Cowen v Truefitt [1899] 2 Ch 309 …. 8.18

Cowin, Re [1968] QWN 3 …. 2.9 Coyle, Re (1888) 14 VLR 793 …. 13.6 Craig v Lamoureux [1920] AC 349 …. 3.19, 3.20 Crane, Re Estate of (2005) 93 SASR 198 …. 12.11 Crane v Crane (1949) 80 CLR 327 …. 8.35 Craven’s Estate, Re [1937] Ch 423 …. 2.17, 2.18 Crawford, Estate of (2004) 90 SASR 119 …. 6.2 Crawley, Re Estate of [2010] NSWSC 618 …. 4.2 Crippen, Estate of [1911] P 108 …. 12.11 Crocombe, Re [1949] SASR 302 …. 8.10 Cross, Estate of (McLelland CJ in Eq, 9 May 1996, unreported) …. 3.39 Crossley (decd), In Estate of [1989] WAR 227 …. 5.29 Crumpe v Crumpe [1900] AC 127 …. 8.5 Curley v Duff (1985) 2 NSWLR 716 …. 6.9 Curran, Re [2010] VSC 455 …. 16.10 Currie, Estate of (2015) 12 ASTLR 361; [2015] NSWSC 1098 …. 5.18 Curry, Re Will of [1945] 46 SR (NSW) 158 …. 5.5 Czapp v Casser and Caldwell [2015] VSC 111 …. 12.26 D D v T (1901) 22 ALT 168 …. 14.37 D (J), Re [1982] Ch 237 …. 4.8, 4.11 Dadd’s Goods, Re (1857) Dea & Jw 290; 164 ER 579 …. 6.6 Dale, Re [1994] Ch 31 …. 2.28 Dallas, Re (1910) 6 Tas LR 65 …. 14.16, 14.20 Dally v Dally [1954] Tas SR 12 …. 8.22 Daly, Estate of (2012) 8 ASTLR 48 …. 3.38 Dancer v Crabbe (1873) LR 3 P & D 98 …. 6.11 Daniels, Re (1918) 87 LJ Ch 661 …. 8.30 Daniels & Allaway v Scrivenor & Pitt [1997] 2 VR 595 …. 9.12 Danish Bacon Co Ltd Staff Pension Fund Trusts, Re [1971] 1 WLR 248 …. 2.13

Darcy, In the Will of (1885) 11 VLR 339 …. 12.10 Darke, In the Goods of (1859) 1 Sw & Tr 516; 164 ER 839 …. 12.15 Darling, Re [1925] SASR 262 …. 15.9 Darrington v Caldbeck (1990) 20 NSWLR 212 …. 12.19, 13.1 Dawson v Fitch (2002) 84 SASR 20 …. 11.21 — v Reid (1915) 113 LT 52 …. 14.37 Davey, Re [1981] WLR 164 …. 4.4 David Wayne Swan, Re (2014) 120 SASR 149 …. 9.18 Davidson, Re [1949] Ch 670 …. 8.7 Davies, In Goods of (1850) 2 Rob 577; 165 ER 1419 …. 5.6 Davies, In the Will of (1879) 5 VLR 93 …. 12.9 Davies, Re [1925] Ch 643 …. 8.37 Davies, Re [1951] 1 All ER 920 …. 5.9, 5.12 Davies v Worthington [1978] WAR 144 …. 9.25 Davis, Goods of [1952] P 279 …. 7.9 Dawes (dec’d), Re Estate of (2011) 112 SASR 117 …. 3.35 Day, In the Goods of (1850) 7 Notes of Cas 553 …. 12.9 Day v Collins [1925] NZLR 280 …. 8.25, 8.33 — v Trig (1715) 1 P Wms 286; 24 ER 391 …. 8.18 Dear, Re [1975] 2 NZLR 254 …. 7.9 Deecke v Deecke [2009] QSC 65 …. 4.11 Deichmann, In the Goods of (1842) 3 Curt 123; 163 ER 676 …. 12.4 DeJager, In the Matter of [2012] SASC 236 …. 4.5, 4.8 Delacour v Waddington (1953) 89 CLR 117 …. 11.13 Delgoffe v Fader [1939] Ch 922 …. 2.19 Dempsey v Lawson (1877) LR 2 P & D 98 …. 6.3 Denger (decd), Re Estate of [2002] TASSC 70 …. 7.9 Devling (decd), Re; Vroland v Devling [1955] VLR 238 …. 8.33 Dewell, In Goods of (1853) 1 Ecc & Ad 103; 164 ER 60 …. 6.30 Dickman v Holley; Estate of Simpson [2013] NSWSC 18 …. 3.15 Dillon v Public Trustee [1941] AC 294 …. 2.26, 11.22 Dillon’s Infants, Re (1891) 7 WN (NSW) 131 …. 13.6

Dimos v Skaftouros (2004) 9 VR 584 …. 12.26 Dippert, Re Estate of [2001] NSWSC 167 …. 3.35, 3.39 Dixon, In the Estate of [1969] 2 NSWR 223 …. 16.11 Dixon v Treasury Solicitor [1905] P 42 …. 6.11 D’Kugodondho’s Goods, Re (1896) 7 QLJ 44a …. 12.24 Dobson, In Goods of (1866) LR 1 P&M 88 …. 3.10 Dobson v North Tyneside Health Authority [1997] 1 WLR 596 …. 14.3 Docker, In the Will of (1976) 27 FLR 345 …. 12.15 Dodd v Lang (unreported, SC(NSW), 20 July 1989) …. 5.4 Doe d Chidgey v Harris (1847) 16 M&W 517 …. 14.43 Doe d Gord v Need (1836) 2 M & W 129; 150 ER 698 …. 8.26 Doe d Hayes v Sturges (1816) 7 Taunt 217; 129 ER 87 …. 14.43 Doe d Hiscocks v Hiscocks (1839) 5 M & W 363; 151 ER 154 …. 8.26 Doe d Perkes v Perkes (1820) 3 B & Ald 489; 106 ER 740 …. 6.6 Doherty v Doherty [2006] QSC 257 …. 14.6 Dolling, Re [1956] VLR 535 …. 16.12 Donner’s Estate, Re (1917) 34 TLR 138 …. 5.43 Donnolley v Clarke [2008] NSWSC 522 …. 3.35 Donohue, In the Will of [1944] QWN 8 …. 13.7 Doodeward v Spence (1908) 6 CLR 406 …. 14.3 Dore (as Executor of the Will of Chenhall dec’d) v Billinghurst [2006] QSC 140 …. 3.15 Dorman, Re [1994] 1 WLR 282 …. 9.11 Doughan v Straguszl [2013] QSC 295 …. 4.12 Douglas-Menzies v Umphelby [1908] 2 AC 224 …. 2.8 Dow v Hoskins [2003] VSC 206 …. 14.5 Dowse v Gorton [1891] AC 190 …. 15.3 Doyle v Blake (1804) 2 Sch & Lef 231 …. 12.17 Drawmer, In the Estate of (1913) 108 LT 732 …. 12.14 Dufficy v Mollica [1968] 3 NSWR 751 …. 2.16, 2.18, 2.19 Dun v Dun [1959] AC 272 …. 11.12 Dunbar v Plant [1997] 4 All ER 289 …. 9.26

— v — [1998] Ch 412 …. 9.26 Dunn, Estate of; Anderson v Scrivener [2002] NSWSC 900 …. 5.23 Dunn v Dunn (1866) LR 1 P & D 277 …. 7.2 Durance, Re (1872) LR 2 P & D 406 …. 6.4 Durrant v Friend (1852) 5 DeG & Sm 343; 64 ER 1145 …. 9.8, 9.10 Dutton, In Goods of (1863) 3 Sw & Jr 66; 164 ER 1197 …. 6.6 E E, CW, In the Matter of [2015] SASC 80 …. 4.5, 4.8 Eagles, Re [1990] 2 Qd R 501 …. 5.13 Easterbrook v Young (1977) 136 CLR 308 …. 11.8, 11.21 Eatles v Gundy [2015] 2 Qd R 559 …. 10.18 Edgar, Re [1919] VLR 683 …. 5.43 Edmondson’s Will Trusts, Re [1972] 1 All ER 444 …. 8.35 Edwards, Re [1958] Ch 168 …. 9.33 Edwards, Re (1890) 63 LT 481 …. 8.37 Edwards v Edwards (2009) 25 VR 40 …. 2.3 — v State Trustees Ltd [2016] VSCA 28 …. 9.24 Egan (decd), Re [1963] VR 318 …. 13.15 Ekert v Mereider (1993) 32 NSWLR 729 …. 9.25 Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 …. 9.30 Elliot v Joicey [1935] AC 209 …. 8.32 Elliott v Elliott (1841) 9 M&W 23; 152 ER 11 …. 14.43 England, Re the Will of (1900) 22 ALT 86 …. 13.16 Ensor v Frisby [2010] 1 Qd R 146 …. 9.11, 9.12 Epheser (dec’d), Re Estate of [2008] SASC 311 …. 3.35 Equity Trustees Ltd v Levin [2004] VSC 203 …. 5.21 Estate Moran; Teasel v Hooke [2014] NSWSC 1839 …. 5.20 Eteson, In Will of (1927) 28 SR (NSW) 119 …. 7.2, 7.6 Evans, Re [1909] 1 Ch 784 …. 8.37 Evans v Angell (1858) 26 Beav 202; 53 ER 874 …. 8.25 — v Brunskill (unreported, SC (NSW), Bryson J, 19 February 1988) …. 8.32

Evelyn, Ex parte (1833) 2 My & K 3; 39 ER 846 …. 13.8 Everest, Re [1975] 1 All ER 672 …. 6.6 Everett, Re [1944] Ch 176 …. 8.9 F Fairweather v Fairweather (1944) 69 CLR 121 …. 7.7, 9.13 Fast v Rockman [2013] VSC 18 …. 5.23, 5.29 Fawcett v Crompton [2010] NSWSC 219 …. 3.35 Fegan, Re [1928] 1 Ch 45 …. 14.28 Fell v Fell (1922) 31 CLR 268 …. 8.5, 8.12, 8.16 Fenwick, Re [1972] VR 646 …. 3.11, 3.12, 3.13 Fenwick, Re (2009) 1 ASTLR 440 …. 4.10 Fenwick, Re; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 …. 4.1, 4.2, 4.4, 4.6, 4.7, 4.9, 4.10, 4.11, 4.12 Ferguson, Re (1896) 2 ALR 155 …. 12.25 Fernie, In the Goods of (1849) 6 Notes of Cas 657 …. 12.7 Ferrall (decd), Re Estate of (2011) 111 SASR 79 …. 12.9 Ffinch v Combe [1894] P 191 …. 6.31 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 …. 14.16 Finch v Finch (1867) LR 1 PD 341 …. 6.9 Finn, In Estate of (1935) 105 LJP 36 …. 5.4 Fitzpatrick, Re; Deane v De Valera (1934) 78 Sol Jo 735 …. 8.19 Fleming, Re [1963] VR 17 …. 8.26 Fletcher, Re; Ex parte Papaleo [2001] VSC 109 …. 4.8, 4.9 Flint, Re [2005] NSWSC 560 …. 16.13 Flocas v Carlow and Swift [2015] VSC 221 …. 2.29 Flynn (dec’d), Re [1982] 1 WLR 310 …. 3.8 Foley, Re; Channel v Foley [1952] 53 SR (NSW) 31 …. 14.36 Foss, In the Will of [1973] 1 NSWLR 180 …. 6.14, 6.15 Foster, In the Goods of (1871) LR 2 P&D 304 …. 12.8 Fowler, In the Will of (1906) 23 WN (NSW) 134 …. 12.10

Fowler, Re (1915) 139 LT JO 183 …. 8.37 Fowler v Nield (1961) 61 SR (NSW) 152 …. 14.27, 14.36 — v Willoughby (1825) 2 Sim & St 354; 57 ER 381 …. 14.37 Fraser, In the Goods of (1869) LR 2 P & D 40 …. 6.4 Fraser, Re [1904] 1 Ch 726 …. 7.3 Fred Long & Sons Ltd v Burgess [1950] 1 KB 115 …. 13.1 Freeman v Jaques [2006] 1 Qd R 318 …. 11.4, 11.10 French, In Estate of [1961] SASR 302 …. 8.12 French, Re [1910] P 169 …. 13.5 Fry, In the Goods of (1827) 1 Hagg Ecc 80; 162 ER 514 …. 12.10 Fry v Tapson (1884) 28 Ch D 268 …. 15.5 Fuller v Strum [2002] 2 All ER 87 …. 3.15, 3.17 Fulton v Andrew (1875) LR 7 HL 448 …. 3.7, 3.16, 3.23, 3.27 Furnes, Re [1901] 2 Ch 346 …. 9.30 G Gambling, Re [1966] SASR 134 …. 15.9 Gard, Re [1965] SASR 244 …. 8.18 Gare, Re [1952] Ch 80 …. 8.21 Garland v Dillon [2005] TASSC 111 …. 6.9 Gau v Gau [2014] QCA 303 …. 4.4 — v — (2015) 12 ASTLR 593 …. 4.12 Gaynor (decd), In the Will of [1960] VR 640 …. 11.27 Geddes, Re [1902] QWN 70 …. 12.10 Gell v Gell (2005) 63 NSWLR 547 …. 16.10, 16.13, 16.14, 16.15 Gerlach v Public Trustee (unreported, SC (Tas), Underwood J, No 153/97, 22 December 1997) …. 11.10 Gersbach v Blake [2011] NSWSC 368 …. 11.8 Gertsch, Estate of; Gertsch v Roberts (1995) 35 NSWLR 631 …. 13.1 Gess, Re; Gess v Royal Exchange Assurance [1942] Ch 37 …. 16.12 Ghafoor v Cliff [2006] 1 WLR 3020 …. 13.11 Gibb, Re [1984] 1 NZLR 708 …. 8.25

Gibbs (dec’d), In Estate of (2013) 10 ASTLR 365 …. 6.9 Gibson, In Estate of [1949] P 434 …. 5.7 Gibson, Re (1866) LR 2 Eq 699 …. 9.14 Gifford, Re [1944] Ch 186 …. 8.18 Gilbert (decd), Re Will of (1946) 46 SR (NSW) 318 …. 11.13, 11.14 Gilchrist (decd), Re [1990] SLT 494 …. 9.26 Gill, In the Goods of (1828) 1 Hagg 342 …. 12.22 Gill v Gill [1909] P 157 …. 6.7 Gillard, Re [1949] VLR 378 …. 12.26, 13.17 Gillepsie, Re (unreported, SC(NSW), 25 October 1991) …. 3.38 Gillson, Re [1949] 1 Ch 99 …. 8.11 Girando v Girando (1997) 18 WAR 450 …. 11.8 Glover, In Goods of (1847) 5 Notes of Cases 553 …. 5.4 Godfrey, Re [1944] NZLR 476 …. 5.43 Gonzalez v Claridades [2003] NSWSC 508 …. 9.26 Goodchild, Re [1996] 1 All ER 670 …. 2.25, 2.30 Goodchild, Re [1997] 3 All ER 63 …. 2.29, 2.30 Goodchild v James (1994) 13 WAR 229 …. 11.10 Goode, Re (1974) 24 FLR 61 …. 14.10 Goodman v Windeyer (1980) 144 CLR 490 …. 11.9, 11.10, 11.11, 11.24 Goods and Gillingham, Re [1949] 2 All ER 401 …. 6.19 Goonewardene v Goonewardene [1931] AC 647 …. 7.3 Gordon’s Will Trusts, Re [1978] Ch 145 …. 9.33 Gorton v Parks (1989) 17 NSWLR 1 …. 11.11 Gouk, Re [1957] 1 All ER 469 …. 8.20 Govier, Re [1950] P 237 …. 3.10 Goward, Re [1997] 2 Qd R 54 …. 3.38 Graham (decd), Re Estate of (1978) 20 SASR 198 …. 5.14, 5.20 Graham v Wickham (1863) 1 De GJ & Sm 474; 46 ER 188 …. 2.22 Grant, In the Will and Codicil of (1896) 18 ALT 6 …. 12.8 Grant v Leslie (1819) 3 Phillim 116; 161 ER 1274 …. 12.3, 12.10 Grave v Earl of Salisbury (1784) 1 Bro CC 425; 28 ER 1218 …. 9.29

Graves v Cohen (1929) 46 TLR 121 …. 14.16 Gray v Gray (1904) 29 VLR 1000 …. 14.36 Grayburn v Clarkson (1868) LR 3 Ch App 605 …. 14.20, 14.41 Green, Re [1951] Ch 148 …. 2.30 Green v Tribe (1878) 9 Ch D 231 …. 7.7 Greenaway v McKay (1911) 12 CLR 310 …. 13.9 Green’s Will Trusts, Re [1985] 3 All ER 455 …. 16.12 Gregor v Kemp (1722) 3 Swan 423; 63 ER 926 …. 2.24 Greville v Browne (1859) 7 HLC 689; 11 ER 275 …. 14.36 Grey, Re (1887) 36 Ch D 205 …. 9.10, 14.35 Grey v Harrison [1997] 2 VR 359 …. 11.10 Grey Smith, Re [1978] VR 596 …. 6.3 Griffith (dec’d), Re Estate of; Easter v Griffith (1995) 217 ALR 284 …. 3.4, 3.5, 3.7 Groffman, Re [1969] 2 All ER 108 …. 5.6, 5.11 Grosert, Re [1985] 1 Qd R 513 …. 5.13 Guardhouse v Blackburn (1866) LR 1 P & D 109 …. 3.12, 3.31 Guardian Trust and Executors Co of New Zealand Ltd v Inwood [1946] NZLR 614 …. 3.9, 3.38 — v Darroch [1973] 2 NZLR 143 …. 6.2 Guler v NSW Trustee and Guardian [2012] NSWSC 1369 …. 9.26 Guskett, Re [1947] VLR 212 …. 11.8 Guthrie v Walrond (1883) 12 Ch D 573 …. 9.23 Gwynne (decd), In the Estate of (1988) 48 SASR 209 …. 5.18 H H (decd), Re [1990] Fam Law R 441 …. 9.26 Hackett v Public Trustee (ACT) (1997) 138 FLR 323 …. 11.10 Halbert v Mynar [1981] 2 NSWLR 659 …. 16.11, 16.15 Hall, In Estate of (2011) 120 SASR 1 …. 6.9 Hall, In Goods of (1871) LR 2 P & D 256 …. 6.29 Hall (dec’d), Re [1918] VLR 448 …. 8.19

Hall v Hall (1868) LR 1 P & D 481 …. 3.19 Hamilton, Re [1941] VLR 60 …. 6.14, 6.15 Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312 …. 2.22, 2.25 Hampel, Re [1949] SASR 232 …. 6.11 Hancock v Watson [1902] AC 14 …. 8.22 Harcourt, Re [1921] Ch 491 …. 8.10 Hardgraves, Re [1955] QSR 601 …. 11.14 Hardy, In Estate of [1967] 1 NSWLR 638 …. 12.26 Hardyman, Re [1925] Ch 287 …. 7.3, 7.4 Harneiss v Public Trustee (1940) 40 SR (NSW) 414 …. 2.18, 2.19 Harris, In Estate of [1948] Can Bar Rev 1242 …. 5.3 Harris v Ashdown (1985) 3 NSWLR 193 …. 8.25, 8.32 — v Bennett (2004) 8 VR 425 …. 11.10 Harrison, Re (1885) 30 Ch D 390 …. 8.16 Harrison, Re [2006] All ER 858 …. 8.27 Harter v Harter (1873) LR 3 P & D 11 …. 3.32, 3.33 Hartigan, Re Affairs of; Ex parte the Public Trustee (unreported, SC(WA), Parker J, 9 December 1997) …. 9.11 Hassan (dec’d), Re Estate of (2008) 100 SASR 464 …. 3.10 Hathornthwaite v Russell (1740) 2 Atk 127; 26 ER 480 …. 12.16 Hatsatouris v Hatsatouris [2001] NSWCA 408 …. 5.17, 5.20, 5.21, 5.27 Hausfeld v Hausfeld (2011) 9 ASTLR 535 …. 4.12 Hawes v Burgess [2013] EWCA Civ 74 …. 3.12 Hawkes, Re [2005] VSC 93 …. 3.36 Hawkesley’s Settlement, Re [1934] Ch 384 …. 8.2 Hawkins, Re (1880) 13 Ch D 470 …. 9.23 Hawkins v Blewit (1798) 2 Esp 662; 170 ER 489 …. 2.19 — v Perpetual Trustee Co Ltd (1960) 103 CLR 135 …. 7.3 Hayes’ Will Trusts, Re; Pattinson v Hayes [1971] 2 All ER 341 …. 15.6 Haygarth, Re [1913] 2 Ch 9 …. 8.5 Hearle v Hicks (1832) 1 Cl & Fin 20; 6 ER 823 …. 6.3 Heath, In Goods of [1892] P 253 …. 7.6

Heath’s Will Trusts, Re [1949] Ch 170 …. 7.3 Hedges v Hedges (1708) Prec CL 269 …. 2.16 Helliwell, Re [1916] 2 Ch 580 …. 8.7 Helton v Allen (1940) 63 CLR 691 …. 9.24 Hemburrow, Re [1969] VR 764 …. 3.32, 3.33 Henderson, Re [1996] 1 Qd R 249 …. 6.9, 13.12 Henderson’s Trusts, Re [1969] 1 WLR 651 …. 8.3 Hennekam (dec’d), Re Estate of (2009) 104 SASR 289 …. 3.38 Herszlikowicz v Czarny [2005] VSC 354 …. 11.13 Hewson v Shelley [1914] 2 Ch 13 …. 13.18 Hibbert v Hibbert (1873) LR 15 Eq 372 …. 8.31 Hickey, Re [1925] VLR 270 …. 16.12 Hicks, Re; Trustees Executors & Agency Co Ltd v Hicks (No 2) (1895) 17 ALT 91 …. 14.23, 14.30 Hickson v Humphrey (unreported, SC (Qld), de Jersey CJ, 11 April 2011) …. 4.11 Hickman v Peacey [1945] AC 304; [1945] 2 All ER 215 …. 16.3, 16.4, 16.9, 16.11 Higgins v Dawson [1902] AC 1 …. 8.25 — v Higgins [2005] 2 Qd R 502 …. 11.10 Hill, In Will of [1930] QWN 42 …. 6.2 Hill v Crook (1873) LR 6 HL 265 …. 8.7, 8.32 Hill v Hill [2001] VSC 83 …. 4.2, 4.8 — v — (2013) 11 ASTLR 121 …. 9.26 — v — (No 2) [2001] VSC 135 …. 4.14 Hills, Re Estate of (2009) 263 LSJS 458; [2009] SASC 176 …. 16.9, 16.10 Hills v Mills (1691) 1 Salk 36; 91 ER 37 …. 12.16 Hines, Re Estate of [1999] WASC 111 …. 5.26 Hinsch, In the Will of (1896) 17 LR (NSW) B & P 21 …. 15.6 Hird & Hickey’s Contract, Re [1919] VLR 717 …. 14.45 Hoarey, Re [1906] VLR 437 …. 12.22, 13.5 Hobbes v NSW Trustee and Guardian [2014] NSWSC 570 …. 2.19, 2.20

Hodge, Re [1940] Ch 260 …. 9.23 Hodges, Re [1899] 1 IR 480 …. 15.3 Hodges (dec’d), Re Estate of; Shorter v Hodges (1988) 14 NSWLR 698 …. 3.3, 3.5, 3.7, 5.14 Hodson v Barnes (1926) 43 TLR 71 …. 5.3 Hoff v Atherton [2005] WTLR 99 …. 3.4 Hoffmann v Walters (2007) 98 SASR 500 …. 4.2, 4.4, 4.8, 4.12, 4.14 Hogg v Cook (1863) 32 Beav 641; 55 ER 959 …. 8.31 Holder v Holder [1968] Ch 353 …. 12.17, 12.18 Hollings, In the Will of (1878) 4 VLR (IP & M) 46 …. 12.10 Hollington v Hewthorn [1943] 1 KB 587 …. 9.24 Hoobin v Hoobin [2004] NSWSC 705 …. 6.14 Hood v Attorney-General (WA) [2006] WASC 157 …. 8.26 Hooper, In the Will of (1908) 25 WN (NSW) 147 …. 12.10 Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13 …. 11.10 Hopkins, Re; Dowd v Hawtin (1881) 19 Ch D 61 …. 12.16 Hopwood v Cuthbertson (2001) 10 Tas R 186 …. 8.8, 8.16 Horan, In the Estate of (1936) 53 WN (NSW) 146 …. 13.5, 14.45 Horgan, Re [1971] P 50 …. 12.7 Hornby, Goods of [1946] P 171 …. 5.2 Horne, Estate of (1920) 20 SR (NSW) 531 …. 7.9 Horrel v Whitts (1866) LR (P & D) 103 …. 13.9 Horrocks, Re [1939] P 198 …. 3.32 Horsburgh v White [2006] VSC 300 …. 11.11 Horsford, In Goods of (1874) LR 3 P & D 211 …. 6.31 Horton v Jones (1935) 53 CLR 475 …. 2.27 Houghton, Re [1915] 2 Ch 193 …. 9.24 Houghton, Re; Hawley v Blake [1904] 1 Ch 622 …. 15.4 Houlgrave, Re (1979) 23 SASR 107 …. 8.16 Howard, Estate of (1996) 39 NSWLR 409 …. 16.10 Howard, Re [1944] P 39 …. 6.3 Howling v Kristofferson (unreported, SC(NSW), Cohen J, 14 October 1992)

…. 12.18 Hubbard v Scott [2012] WTLR 29; [2011] EWHC 2750 …. 3.19 Hubbuck (decd), In the Estate of [1905] P 129; 74 LJP 58 …. 12.5 Hudson v Parker (1844) 1 Rob Ed 14; 163 ER 948 …. 5.7 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 …. 11.11, 11.13, 11.16 Hunter, Re [1932] NZLR 911 …. 13.2 Hunter v Hunter (1987) 8 NSWLR 573 …. 11.11 Hurst v Beach (1821) 5 Madd 351; 56 ER 929 …. 9.31 Hutton, In the Will of [1916] VLR 546 …. 14.39 I Iasiello (decd), In Estate of (unreported, SC(Testamentary Causes Jurisdiction), No S4459, 28 March 1994) …. 5.21 Inland Revenue Commissioner v Smith [1930] 1 KB 713 …. 14.44 Itter, In Goods of [1950] P 130 …. 6.31 J Jackson, Re (1902) 86 LT 747 …. 13.3 Jackson, Re [1933] 1 Ch 237 …. 8.25 Jackson and Gill v Paulet (1851) 2 Rob Eccl 344 …. 12.4 Jaguers v Downing [2015] VSC 432 …. 5.14, 5.20 James, In Goods of (1888) 1 Sw and Tr 238; 164 ER 709 …. 6.32 James, In the Estate of (1927) 44 WN (NSW) 157 …. 13.8 James’ Will Trusts, Re [1962] Ch 226 …. 8.6 James v Burdekin [1990] 3 WAR 298 …. 5.29, 6.30 Jane, Re Will of [2011] NSWSC 624 …. 4.10 Jans v Public Trustee [2002] NSWSC 628 …. 9.26 Jaques v Seton (1960) 103 CLR 511 …. 8.33 Jebb, Re [1966] Ch 666 …. 8.25 Jenkins, In Goods of (1863) 3 Sw & Tr 93; 164 ER 1208 …. 5.4 Jenkins v Jones (1866) LR 2 Eq 323 …. 9.11

Jensen, Re [1998] 2 Qd R 374 …. 12.11 Jervis v Wolferstan (1874) LR 18 Eq 18 …. 2.24 Joachim, Re (unreported, SC(Qld), Dutney J, 22 December 2008) …. 4.11 Job v Job (1877) 6 Ch D 562 …. 15.11 Johnson, Re [1931] VLR 60 …. 13.6 Johnson, Re Estate of (2014) 11 ASTLR 562 …. 3.38 Johnson v Buttress (1936) 56 CLR 113 …. 3.20 Johnston, In Estate of (1898) 9 BC (NSW) 13 …. 12.22 Johnston, Re [1962] Tas SR 356 …. 11.15 Johnston, Re [1985] 1 Qd R 516 …. 5.13 Johnston, Re Estate of (2001) 3 ASTLR 599 …. 5.23 Johnston v Mclarn [2002] NSWSC 97 …. 9.8, 9.11 Joliffe v Fera [1973] 2 NSWLR 702 …. 12.19 Jones, Re (1927) 43 TLR 324 …. 12.6 Jones, Re [1942] Ch 328 …. 5.37 Jones, Re [1976] Ch 200 …. 6.11 Jones, Re [1981] 1 All ER 1 …. 5.42 Jones, Re; Noonan v Jones [1978] VR 272 …. 11.21 Jones v Dodd (1999) 73 SASR 327 …. 14.5 — v Public Trustee [2010] NSWSC 350 …. 11.27 — v Public Trustee of Queensland (2004) 209 ALR 106 …. 10.16 Josifovski v Veleski [2013] NSWLR 1103 …. 9.25 K K, In the Matter of the Estate of (1996) 5 Tas R 365 …. 8.32, 10.9 K (decd), Re [1985] Ch 85 …. 9.26 K, JL, In the Matter of [2016] SASC 53 …. 4.5, 4.8 Kantor v Vosahlo [2004] VSCA 235 …. 3.6, 3.7 Kavalee v Burbidge; Hyland v Burbridge (1998) 43 NSWLR 422 …. 11.23 Kavanagh (decd), In the Estate of (1977) 16 SASR 342 …. 12.9 Keane, Re [2011] QSC 49 …. 4.11 Kedzier v Postle [2002] NSWSC 875 …. 5.23, 5.24

Keegan, Ex parte (1907) 7 SR (NSW) 565 …. 13.3 Keene, Re (1967) 86 WN (Pt 1) (NSW) 317 …. 11.17 Keid, Re [1980] Qd R 610 …. 9.25 Keitley, Re [1992] 1 VR 583 …. 9.24 Kelly, Re [1929] SASR 262 …. 3.26 Kelly (decd), In Estate of (1983) 32 SASR 413 …. 5.27 Kelly v Charmer (1856) 23 Beav 195; 53 ER 76 …. 5.3 Kelso, Re [2010] NSWSC 357 …. 4.2 Kempthorne, Re; Charles v Kempthorne [1930] 1 Ch 268 …. 14.24 Kennedy, Re [1920] VLR 513 …. 11.13 Keong v Keong [1973] Qd R 516 …. 6.14 Kerr v Badran [2004] NSWSC 735 …. 3.4, 3.7 Keulzmann v Attorney-General (NSW) (2013) 12 ASTLR 202 …. 3.39 Key (dec’d) Re; Key v Key [2010] 1 WLR 2020; [2010] EWHC 408 …. 3.4, 3.7 Khan, Re [1947] QWN 26 …. 12.6 Khoon Soon, In the Estate of (1882) 8 VLR (IP & M) 47 …. 13.6 Killick, Re [1960] VR 98 …. 7.9 King v Dubrey [2015] EWCA Civ 581 …. 2.17, 2.20 — v Hudson [2009] NSWSC 1013 …. 3.4 King’s Proctor v Daines (1830) 3 Hagg Ecc 218 …. 2.4, 3.9 Kingsbury v Walter [1901] AC 187 …. 8.35 Kirkland’s Will (1887) 4 WN (NSW) 81 …. 13.15 Kirs (decd), Re Estate of (1990) 55 SASR 61 …. 6.30, 13.17 Kitcat v King [1930] P 266 …. 6.2 Kleinsang, Re (1925) 28 SR (NSW) 455 …. 5.3 Knibbs, Estate of [1962] 2 All ER 829 …. 3.9, 5.43 Knight v Knight (1884) 10 VLR (Eq) 195 …. 15.3 Knott, In the Goods of [1920] 2 IR 397 …. 13.8 Kolecki (decd), Estate of [2011] SASC 158 …. 6.9 Kouvakas, Estate of; Lucas v Konakas [2014] NSWSC 786 …. 12.26 L

Labouchere v Tupper (1857) 11 Moo PCC 198 …. 15.3 Ladd, Re [1932] 2 Ch 219 …. 9.16 Lady Truro, In Goods of (1866) LR 1 P & D 201 …. 7.6 Laffan and Downes’ Contract, Re [1897] 1 IR 469 …. 12.6 Lake v Quinton [1973] 1 NSWLR 111 …. 9.30 Lambert v Waters [1954] St R Qd 212 …. 9.28 Lamothe v Lamothe [2006] EHWC 1387 …. 8.27 Landers v Landers (1914) 19 CLR 222 …. 3.8 Langford, Re (1867) LR P & D 458 …. 12.9 Langley v Hawk (1820) 5 Madd 46; 56 ER 812 …. 12.16 Langston, Estate of [1953] P 100 …. 6.14 Langston v Langston (1834) 2 CI & F 194; 6 ER 1128 …. 8.17 Lassence v Tierney [1843-60] All ER Rep 47 …. 8.22 Last, Re [1958] P 137 …. 8.2 Late Ronald Robert Irvine, In the Estate of the; Evans v Gibbs [2015] NSWSC 432 …. 5.20 Laura Angius, Estate of; Angius v Angius [2013] NSWSC 1895 …. 5.20 Lawes v Bennett (1785) 1 Cox Eq Cas 167; 29 ER 1111 …. 9.13 Lawler v Herd (as Executor of Estate of Torrance (dec’d) [2010] QSC 281 …. 3.36 Lawrence, Re [1982] VR 826 …. 12.20 Lawrence v Australian War Memorial [2014] NSWSC 757 …. 6.9 Lawrie v Hwang [2013] QSC 289 …. 4.11 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 …. 12.18 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 …. 6.14, 8.25, 8.33 Le Bon v Lili, Will of Klara Lane [2013] VSC 431 …. 3.8 Le Grand, Re; Timms v Le Grand (1930) 36 ALR 239 …. 14.23 Leach, Re [1948] Ch 232 …. 9.17 Lee v Hearn (2005) 11 VR 270 …. 11.10 Leeburn v Derndorfer [2004] VSC 172 …. 14.6 Leigh’s Will Trusts, Re [1970] Ch 277 …. 14.45, 15.10 Legg v Duncan (unreported, SC(NSW), Needham J, 11 March 1987) …. 3.12

Leguia’s Estate, Re; Ex parte Ashworth [1934] P 80 …. 12.11 Leitch, Re [1997] 1 NZLR 38 …. 9.7 Lenaghan-Britton v Taylor (1998) 100 A Crim R 565; [1998] NSWSC 218 …. 9.26 Lentjes, Re [1990] 3 NZLR 193 …. 9.25 Leonard v Leonard [1902] P 243 …. 6.6 Lepine, Re; Dowsett v Culver [1892] 1 Ch 210 …. 15.6 Leslie v McDowell; Estate of Cummins [2000] NSWSC 727 …. 5.27 Levey, In Will and Codicils of (1884) 6 ALT 117 …. 12.20 Levy, Re [1953] VLR 652 …. 13.16 Lewis, Re [1964] VR 537 …. 9.13 Lewis, Re [1984] 3 All ER 930 …. 8.18 Lewis’ Will Trusts, Re [1937] Ch 118 …. 9.13 Lewis v Balshaw (1935) 54 CLR 188 …. 13.19 Lidderdale, Re (1912) 57 SJ 3 …. 16.10 Lieberman v Morris (1944) 69 CLR 69 …. 11.27, 11.28, 11.29 Lightfoot v Maybery [1914] AC 782 …. 8.16 Lillis v Lillis (1912) 29 WN (NSW) 91 …. 15.3 Lindrea, Re [1953] VLR 168 …. 6.11 Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206 …. 5.14 Lippe v Hedderwicke (1922) 31 CLR 148 …. 6.7 Lister v Smith (1868) 3 Sw & Tr 282; 164 ER 1282 …. 3.9 Littlejohn, In Will and Codicil of (1952) 69 WN (Pt 1) (NSW) 129 …. 7.9, 13.17 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 …. 11.10 Loades-Carter v Loades-Carter (1966) 110 Sol J 683 …. 9.29 Lockery v Ferris (2011) 8 ASTLR 529 …. 3.39 Lohse v Lewis [2004] 2 Qd R 648 …. 11.5 Long v Long [2004] NSWSC 1002 …. 3.35, 3.39 Long and Feaver v Symes and Hannam (1832) 3 Hag Ecc 771; 162 ER 1339 …. 12.17 Lord Chichester v Earl of Coventry (1867) LR 2 HL 71 …. 9.30

Loveday, In Goods of [1900] P 154 …. 12.11, 12.26, 13.5 Low v Guthrie [1909] AC 278 …. 3.21 Lowe, Re [1949] VLR 169 …. 5.43 Loweke, Re [1995] 1 Qd R 615 …. 8.2, 8.16 Lowson v Copeland (1787) 2 Bro CC 156; 29 ER 89 …. 14.9 Lucas, Re [1966] VR 267 …. 5.8 Luck, Re [1977] WAR 148 …. 3.31, 6.2 Lukic, Application of [2015] NSWSC 822 …. 4.10 Lutheran Church of Australia South Australia District Inc v Farmers’ CoOperative Executors and Trustees Ltd (1970) 121 CLR 628 …. 8.6, 8.9 Lutkins v Leigh (1734) Cas Temp Talb 53; 25 ER 658 …. 14.28 Luxton, Re Estate of (2006) 96 SASR 218; [2006] SASC 371 …. 9.24, 12.14 Luxton v Vines (1952) 85 CLR 352 …. 3.22 Lynch (decd), In the Estate of (1985) 39 SASR 131 …. 7.11 Lynch v Bellew and Fallon (1820) 3 Phillim 424; 161 ER 1372 …. 12.9 Lyndon, In Will of [1960] VR 112 …. 12.20 Lyndon v Standbridge (1867) 2 H & N 45; 147 ER 19 …. 8.19 M M, Application of (2000) 50 NSWLR 401 …. 3.2 M, Itz and Others, Re [2009] WTLR 1792 …. 4.10 Macarthur, Re; Corderoy v Macarthur (1907) 24 WN (NSW) 211b …. 14.13 McBean, Re (1973) 7 SASR 579 …. 8.18 McBride v Hudson (1962) 107 CLR 604 …. 9.3, 9.4 9.10, 14.34, 14.35 McCafferey, Re [1938] SASR 403 …. 3.8 McCaig, In the Estate of (1885) 11 VLR 758 …. 13.6 McCauley v McCauley (1910) 10 CLR 434 …. 6.9 McClymont v Hooper (1973) 128 CLR 147 …. 8.12 McCongale v Starkey [1997] 3 NZLR 635 …. 3.38 MacEwan Shaw v Shaw (2003) 11 VR 98 …. 11.10 McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 …. 2.13 McGown, In the Estate of [1947] VLR 113 …. 13.10

McGregor, Estate of (1975) 11 SASR 424 …. 9.7 MacInnes, Re [1935] 1 DLR 401 …. 2.13 McIntosh (No 2 Re); Perpetual Trustee Co Ltd v McIntosh (1902) 2 SR (NSW) (Eq) 247 …. 14.23 Mackay v Mackay (1907) 18 WN (NSW) 266 …. 16.8 McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230 …. 4.11 Mackenzie, In the Estate of [1909] P 305 …. 12.10 McKerracher v McKerracher [2011] NSWSC 1288 …. 12.26 McKinnon v Voigt & Smits [1998] 3 VR 543 …. 3.11, 3.15, 3.21 McLeod v McNab [1891] AC 471 …. 7.9 McNamara, Re Estate of (unreported, 10 April 1992) …. 5.25 McPhail (decd), Re [1971] VR 534 …. 11.21, 14.44 McPherson, Re [1987] 2 Qd R 394 …. 11.8, 11.21 McPherson v Byrne [2013] Qd R 516 …. 3.36 Mahlo v Hehir (2011) 4 ASTLR 515 …. 5.18 Main, In Goods of (1858) 1 SW & Tr 11; 164 ER 606 …. 13.3, 16.8 Male, Re [1934] VLR 318 …. 5.4 Malin, In the Goods of [1905] VLR 270 …. 13.5 Mamikan, In the Matter of [2015] SASC 77 …. 4.5, 4.8 Manktelow v Public Trustee (2001) 25 WAR 126 …. 14.4, 14.5 Manly, In the Goods of (1862) 3 Sw & Tr 56; 164 ER 1193 …. 12.10 Mann, Estate of [1945] P 146 …. 5.5 Mann v Copland (1817) 2 Madd 223; 56 ER 317 …. 14.37 Manners, Re [1949] Ch 613 …. 9.28 Mardon, In Estate of [1944] P 109 …. 7.10 Maria Korp, Re Will of; DeGois v Korp [2005] VSC 326 …. 4.2 Marland (decd), Re [1957] VR 338 …. 11.8 Marley v Rawlings [2012] 4 All ER 630 …. 3.38 — v — [2014] UKSC 2; [2014] 2 WLR 213 …. 3.38 Marryat, Re [1969] QWN 6 …. 6.29 Marsden, In the Goods of (1860) 1 Sw & Tr 542; 164 ER 851 …. 2.9 Marsh v Marsh (1860) 1 Sw & Tr 528; 164 ER 845 …. 7.9

Marshall v Sundin (1989) 16 NSWLR 463 …. 13.1 — v Tasmanian Perpetual Trustees Ltd [2015] TASFC 2 …. 8.16 Marsland, Re; Lloyds Bank Ltd v Marsland [1939] Ch 820 …. 2.25 Marstella, Re [1989] 1 Qd R 638 …. 11.4 Martin, In Goods of (1862) 3 SW & Tr 1; 164 ER 1171 …. 12.19 Martin, In the Will of (1909) 9 SR (NSW) 576 …. 12.10 Mason v Farnell (1844) 12 M&W 674; 152 ER 1369 …. 14.43 — v Tritton (1994) 34 NSWLR 572 …. 10.16 Massey v Smith [2015] QSC 86 …. 5.23 Masters (decd), Re Estate of; Hill v Plummer (1994) 33 NSWLR 446 …. 5.12, 5.14, 5.17, 5.20, 5.24, 5.27, 5.29 Mathews, Re [1989] 1 Qd R 300 …. 5.13 Mathews’ Will Trusts, Re [1961] 3 All ER 869 …. 14.29 Matsis, Re (2012) 8 ASTLR 361 …. 4.11, 4.12 Mavrideros v Mack (1998) 45 NSWLR 80 …. 12.26 Maynard v Estate of Maynard [2015] QSC 144 …. 13.3, 16.8 Mead (decd), In the Estate of (unreported, SC(SA), Williams J, 13 February 1998) …. 5.21 Meier v Bell (unreported, SC(Vic), Ashley J, No 4518/97, 3 March 1997) …. 14.5 Meldrum (decd), Re; Swinson v Meldrum [1952] Ch 208 …. 14.27 Mellino v Wnuk [2013] QSC 336 …. 5.18 Mengel’s Will Trusts, Re [1962] Ch 791 …. 9.33 Menna v Jacobs; Re Estate of Nolan [2004] NSWSC 1191 …. 3.35 Mercer, Re [1964] QWN 26 …. 12.4, 12.15 Mercer, Re [1977] 1 NZLR 469 …. 11.15 Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 …. 13.1 Meyer, Re [1908] P 353 …. 3.9, 3.38 Michell (decd), Re (1971) 2 SASR 312 …. 8.35 Midgley v Midgley [1893] 3 Ch 282 …. 14.20 Miller, Estate of (2002) 233 LSJS 133 …. 3.35 Miller, Re (1889) 61 LT 365 …. 8.19

Miller, Re [1991] 1 Qd R 359 …. 9.13 Miller v Miller (2000) 50 NSWLR 81 …. 5.33 Milnes v Foden (1890) 15 PD 105 …. 2.9 Milroy v Lord (1862) 4 De G F & J 264; 45 ER 1185 …. 2.18 Minister for Families and Communities v Brown [2009] SASC 86 …. 14.5 Miskelly v Arnheim [2008] NSWSC 1075 …. 3.35 Mitchell, Re [1929] VLR 95 …. 8.7 M’Laughlin, In Will of (1885) 7 ALT 34 …. 12.9 M’Leod v Drummond (1810) 17 Ves 152; 34 ER 59 …. 15.2 Moore, Re [1907] 1 IR 315 …. 7.3 Moore v Darton (1851) 4 De G & Sm 517; 64 ER 938. …. 2.19 Monger v Taylor [2000] VSC 304 …. 4.2, 4.4, 4.8, 4.14 Montefiorc v Guedalla (1859) 45 ER 294 …. 9.29 Monteith, In the Will of (1896) 22 VLR 60 …. 13.15 Monty Financial Services Ltd v Delmo [1996] 1 VR 65 …. 12.26 Moore, Re (1845) 3 Notes of Cases 601 …. 13.17 Morant, Re (1874) LR 3 P & D 151 …. 12.20 Mordaunt v Clarke (1868) LR 1 P & D 592 …. 12.17 Morgan, Estate of; The Salvation Army (NSW), Property Trusty v Morgan [2015] NSWSC 194 …. 9.18 Morgan, In the Will of [1950] VLR 335 …. 5.7 Morgan v MacRae [2001] NSWSC 1017 …. 12.26 — v Moore [2000] VSC 94 …. 8.27 — v Thomas (1853) 8 Exch 302; 155 ER 1362 …. 13.1 Morrell v Fisher (1849) 4 Ex 591; 154 ER 1350 …. 8.18 Morris, In the Goods of (1862) 2 Sw & Tr 360; 164 ER 1035 …. 13.6 Morris, Re [1971] P 62 …. 3.12, 3.31, 3.36 Morrison v Carruthers [2010] NSWSC 430 …. 11.5 Mortensen v State of New South Wales (unreported, CA(NSW) 9 December 1991) …. 3.35 Morton, In Goods of (1887) 12 PD 141 …. 6.6 Morton, Re [1963] VR 40 …. 9.13

Moschoudis, Re [2016] VSC 139 …. 6.9 Moss, Re (1977) 77 DLR (3rd ed) 314 …. 9.22 Mountford v Gibson (1804) 4 East 441; 102 ER 900 …. 12.18 Mulhall v Kelly (2006) 1 ASTLR 394; [2006] VSC 407 …. 9.11 Mullick v Mullick (1829) 1 Knapp 245; 12 ER 312 …. 14.13 Mullins v Smith (1860) 1 Drew & Sm 204; 62 ER 356 …. 14.37 Mullins-Tronsyske v Adams (2014) 121 SASR 155 …. 12.26 Mulray v Ogilvie (1987) 9 NSWLR 1 …. 12.17, 12.18 Mundy, In the Goods of (1860) 2 Sw & Tr 119 …. 2.9 Murdoch v Rhind [1945] NZLR 425 …. 14.4 Murray, Estate of [1963] CLY 3621 …. 2.9 Musgrove, In Estate of [1927] P 264 …. 5.10 N Napier, In Goods of (1809) 1 Phill 83; 161 ER 921 …. 12.26, 13.17 Narsi v Bhindi; Estate of Kalyanjt [2008] NSWSC 1160 …. 3.35 Nassim (decd), Re [1984] VR 51 …. 11.8 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 …. 8.25 National Trustees Executors and Agency Co Ltd v Keast (1896) 22 VLR 447 …. 14.25 Nay v Iskov [2012] NSWSC 598 …. 9.25 Neal, Re [1933] ALR 298 …. 14.36 Nelson v Nelson (1994) 33 NSWLR 740 …. 9.29 Neubacher v Good [2003] NSWSC 379 …. 9.25 Newcomb, Re [1934] QWN 45 …. 12.13 Newman v Brinkgreve; Estate of Floris Verzijden [2013] NSWSC 371 …. 5.20 Nicholls, Re [1996] Qd R 179 …. 5.13 Nichols v Nichols (1814) 2 Phill Ecc 189; 161 ER 1113 …. 3.9 Nicholson Re, [2004] QSC 480 …. 9.24 Nicholson v Knaggs [2009] VSC 64 …. 3.19, 3.21, 3.22, 3.24 Nickson, Re [1916] VLR 274 …. 3.23, 3.26

Nicol, In the Will of (1926) 43 WN (NSW) 146 …. 13.6 Nissen v Grunden (1912) 14 CLR 297 …. 15.9 Niven, Estate of (1921) 21 SR (NSW) 702 …. 6.11 Nixon, In the Estate of (1903) 20 WN (NSW) 98 …. 15.14 Newey, Re [1994] 2 NZLR 590 …. 2.29 Nock v Austin (1918) 25 CLR 519 …. 3.7, 3.11, 3.15, 3.18 Nowell v Palmer (1993) 32 NSWLR 574 …. 2.29 NSW Trustee and Guardian v Halsey; Estate of von Skala [2012] NSWSC 872 …. 5.35 NSW Trustee and Guardian v Pittman, Re; Estate of Koltai [2010] NSWSC 501 …. 5.18 NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121 …. 16.4 O Oakes v Oakes (1852) 9 Hare 666; 68 ER 680 …. 14.39 Oberg, Re [1952] QWN 38 …. 5.31 O’Connor, Re [1934] QWN 18 …. 6.31 O’Connor, Re [1948] Ch 628 …. 9.4 Octave Investments Pty Ltd v Knight (1979) 144 CLR 360 …. 15.7 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 64 ALJR 651 …. 14.45, 15.10 Ogilvie v Ryan [1976] 2 NSWLR 504 …. 2.27 Old Colonists Association of Victoria, Re (unreported, SC(Vic), Nathan J, 30 August 1991) …. 12.11 Oldham, Re [1925] Ch 75 …. 2.29 Olive, Re [1989] 1 Qd R 544 …. 14.40 Olsen, Re [1953] VLR 77 …. 12.26 O’Mara, Re (1909) 10 SR (NSW) 67 …. 8.18 O’Mullane, Re [1955] VLR 217 …. 8.18 Orr v Slender (2005) 64 NSWLR 671 …. 9.11 Osborne v Smith (1960) 105 CLR 153 …. 3.32, 13.17

Osbourne v Osbourne [2001] VSCA 228 …. 2.28, 2.29 Oswald, In Goods of (1874) LR 3 P & D 162 …. 6.2 Ovey, Re; Broadbent v Barrow (1885) 31 Ch D 113 …. 14.36 Owen v Public Trustee of Western Australia [2006] WASC 276 …. 5.14 P P, Re [2009] WTLR 651 …. 4.10 Page, In Will of [1969] 1 NSWR 471 …. 5.28, 6.2 Palethorpe v Public Trustee of Queensland (2011) 5 ASTLR 280; [2011] QSC 335 …. 3.36 Pallett, In the Will of (1878) 4 VLR (IP & M) 33 …. 12.10 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 …. 2.23 — v — (1975) 133 CLR 150; 7 ALR 671 …. 2.24 Parfait v Lawless (1872) LR 2 PD 462 …. 3.20 Parker, Re (1995) 2 Qd R 617 …. 16.8 Parker v Felgate (1883) 8 PD 171 …. 3.8 Parkinson, Re; Public Trustee v Tanner [1952] Tas SR 9 …. 9.12 Parkinson (decd), Re Estate of (1988) 143 LSJS 336 …. 5.21, 5.26 Parsons v Parsons 1 Ves Jun 266; 34 ER 714 …. 12.5 Partridge v Equity Trustee Executors & Agency Co Ltd (1947) 75 CLR 149 …. 14.43, 15.11 Paterson (decd), Re [1986] SLT 121 …. 9.26 Pates v Craig (unreported, SC(NSW), Santow J, 28 August 1995) …. 3.12 Paulin, Re [1950] VLR 462 …. 11.13, 11.15, 11.16 Pawlet’s Case (1679) Raym Sir T 335; 86 ER 174 …. 14.35 Payne v Smyth as Litigation Guardian of Welk [2010] QSC 45 …. 4.11 Payten v Perpetual Trustee Co [2005] NSWSC 345 …. 6.3, 6.9 Pearson, Estate of [2014] SASC 77 …. 5.27 Pearson, Re [1963] 3 All ER 763 …. 7.10 Pearson v Pearson (1833) 5 B & Ad 859; 110 ER 1008 …. 14.35 Peebles, In the Goods of; Hall v Nelson (1871) 2 VR (IE & M) 52 …. 12.22 Peipi v Peipi (2013) 12 ASTLR 268 …. 10.3

Pengelly v Pengelly [2008] 3 WLR 66 …. 3.36 Pepperill, Re [1927] St R Qd 154 …. 6.6 Perera v Perera [1901] AC 345 …. 3.8 Perkins v Mickelthwaite (1714) 1 P Wms 274; 24 ER 386 …. 7.4 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 …. 11.10 — v Freedom From Hunger Campaign (1991) 25 NSWLR 140 …. 9.26 — v Gillett [2004] NSWSC 278 …. 9.26 — v Milton (1996) 39 NSWLR 330 …. 5.27 Permanent Trustee Co of NSW Ltd v Temple [1957] SR (NSW) 301 …. 14.27 Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487 …. 3.33 Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 …. 3.3 — v Gilmour [1979] 2 NSWLR 716 …. 8.22 — v Killick (1951) 51 SR (NSW) 36 …. 14.28 — v Permanent Trustee Co (NSW) Ltd (1941) 41 SR (NSW) 264 …. 14.18 Perrin v Morgan [1942] 1 Ch 345 …. 8.3 — v — [1943] AC 399 …. 8.3, 8.4, 8.6, 8.9, 8.25 Perrins, Re; Perrins v Holland [2010] WTLR 1415; [2010] EWCA Civ 840 …. 3.8 Petchell, Re (1945) 46 WALR 62 …. 3.38, 5.5 Petrovski v Nasev; Estate of Janasievska [2011] NSWSC 1275 …. 3.4 Phelan (dec’d), Re [1971] 3 WLR 888 …. 3.31, 6.2 Phetan v Booth (1941) 43 WAR 60 …. 12.26 Phillips, Re [1931] 1 Ch 347 …. 14.10 Phipps v Annesley (1740) 2 Atk 57; 26 ER 432 …. 14.25 Pike v Pike [2015] QSC 134 …. 9.24 Pigot v Gascoin (1616) 1 Brownl 46; 123 ER 655 …. 12.12 Piper v Piper (1886) 5 NZLR 135 …. 8.21 Plaister, Re; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 …. 9.24, 16.4 Playoust v Hornsby (2005) 11 VR 504 …. 8.14 Plowright, Re [1971] VR 128 …. 9.9, 14.35

Pohlner v Pfeiffer (1964) 112 CLR 52 …. 8.37 Poletti v Jones [2015] NSWCA 107 …. 11.9, 11.11 Polyak Estate, Re; Amy v Permanent Trustee [1999] NSWSC 862 …. 5.15, 5.21 Ponder, Re [1912] 2 Ch 159 …. 14.44 Pontifical Society for the Propation of the Faith v Scales (1962) 107 CLR 9 …. 11.10, 11.11, 11.13 Pope, Re (1975) 11 SASR 571 …. 11.11 Popple v Rowe [1998] 1 VR 651 …. 8.32 Porteous v Rinehart (1998) 19 WAR 495 …. 12.11, 12.26 Potter’s Will Trusts, Re [1944] Ch 70 …. 8.21 Pouliot, Re (1984) 30 Man R (2nd) 178 …. 5.16 Powell v Evans (1801) 5 Ves 839; 31 ER 886 …. 14.9 — v Monteath [2006] 2 Qd R 473 …. 11.4, 11.10 — v Powell (1866) LR 1 P & D 209 …. 7.8 Power v Power [2011] NSWSC 288 …. 9.11 Powys v Mansfield (1837) 3 My & Cr 359; 40 ER 964 …. 7.7 Pratt v Mathew (1856) 22 Beav 328; 52 ER 1134 …. 8.18 Prevost (dec’d), Re Estate of; Application of Perry [2004] VSC 537 …. 3.36 Priebe, In the Will of [1915] QWN 3 …. 13.15 Prosper v Wojtowicz [2005] QSC 177 …. 5.37 Proud, Re (1922) 18 Tas LR 10 …. 3.15 Public Trustee, Ex parte; Re Birch (1951) 51 SR (NSW) 345 …. 12.18 Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272 …. 5.18 — v Attorney-General [2004] QSC 328 …. 5.13 — v Bednarczk and Kijas [1959] SASR 178 …. 14.13 — v Bussell (1993) 30 NSWLR 111 …. 2.16, 2.19, 2.20 — v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496 …. 9.18 — v Evans (1985) 2 NSWLR 188 …. 9.24 — v Fraser (1987) 9 NSWLR 433 …. 9.24, 9.25 — v Hayles (1993) 33 NSWLR 154 …. 9.25

— v Kuehn [1983] 1 NSWLR 195 …. 15.9 — v Permanent Trustee Co [2003] NSWSC 556 …. 3.35, 3.39 — v Roberts [1966] SASR 269 …. 8.20 — v Young (1940) 40 SR (NSW) 233 …. 2.19 Public Trustee (NSW) v Fitter [2005] NSWSC 1188 …. 9.26 Public Trustee of Queensland v Public Trustee of Queensland [2015] 1 Qd R 601 …. 9.24 — v Smith [2009] 1 Qd R 26 …. 3.36, 3.40, 8.27 Punchard, In the Goods of (1872) LR 2 P & D 369 …. 12.10 Purnchard’s Will Trusts, Re [1948] Ch 312 …. 8.9 Purton, Re [1943] QWN 33 …. 16.8 Pytt v Fendall (1754) 1 Lee 553; 161 ER 204 …. 12.17 Q Quartermain Estate, Re; Steggall v Quartermain (2009) 2 ASTLR 283 …. 5.24 Queain, Re; Maher v Maher [1967] SASR 124 …. 7.4 Queensland v Byers [2006] QSC 334 …. 9.24 Queensland Trustees Ltd v Ellison [1918] QSR 107 …. 13.12 — v Finney [1904] QWN 21 …. 13.9 R R v Cook; Ex parte C (1985) 156 CLR 249 …. 8.32 R v Kelly [1999] QB 621 …. 14.3 R v R (unreported, SC(NSW), Hodgson CJ, 14 November 1997) …. 9.26 R v Skinner [1972] 1 NSWLR 307 …. 9.23 RAK, Re (2009) 265 LSJS 263; [2009] SASC 288 …. 4.2, 4.8, 4.12 Ralph v Carrick (1879) 11 Ch D 873 …. 10.9 Ramage v Waclaw (1988) 12 NSWLR 84 …. 14.45 Ramsay’s Will (1886) 2 WN (NSW) 66 …. 12.10 Rankine, In the Estate of [1918] P 134 …. 12.15 Rasmanis v Jurewitsch [1968] 2 NSWR 166 …. 9.25 Raul Novosadek, Estate of [2016] NSWSC 554 …. 9.26

Rawack v Spicer [2002] NSWSC 849 …. 3.35, 3.36, 3.37, 3.39 Ray, Re [1936] Ch 520 …. 5.31 Ray v Moncrieff [1917] NZLR 234 …. 11.13 Rayner, Re [1904] 1 Ch 176 …. 8.10 Rees v Hughes [1946] 1 KB 517 …. 14.13, 14.15, 14.16 Reeves, Re; Reeves v Pawson [1928] Ch 351 …. 7.5 Reid, In Goods of (1868) LJ P & M 1 …. 5.37 Revie v Druitt [2005] NSWSC 902 …. 3.4, 3.7, 3.19, 3.22 Riccardi v Riccardi [2013] NSWSC 1288 …. 12.26 Richardson, Re [1920] SALR 24 …. 11.17 Richardson (decd), Re v Lee [2012] 2 Qd R 473; [2011] QSC 409 …. 9.11 Richardson’s Estate, Re (1935) 29 Tas LR 149 …. 2.26 Rider, In Will of (1901) 27 VLR 238 …. 6.29 Ritchie v Magree (1964) 114 CLR 173 …. 8.20 RL v New South Wales Trustee and Guardian (2012) 7 ASTLR 149; [2012] NSWCA 39 …. 9.11 Roberts, Re [1978] 3 All ER 225 …. 6.12 Roberts v Pocock (1798) 4 Ves 150; 31 ER 77 …. 14.37 — v Walker (1830) 1 Russ & M 752; 39 ER 288 …. 14.24 Robertson, In the Estate of (1882) 4 ALT 94 …. 13.6 Robertson, Re [1966] VR 196 …. 8.21 Robertson v Broadbent (1883) 8 App Cas 812 …. 9.3, 14.34, 14.36 — v Smith (1870) LR 2 PD 43 …. 2.4 — v Smith [1998] 4 VR 165 …. 3.11, 3.27 Robinson v Addison (1840) 2 Beav 515; 48 ER 1281 …. 14.35 — v Jones [2015] VSC 222 …. 5.20, 5.26 — v Pett (1734) 3 PWMS 249; 24 ER 1049 …. 15.9 — v Pine Grove Memorial Park Ltd (1986) 7 BPR 15,097 …. 14.3 Roos v Karpenkow (1998) 71 SASR 497 …. 3.16 Rogers (decd), Re [2006] 2 All ER 792 …. 12.7 Rogers v Frank (1827) 1 Y & J 409 …. 12.17 — v Goodenough (1862) 2 Sw & Tr 343; 164 ER 1028 …. 7.8

Roman Catholic Archbishop of Melbourne v Lawler (1934) 51 CLR 1 …. 14.26 Rondahl, Re; Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337 …. 13.9 Rookes, Re; Jeans v Gatehouse [1933] CW 970 …. 14.14 Rosaro, Re [2013] VSC 531 …. 5.20 Rose, In the Will of (1907) 7 SR NSW 201 …. 12.4 Ross, Re (1871) LR 13 Eq 286 …. 10.9 Rowe v Storer [2013] VSC 385 …. 5.29 Rowell, Re Estate of (2006) 95 SASR 536 …. 13.11 Rowlands, Re [1973] VR 225 …. 8.25 Rowlings (decd), Re; Fraser v Thom [2010] VSC 626 …. 16.4 Royal North Shore Hospital v Crichton-Smith (1930) 60 CLR 798 …. 9.28 Royce’s Will Trusts, Re [1959] Ch 191 …. 5.31 Royse, Re [1985] 1 Ch 22 …. 9.25 Ryan, In the Will of (1900) 17 WN (NSW) 45 …. 12.4 Ryan, Re [1990] 3 NZLR 91 …. 13.3 Ryan (decd), In the Estate of (1986) 40 SASR 305 …. 5.17 Ryan v Kazacos (2001) 183 ALR 506 …. 5.14, 5.18, 5.28 Ryder, In the Goods of (1861) 2 Sw & Tr 126; 164 ER 941 …. 12.4 Rumball, Re [1956] Ch 105 …. 8.30 Russell v Perpetual Trustee Co Ltd (1956) 95 CLR 389 …. 8.22 — v Scott (1936) 55 CLR 440 …. 2.10, 2.15, 2.24, 11.19 — v White (1895) 16 LR (NSW) Eq 158 …. 9.29 S S, In the Estate of [1968] P 302 …. 12.14 S, Estate of (2012) 10 ASTLR 422 …. 4.10 S (decd), Re [1996] 1 WLR 235 …. 9.26 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 …. 10.3, 11.9, 11.10 Sadler v Eggmolesse [2013] QSC 40 …. 4.4, 4.11 Saker, Re [1909] P 233 …. 13.5

Saliba v Tarmo [2009] NSWSC 581 …. 2.21 Sallis v Jones [1936] P 43 …. 6.14, 6.15 Sampson, Re [1906] 1 Ch 435 …. 12.4 Sanders, Re [1944] SASR 22 …. 6.30 Sargood, In the Will of; Trustees, Executors and Agency Co Ltd v Sargood (1904) 26 ALT 51 …. 7.5 Saunders v Pedemont [2012] VSC 574 …. 4.4, 4.9 — v Public Trustee [2015] WASCA 203 …. 3.4 Savage v Blythe (1796) 2 Hag Ecc App 150 …. 13.5 Scal v Rawlins [1892] AC 342 …. 8.4 Schaefer v Schuhmann [1972] AC 572 …. 2.21, 2.23, 2.26, 2.27, 11.22 Schartzkopff, Re Estate of (2006) 94 SASR 465 …. 5.15, 5.21, 5.26, 5.29 Schilling, Re [1995] 1 Qd R 696 …. 15.13 Schlesinger v Bowman (2007) 16 Tas R 350 …. 5.14, 5.18 Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 …. 6.2 Schott, In The Goods of [1901] P 190 …. 3.33 Scott, Re [1975] 1 WLR 1260 …. 9.23 Secretary, Department of Human Services v Nancarrow [2000] VSC 450 …. 4.2 Seelander v Rechner (1884) 18 SALR 82 …. 8.32 Seeley v Back [2005] NSWSC 68 …. 3.4 Segelman, Re [1996] Ch 171 …. 3.36 Selbey-Bigge, Re [1950] 1 All ER 1009 …. 5.10 Selby, Re [1952] VLR 273 …. 8.35 Sellon v Watts; Smith v Watts (1861) 9 WR 847 …. 14.37 Sen v Headley [1991] 2 WLR 1308 …. 2.20 — v — [1991] 50 CLJ 404 …. 2.20 Serocold v Hemming (1758) 2 Lee 490; 161 ER 415 …. 7.2 Shaftsbury v Shaftsbury [1716] 2 Vern 747 …. 9.11 Shand v Robinson (1898) 19 LR (NSW) Eq 85 …. 14.39 Shannon, In Will of [1977] 1 NSWLR 210 …. 3.15, 15.9 Shannon v Public Trustee [1970] VR 876 …. 11.8

Sharland, Re [2006] 1 Qd R 362 …. 6.32 Sharman, Re Estate of; Ex parte Versluis [1999] NSWSC 709 …. 5.25 Shaw, In the Estate of [1905] P 92 …. 12.13, 13.8 Shaw v Crichton (unreported, SC(NSW), Powell J, 23 August 1995) …. 3.3, 3.4, 3.5 — v Marten [1901] 1 Ch 370 …. 14.34 Shearn Goods of (1880) 50 LJP 15 …. 6.30 Shepard (decd), Estate of (1982) 30 SASR 1 …. 14.8 Shephard (decd), In the Estate of (1982) 29 SASR 247 …. 6.6, 12.11, 12.17 Shepperd, Re (1893) 5 QLJ 116 …. 2.9 Sherringham, Will of (1901) 1 SR (NSW) 48 …. 15.9 Sherrington v Sherrington [2004] All ER 203 …. 5.10 — v — [2005] All ER 359 …. 5.10 Shirley, Re (1965) 49 DLR (2nd) 474 …. 2.13 Shirt v Westby (1808) 16 Ves 393; 33 ER 1033 …. 14.35 Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450 …. 8.11 Sibley v Cook (1747) 3 Atk 572; 26 ER 1130 …. 9.16 Sikes, Re [1927] 1 Ch 364 …. 8.37, 9.14 Simkin, In Estate of [1950] VLR 341 …. 6.7 Simmons v Rose (1856) 6 De GM 7 G 411; 43 ER 1292 …. 14.24 Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 …. 11.5 Simpson, In the Estate of; In the Estate of Ganning [1936] P 40 …. 13.10 Simpson, Re (1977) 121 SJ 234 …. 3.7 Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466 …. 9.11, 9.12 Singer v Berghouse (1994) 181 CLR 201 …. 11.9, 11.10, 11.27 Singleton v Tomlinson (1878) 3 App Cas 404 …. 5.36 Sinnot, Re [1948] VLR 279 …. 11.11 Sister Albinos, Re [1924] NZLR 880 …. 5.4 Slack v Rogan; Palfey v Rogan ((2013) 85 NSWLR 253; [2013] NSWSC 522 …. 7.11, 11.10 Slade, In Goods of (1869) 20 LT 330 …. 6.9 Slater, Re; Slater v Slater [1907] 1 Ch 665 …. 9.10, 9.11

Slavinskyj, In the Estate of (1988) 53 SASR 221 …. 5.3, 5.18, 5.28 Sleech v Thorington (1754) 2 Ves Sen 560; 28 ER 357 …. 14.34 Smallacombe v Elders Trustee Co Ltd [1963] WAR 3 …. 2.17 Smalley, Re [1929] 2 Ch 112 …. 8.8, 8.25, 8.33 Smart, In Goods of [1902] P 238 …. 5.36, 5.37 Smee v Smee (1879) 5 PD 84 …. 3.5 Smethurst v Tomlin and Bankes (1861) 2 Sw & Tr 143 …. 12.14 Smidmore v Smidmore (1905) 3 CLR 344 …. 8.13 Smith, In Estate of [1972] 2 SASR 477 …. 12.25 Smith, In the Will of [1916] VLR 540 …. 8.37, 9.14 Smith, In the Will of [1975] 6 ALR 123 …. 13.3 Smith, Re (1890) 45 Ch D 632 …. 7.2 Smith, Re [1939] VLR 213 …. 8.2 Smith, Re [1948] 1 Ch 49 …. 8.12 Smith, Re Estate of [2004] NTSC 15 …. 2.6 Smith, Re; Lord v Hayward (1887) 35 Ch D 558 …. 8.32 Smith (decd), Re [2001] 3 All ER 552 …. 9.23 Smith v Crofts (1758) 2 Lee 557; 161 ER 439 …. 12.8 — v O’Neill [2014] NSWSC 1119 …. 3.15 — v Tamworth City Council (1997) 41 NSWLR 680 …. 14.4, 14.6 — v Tebbitt (1867) LR 1 P & D 398 …. 3.5, 3.7 Snider, Re (1974) 46 DLR (3d) 161 …. 10.2 Snowden, In Goods of (1896) 75 LT 279 …. 7.9 Soal (decd), In Goods of (1892) 25 SALR 12 …. 12.8 Soar v Dolman (1842) 3 Curt 121; 163 ER 675 …. 6.32 Solicitor, Re [1975] QB 475 …. 3.15 Sorrell, Re [2015] SASC 68 …. 6.10 Soukup, In the Matter of the Estate of (1997) 97 A Crim R 103 …. 9.24 Southerden, Estate of [1925] P 177 …. 6.10, 6.11 Speight v Gaunt (1883) 22 Ch D 727 …. 15.5 Spencer, Re [2015] 2 Qd R 435 …. 5.14 Spencer (dec’d), Re [2014] 2 Qd R 435 …. 3.8

Spencer v Burton [2015] QCA 104 …. 10.3 Spicer, In Goods of [1949] P 441 …. 5.43 Spinks, Estate of (unreported, SC(NSW), 22 August 1990) …. 3.35, 3.37 Spoehr v Health Services Charitable Gifts Board (2014) 121 SASR 174 …. 3.5 Spooner, Application of; Estate of J J Davis (Hodgson J, 28 July 1995, unreported) …. 3.39 Spratt v Harris (1833) 4 Hagg Ecc 405; 162 ER 1494 …. 12.9 Spratts Goods, Re [1897] P 28 …. 3.10 Stable, Re [1919] P 7 …. 5.43 Stahlschmidt v Lett (1853) 1 Sm & Giff 415; 65 ER 182 …. 14.20 Staib v Powell [1979] Qd R 151 …. 2.25, 2.27 Stainton v The Carron Co (1854) 18 Beav 146; 52 ER 58 …. 12.16 Stanley, In Estate of [1965] SASR 159 …. 9.13 State Trustee Ltd v Do [2011] VSC 45 …. 4.9 State Trustees Ltd v Hayden (2002) 4 VR 229; [2002] VSC 98 …. 4.2, 4.8 Stedham, In Goods of (1881) 6 PD 205 …. 7.10 Steel v Ifrah (2013) 38 VR 186 …. 6.14 Steele’s Goods, Re (1868) LR 1 P & D 575 …. 7.9 Stephen’s Will, Re (1932) 27 Tas LR 58 …. 14.37 Stephens v Perpetual Trustee Co Ltd (2009) 76 NSWLR 15 …. 11.5 Stevens v King [1904] 2 Ch 30 …. 9.17 Stokel, Re (1913) 9 Tas LR 7 …. 9.10 Stone, Re [1989] 1 Qd R 351 …. 9.25 Stone, Re; Read v Dubua (1936) 36 SR (NSW) 508 …. 14.23, 16.12 Stone v Hospkins [1905] P 194 …. 2.28 Straede v Eastwood [2003] NSWSC 280 …. 9.26 Strong v Bird (1874) LR 18 Eq 315 …. 2.18 Stuckey, Re (2014) 11 ASTLR 43 …. 5.14 Suarez, In the Goods of [1897] P 82 …. 13.7 Sugden v Lord St Leonards (1876) LR 1 PD 154 …. 6.9 Sullivan, Re (1889) 15 VLR 462 …. 14.23 Sullivan, Re [1930] 1 Ch 84 …. 9.22

Sutton v Sadler (1857) 3 CB NS 87; 140 ER 671 …. 3.7 Swale, Re [1940] SASR 391 …. 12.25 Sykes, In Goods of (1873) LR 3 P & D 26 …. 6.29 Synge v Synge [1894] 1 QB 466 …. 2.23, 2.25 Szylonicz, In Estate of (1978) 19 SASR 263 …. 6.9 T Tait, Re [1957] VR 405 …. 6.2 Takamore v Clarke [2013] 2 NZLR 733 …. 14.4 Tankard, Re; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 …. 14.20, 15.11 Tanner v Public Trustee [1973] 1 NZLR 68 …. 3.15 Tantau v MacFarlane [2010] NSWSC 224 …. 3.35, 3.39, 9.23 Tarca, Re (1981) 29 SASR 152 …. 9.13 Tasmanian Perpetual Trustees Ltd v Colbeck and Chuckowree [2007] TASSC 86 …. 3.8 — v Ramritu [2015] TASSC 7 …. 8.14 Tatham v Huxtable (1950) 81 CLR 639 …. 8.14 Tawil v Public Trustee, Re; Estate of Biriukof (2009) 2 ASTLR 317 …. 2.19 Taylor, Estate of [1965] SASR 136 …. 15.9 Taylor, Re [1949] VLR 201 …. 6.14 Taylor v Taylor (1875) LR 20 Eq 155 …. 9.29, 10.15 — v — (1881) 6 P 29 …. 13.9 Teddy, Re; Hockey v Honeychurch [1940] SASR 354 …. 3.20 Testro, Re (1902) 8 ALR (CN) 61 …. 13.15 Theakston, In Estate of (1956) 74 WN (NSW) 113 …. 5.4 Thomas v Jones [1928] P 162 …. 3.15 — v Nash (2010) 107 SASR 309 …. 3.19, 3.20 Thompson, Re [1930] 1 Ch 47 …. 14.36 Thomson v Harding (1853) 2 E & B 630; 118 ER 904 …. 12.18 Thomspon v Bella-Lewis [1997] 1 Qd R 429 …. 3.11, 3.15, 3.27 Thorner v Major [2009] 3 All ER 945; [2009] UKHL 18 …. 2.21

Thorp and the Real Property Act 1900, Re [1962] NSWR 889 …. 9.25 Thorpe v Bestwick (1881) 6 QBD 311 …. 5.31 Thurston, Re [2001] NSWSC 144 …. 12.20 Ticehurst, Re (1973) The Times, 6 March …. 3.15 Tiernan, In Goods of [1942] IR 757 …. 5.5 Timbury v Coffee (1941) 66 CLR 277 …. 3.3, 3.4, 3.6, 3.7, 4.6 Timson, Re [1953] 1 WLR 1361 …. 14.36 TLB, Re Estate of (2005) 94 SASR 450 …. 3.3, 5.12, 5.21 TM, In Will of [1929] QWN 22 …. 11.13 Tobin v Ezekiel (2011) 6 ASTLR 358; [2011] NSWSC 81 …. 3.24 — v — (2012) 83 NSWLR 757; [2012] NSWCA 285 …. 3.7, 3.11, 3.15 Tomkinson v Hersey (1983) 34 SASR 181 …. 13.9 Tong, Re [1931] 1 Ch 202 …. 14.10, 14.11, 14.26 Tonkiss v Graham [2002] NSWSC 891 …. 5.33 Torr, In Estate of (2005) 91 SASR 17 …. 5.18, 5.19 Townley, Re; Public Trustee v Allder [1922] 1 Ch 154 …. 14.29 Towns v Wentworth (1858) 11 Moo PC 526; 14 ER 794 …. 8.13 Townsend v Moore [1905] P 66 …. 6.3 Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575 …. 9.23 Traeger, Re [1948] SASR 284 …. 11.8 Tratt, Re [1980] VR 657 …. 13.11 Treacey v Edwards (2000) 49 NSWLR 739 …. 5.18, 5.37 Trenaman, Re; Public Trustee v Hartmann [1962] SASR 95 …. 16.2 Trethewey, Re (2002) 4 VR 406 …. 5.18, 12.10 Trickey v Davies (1994) 34 NSWLR 539 …. 7.11 Trimmer v Lax (unreported, SC(NSW), Hodgson J, 9 May 1997) …. 3.35 Tristram, Re Application of [2012] NSWSC 657 …. 5.18 Troja v Troja (1994) 33 NSWLR 269 …. 9.24, 9.26 — v — (1994) 35 NSWLR 182 …. 9.25 Trotter, Re [1899] 1 Ch 764 …. 5.31 Trout v Crozier [1950] QWN 24 …. 13.9 Truro, In the Goods of (1866) LR 1 P&D 201 …. 5.36

Trust Co Ltd v Gibson [2012] QSC 183 …. 9.11 Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 …. 3. 19 Tsagouris v Bellairs (2010) 5 ASTLR 403 …. 12.10, 13.15, 13.16 Tucker, In Estate of [1962] SASR 99 …. 3.7 Turner v Jennings (1708) 2 Vern 612; 23 ER 1000 …. 2.24 Tussaud’s Estate, Re (1878) 9 Ch D 363 …. 8.24 Twigg, In the Estate of (1881) 7 VLR (IP & M) 59 …. 13.12 Tyrie (No 1), Re [1972] VR 168 …. 9.18 Tyrrell v Painton [1894] P 151 …. 3.7, 3.11, 3.16 Tzaczuk, Re Estate of; Dobryden v Wagner (2004) 90 SASR 515 …. 8.16, 10.1 U Underwood (formerly Gaudron) v Gaudron [2015] NSWCA 269 …. 11.9, 11.11 Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 …. 14.45 University College of North Wales v Taylor [1908] P 140 …. 5.37 University of Western Australia v West Australian Trustee Executor and Agency Co Ltd (1961) 105 CLR 71 …. 14.27 Utterson v Mair (1793) 2 Ves Jun 95 …. 12.16 V Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 …. 15.3 Vallee v Birchwood [2013] EWHC 1449 …. 2.17 Van Lessen, Re [1955] 1 WLR 1326 …. 8.10 Varley, Estate of; Re Estate of Veldhuis [2007] SASC 420 …. 3.35, 3.37 Vasiljev v Public Trustee [1974] 2 NSWLR 497 …. 11.16 Vaughan v Marquis of Headfort (1840) 10 Sim 639 …. 3.3 Vauk (decd), In the Estate of (1986) 41 SASR 242 …. 5.27, 13.16 Veall v Veall (2015) 46 VR 123 …. 3.7, 3.12, 3.15 Vernon v Watson [2002] NSWSC 600 …. 3.15

Verrell’s Contract, Re [1903] 1 Ch 65 …. 15.2 Vescio v Bannister [2010] NSWSC 1274 …. 3.36 Victorian WorkCover Authority (VWA) v Del Borgo (2004) 9 VR 470 …. 4.12 Viertel, Re [1996] QSC 66; [1997] 1 Qd R 110 …. 9.11, 9.12 Vigolo v Bostin (2005) 213 ALR 692 …. 11.9, 11.10 Vinier v Francis (1789) 2 Cox 190; 30 ER 88 …. 8.35 Vout v Hay (1995) 125 DLR (4th) 431 …. 3.24 Vukotic v Vukotic (2013) 12 ASTLR 238; [2013] VSC 718 …. 3.8, 3.15 Vynior’s Case (1610) 8 Co Rep 81b; 77 ER 597 …. 2.3 W W, DJ, Re [2015] SASC 45 …. 4.5, 4.8 Wagg, In Will of (1933) 50 WN (Pt 1) (NSW) 226 …. 5.8 Wagstaff v Wagstaff (1869) LR 8 Eq 229 …. 8.37 Wain v Wain [2010] 2 Qd R 375 …. 6.14 Walford v Walford [1912] AC 658 …. 14.35, 14.37 Walker v Landenberger (1937) 37 SR (NSW) 201 …. 8.7 Wallace, Re; Billinghurst v Burke (1908) 25 WN (NSW) 161a …. 16.12 Walsh, In the Will of (1883) 4 LR (NSW) Eq 1 …. 13.15 Walters v Whelan [1941] QWN 26 …. 13.10 Walton, Re [1936] SASR 15 …. 9.5 Wankford v Wankford (1704) 1 Salk 299; 91 ER 265 …. 13.1 Ward, Re [1966] QWN 15 …. 5.40 Ward (decd), In the Estate of [1957] SASR 125 …. 8.20 Ward v Turner (1752) 2 Ves sen 431; 28 ER 275 …. 2.19 — v Van der Loeff [1924] AC 653 …. 8.31 Wardrop, In Estate of [1917] P 54 …. 6.12 Warin v Waring (1848) 6 Moo PC 341; 13 ER 715 …. 3.7 Warner v Levitt (1994) 7 BPR 15,110 …. 14.5, 14.15 Warren v McKnight (1996) 40 NSWLR 390 …. 11.8, 11.16 Warter v Warter (1890) 15 PD 152 …. 6.12

Warton v Yeo [2015] NSWCA 115 …. 8.32 Waters, Re (1889) 42 Ch D 517 …. 14.35 Watkins v Cheek (1825) 2 Sim & do St 199; 57 ER 323 …. 15.2 Watkinson (decd), Re [1952] VLR 123 …. 16.12 Watson v England (1844) 14 Sim 28; 60 ER 266 …. 16.10 Watts, Re (2011) 9 ASTLR 529 …. 3.7 Watts v Public Trustee (1949) 50 SR (NSW) 130 …. 2.18, 2.20 Wayland, In the Estate of [1951] 2 All ER 1041 …. 6.2 Weatherhill v Pearce [1995] 2 All ER 492 …. 5.5 Webb, Re [1964] 2 All ER 91 …. 6.9 Webster, Re [1937] 1 All ER 602 …. 9.5 Wedmore, Re [1907] 2 Ch 277 …. 14.34 Weick, Re (unreported, SC(Qld), Applegarth J, 27 August 2009) …. 4.11 Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828 …. 6.9 Wenham, Re [1892] 3 Ch 59 …. 14.16 Wenn v Howard [1967] VR 91 …. 11.13 Were (decd), In the Will of (1886) 12 VLR 271 …. 12.6 Wesley v Wesley (1998) 71 SASR 1 …. 3.35, 3.36, 8.32 West v West (1996) 5 Tas R 392 …. 11.8 — v Weston (1998) 44 NSWLR 657 …. 16.12 West Australian Trustee Executor & Agency Co Ltd v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1942) 44 WALR 64 …. 15.3 Westbrook’s Trusts, Re [1873] WN 167 …. 16.9 Weston, Re [1902] 1 Ch 680 …. 2.19 Westover, Re Estate of (1987) 139 LSJS 115 …. 16.9 Wheatley v Wheatley [2006] NSWCA 262 …. 11.13 Whelan, Re [1961] VR 706 …. 9.10 Wherrett, In Will of (1883) 9 VLR (IP & M) 25 …. 12.20 White, Re [2001] TASSC 7 …. 16.9 White v Barron (1980) 144 CLR 431 …. 11.9, 11.12, 11.24 — v Muldoon [2006] VSC 204 …. 11.13 Whiteley v Clune (No 2); Estate of Brett Whiteley (unreported, SC(NSW), 13

May 1993) …. 5.18, 6.9 Whitta, Re [1984] 2 Qd R 356 …. 11.8 Whorwood, Re (1887) 34 Ch D 446 …. 8.30 Wieland, In the Goods of; Wieland v Bird [1894] P 262 …. 13.9 Wightwick v Lord (1857) 6 HL Cas 217 …. 14.41 Wigley v Crozier (1909) 9 CLR 425 …. 15.6 Wilden (d’ecd), Estate of (2015) 121 SASR 516; [2015] SASC 9 …. 5.18, 12.10 Wilkes v Allington [1931] 2 Ch 104 …. 2.17 Wilkinson v Joughin (1866) LR 2 Eq 319 …. 3.26 Will and Estate of Meyerstein (decd) and State Trustees Ltd, Re (2009) 4 ASTLR 180; [2009] VSC 564 …. 16.12 Will of Fernando Masci, Re [2014] QSC 281 …. 2.31 William Cringan, In the Goods of (1828) 1 Hagg Ecc 546; 162 ER 673 …. 12.4 Williams, Re [1985] All ER 964 …. 8.27 Williams, Will of (unreported, SC(Tas), 2 December 1986) …. 5.32 Williams Will, Re (1897) 7 QLJ 151 …. 5.38 Williams (decd), In the Estate of (1984) 36 SASR 423 …. 5.14, 5.20, 12.10 Williams v Auccutt [2000] 2 NZLR 479 …. 11.10 — v Federal Commissioner of Taxation (1950) 81 CLR 359 …. 2.11 — v Public Trustee of New South Wales (No 2) [2007] NSWSC 974 …. 5.24 — v Williams (1882) 20 Ch D 659 …. 14.3, 14.4 — v — [2005] 1 Qd R 105 …. 12.26 Willis, Re [1911] 2 Ch 563 …. 8.37 Willox v Rhodes (1826) 2 Russ 452; 38 ER 405 …. 14.37 Wills v Palmer (1905) 53 WR 169 …. 16.10 Wilmot, In the Goods of (1834) 1 Curt 1; 163 ER 1 …. 12.9 Wilson, In the Will of (1897) 23 VLR 197 …. 3.4, 4.6 Wilson, In the Will of (1945) 45 SR (NSW) 342 …. 12.9 Wilson, Re Estate of (1991) 24 NSWLR 334 …. 5.21 Wilson v Chapman [2012] QSC 395 …. 8.32 Windle, Re [1960] QWN 19 …. 13.5, 14.45 Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397 …. 16.2

Wingham, Re [1949] P 187 …. 5.42 Wingrove v Wingrove (1885) 11 PD 81 …. 3.19 Winstanley, Re (unreported, SC(Qld), Daubney J, 18 January 2008) …. 4.11 Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 …. 3.20, 3.22 Wintle v Nye [1959] 1 All ER 552 …. 3.14, 3.15, 3.17 Wise v Whitburn [1924] 1 CW 460 …. 14.43 Wittman v Wittman [2006] QSC 142 …. 11.17 Woithe, Estate of (1972) 3 SASR 189 …. 9.13 Wood, Re [1944] NZLR 567 …. 11.11 Wood, Re Estate of [2014] NTSC 14 …. 5.27 Wood v James (1954) 92 CLR 142 …. 8.33 — v Smith [1992] 3 All ER 556 …. 5.5 Woodard v Woodard [1995] 3 All ER 980 …. 2.19 Woodgate v Tanks [2014] 1 Qd R 481 …. 8.10 Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 …. 3.5 Woodward, In Goods of (1871) LR 2 P & D 206 …. 6.6 Woolley v Clark (1822) 5 B & A 744; 106 ER 1363 …. 13.1 Wooton, In the Goods of (1874) 3 P & D 159 …. 5.3 Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412 …. 3.36 Worth v Clasohm (1952) 86 CLR 439 …. 3.7 Wren, Re (1972) 19 FLR 280 …. 14.10 Wright, Re [1893] P 21 …. 13.12 Wright, Re (1908) 25 TLR 15 …. 12.10 Wright, Re [1970] QWN 28 …. 6.7, 6.11 Wrightson v Calvert (1860) 1 John & H 250; 70 ER 740 …. 8.18 Wroe v Seed (1863) 4 Giff 425; 66 ER 773 …. 14.35 Wyatt v Berry [1893] P 5 …. 5.9 Wynn, Re; Public Trustee v Newborough [1952] Ch 271 …. 15.8 Y Yazbek v Yazbek [2012] NSWSC 594 …. 5.18 Yearwood (decd), In the Estate of (1982) 30 SASR 169 …. 12.7

Yearworth v North Bristol NHS Trust [2010] QB 1 …. 14.3 Young, Re [1913] 1 Ch 272 …. 9.23 Young, Re [1951] Ch 344 …. 5.31 Young v Holloway [1895] P 87 …. 13.17 — v Salkeld (1985) 4 NSWLR 375 …. 11.25 Yu, Re (2013) 11 ASTLR 490; [2013] QSC 322 …. 5.18 Z Zappullo (decd), Re [1966] VR 390 …. 16.4 Zulj, Re Will of (2014) 12 ASTLR 508 …. 3.36

Table of Statutes References are to paragraph numbers

COMMONWEALTH Administration and Probate Act 1929 …. 12.11 Pt 5 …. 13.20 s 9 …. 13.2 ss 9A–9B …. 13.3 s 12 …. 12.22, 12.24 s 20 …. 12.17, 12.20 s 21 …. 12.12 s 24 …. 12.22 s 32 …. 12.26 s 32B(1) …. 13.18 s 38A …. 13.1 s 39 …. 13.1 s 43A …. 12.19 s 49P …. 16.4 s 74A …. 12.18 s 88 …. 12.25 Bankruptcy Act 1966 …. 14.10, 14.22, 14.23 s 90(3) …. 14.23 s 115 …. 14.10 s 116 …. 14.10 s 116(2)(a) …. 14.10 s 116(2)(g) …. 14.10

s 121 …. 14.10 s 244 …. 14.22 s 244(6)(b) …. 14.22 s 247 …. 14.22 s 249 …. 14.10, 14.23 Civil Law (Property) Act 2006 s 13 …. 16.4 s 213 …. 16.4, 16.6 Electronic Transactions Act 1999 …. 5.4 Evidence Act 1996 …. 11.16 Family Law Act 1975 …. 4.12, 6.27, 11.2, 11.13, 11.28 s 6H(4) …. 8.32 s 87 …. 11.28 Forfeiture Act 1991 …. 9.26 Life Insurance Act 1995 s 205 …. 14.10 s 205(1) …. 2.11 Public Trustee Act 1985 s 12A …. 12.5 s 13(1)(b) …. 12.4 Superannuation Act 1922 s 143 …. 14.10 Superannuation Industry (Supervision) Act 1993 …. 2.12 s 59(1A) …. 2.13 Trustee Companies Act 1947 s 4 …. 12.4, 12.15 Wills Act 1968 s 22 …. 7.8 s 24 …. 7.5, 9.14 s 25 …. 9.7 s 31 …. 9.20 s 31C …. 9.15, 16.5

AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 …. 14.23 Pt 3A …. 10.1 s 3D …. 10.6 s 41C …. 14.23, 14.26 s 44 …. 10.3, 10.6 s 45A(1)(b) …. 10.3 s 49 …. 10.6, 10.8, 10.11, 10.14 s 49(1) …. 10.5 s 49(5) …. 10.13 s 49A …. 10.6 s 49BA …. 10.15 s 49D …. 10.1 ss 49F–49N …. 10.7 s 50 …. 14.45, 15.2 s 51A …. 15.3 s 55 …. 14.10, 14.21 s 56 …. 14.43 ss 58–60 …. 15.13 s 68 …. 15.4 s 70 …. 15.9 Sch 6 …. 10.6, 10.11 Sch 6, Pt I, It 2(b) …. 10.6 Sch 6, Pt II, It 1 …. 10.8 Sch 6, Pt II, It 4 …. 10.14 Adoption Act 1993 …. 8.32 s 43 …. 10.9 Births, Deaths and Marriages Registration Act 1997 Pt 4 …. 8.34 Cemeteries and Cremation Regulations 2003

reg 11 …. 14.6 Civil Law (Property) Act 2006 s 500 …. 14.28 Civil Law (Wrongs) Act 2002 s 15 …. 14.16 Civil Partnerships Act 2008 …. 11.3 s 5 …. 6.12 s 6 …. 8.33, 10.3 Family Provision Act 1969 …. 11.1 s 7(1) …. 11.2 s 7(1)(a) …. 11.2, 11.3 s 7(1)(d) …. 11.4 s 7(9) …. 11.3 s 8 …. 11.10 s 8(2) …. 11.11, 11.12 s 8(3) …. 11.11 s 8(3)(a) …. 11.13 s 8(3)(c) …. 11.11 s 9(1) …. 11.7 s 9A(3) …. 11.25 s 11(2) …. 11.26 s 22 …. 11.16 Legislation Act 2001 s 169 …. 10.3 Dict, Pt 1 …. 5.18 Dict, s 17 …. 5.3 Parentage Act 2004 s 7(2) …. 10.9 s 11 …. 8.32, 10.9 s 31A …. 8.32 s 38(2) …. 10.9 Transplantation and Anatomy Act 1978

s 27 …. 14.7 s 28 …. 14.7 s 37 …. 14.7 s 38 …. 14.7 Trustee Act 1925 s 60 …. 14.18, 14.19 Trustee Act 1957 s 46 …. 15.6 Wills Act 1968 …. 3.9, 3.35, 3.37, 5.3, 5.4, 5.5, 5.10, 5.14, 6.4, 6.12, 8.32 s 8 …. 3.2 s 8(2) …. 3.2 s 8(3) …. 3.2 s 8(4) …. 3.2 s 8A …. 3.2 s 9 …. 5.1 s 9(2) …. 5.10 s 11 …. 5.12 s 11A …. 5.12 s 11A(1) …. 5.29 s 11A(2) …. 5.28 s 12 …. 6.28 s 12A(1) …. 3.35, 3.37 s 12A(2) …. 3.37 s 12A(3) …. 3.35, 3.40 s 12A(4)–(6) …. 3.35 s 12B …. 8.27, 8.34 s 14 …. 6.12 s 15 …. 5.30 s 16 …. 5.40 s 16(6) …. 5.41 ss 16A–16I …. 4.1 s 16A(3) …. 4.13

s 16B …. 4.3, 4.4, 4.5 s 16E …. 4.5 s 16E(b) …. 4.11 s 16E(d) …. 4.3 s 16F(2) …. 4.13 s 20 …. 6.13 s 20(1) …. 6.17 s 20(2) …. 6.19 s 20A …. 6.20 s 20A(1)(a) …. 6.25 s 20A(1)(b) …. 6.25 s 20A(2)(a) …. 6.25 s 20A(2)(b) …. 6.27 s 20A(3)(a) …. 6.27 s 20A(4) …. 6.27 s 21 …. 6.1 s 24 …. 8.37 s 28A …. 8.34 NEW SOUTH WALES Adoption Act 2000 …. 8.32 s 95 …. 10.9 Anti-Discrimination Act 1977 Pt 3A …. 8.34 Children (Equality of Status) Act 1976 s 7 …. 8.7 s 8 …. 8.7 Conveyancing Act 1919 s 35 …. 16.3, 16.6, 16.11 s 36B …. 14.34 s 145 …. 14.28

s 153 …. 15.2 s 163B …. 9.11 Evidence Act 1995 …. 11.16 Family Provision Act 1982 …. 5.44, 11.9 Pt 2, Div 2 …. 11.23 s 6(1) …. 11.5 Forfeiture Act 1995 …. 9.26 s 2(1) …. 9.26 s 3 …. 9.26 s 3(2) …. 9.26 s 3(3) …. 9.26 s 3(5) …. 9.26 s 4 …. 9.26 s 5 …. 9.26 s 6 …. 9.26 s 6(2) …. 9.26 s 7 …. 9.26 s 8 …. 9.26 s 8(1)(c) …. 9.26 s 10 …. 9.26 s 11 …. 9.26 s 11(1) …. 9.26 s 11(2) …. 9.26 s 11(3) …. 9.26 Human Tissue Act 1983 s 23 …. 14.7 s 24 …. 14.7 Imperial Acts Application Act 1969 s 13 …. 12.19, 14.45 Interpretation Act 1987 s 21 …. 5.3, 5.18 s 21(1) …. 5.18

s 21C …. 8.33, 10.3 s 21C(2) …. 11.3 s 21C(3) …. 11.3 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 14.16 NSW Trustee and Guardian Act 2009 …. 16.7, 16.13 Ch 4 …. 16.15 s 54 …. 16.13, 16.15 s 54(2)(f) …. 16.15 s 59 …. 16.15 Powers of Attorney Act 2003 …. 9.11 s 22 …. 9.11 s 23(1) …. 9.12 s 23(2) …. 9.12 Probate and Administration Act 1898 …. 12.11, 13.1, 14.23 s 33 …. 12.22 s 40 …. 13.2 ss 40A–40C …. 13.3 s 40D …. 13.18 s 41A …. 13.2 s 44 …. 10.1, 13.1 s 44(1) …. 13.1 s 46 …. 14.10 s 46C …. 14.23 s 46C(2) …. 14.26 s 46E …. 14.43 s 61 …. 13.1 s 63 …. 12.24 s 66 …. 12.26, 14.45 s 69 …. 12.17, 12.20 s 70 …. 12.12 s 74 …. 12.22

ss 76–79 …. 13.7 s 82 …. 14.21 s 82(1) …. 14.36 s 85 …. 15.13 s 86 …. 15.9 s 90(2) …. 13.18 s 92 …. 14.18 s 93 …. 14.19 ss 107–110 …. 13.20 Sch 3 Pt II …. 14.26 Sch 3 Pt 22 …. 14.36 Protected Estates Act 1983 …. 16.10, 16.13 Protected Estate Amendment (Missing Persons) Act 2004 …. 16.13 Public Health (Disposal of Bodies) Regulation 2002 cl 43 …. 14.6 Real Estate of Intestates Distribution Act 1862 …. 1.9 Relationships Register Act 2010 …. 8.33, 10.3 Status of Children Act 1996 s 5 …. 8.7, 8.32, 10.9 s 6 …. 8.7, 8.32 ss 9–17 …. 8.32 s 9(2) …. 10.9 s 14 …. 10.9 Succession Act 2006 …. 4.9, 7.11, 11.9, 11.10 Ch 4 …. 1.12, 10.1 Pt 3.2 …. 11.1 Pt 4.4 …. 10.16 s 3(1) …. 5.18, 7.8 s 3(2) …. 8.32 s 3(4) …. 11.3 s 5 …. 3.2 s 5(2)(a) …. 3.2

s 5(2)(b) …. 3.2 s 6 …. 5.1 s 6(2) …. 5.5 s 6(3) …. 5.10 s 7 …. 5.8 s 8 …. 5.12, 5.18, 7.11, 11.25 s 8(2) …. 5.29 s 8(3) …. 5.28 s 9 …. 5.7 s 9(5) …. 11.25 s 10 …. 5.33 s 11 …. 6.1 s 11(1)(f) …. 6.8 s 11(2) …. 6.1 s 12 …. 6.12 s 12(2)(b) …. 6.19 s 12(2)(c) …. 6.19 s 12(3) …. 6.15 s 12(4) …. 6.15 s 13 …. 6.20 s 13(1)(a) …. 6.22 s 13(1)(b) …. 6.22 s 13(2) …. 6.22 s 13(3) …. 6.22 s 13(4) …. 6.22 s 13(5) …. 6.27 s 13(6) …. 6.27 s 14 …. 6.28 s 15 …. 7.8, 7.11 s 16 …. 3.2 ss 18–26 …. 4.1 s 18(1) …. 4.3

s 18(3) …. 4.13 s 18A …. 7.11 s 19 …. 4.5, 7.11 s 19(1) …. 4.4 s 21 …. 6.28 s 22 …. 4.5, 4.10, 11.18 s 22(b) …. 4.10 s 22(d) …. 4.3 s 23(2) …. 4.13 ss 27–28 …. 3.36 s 27(1) …. 10.8 s 27(2) …. 3.40 s 27(3) …. 3.40 s 30 …. 7.5, 8.37, 9.14 s 31 …. 9.7 s 32 …. 8.27 s 35 …. 9.15, 16.5 s 41 …. 9.20, 9.21 s 46 …. 8.34 s 57(1) …. 11.2, 11.3 s 58 …. 6.13 s 58(2) …. 11.7 s 59(1)(c) …. 11.10, 11.12 s 60(2) …. 11.11, 11.13 s 60(2)(m) …. 11.13 s 72 …. 11.26 s 75 …. 11.23 s 75(1) …. 11.23 s 76(2) …. 11.23 s 80 …. 11.23 s 81 …. 11.23 s 87(1) …. 11.23

s 88 …. 11.23 s 95 …. 11.29 s 100(2) …. 11.16 s 101 …. 10.6 ss 104–111 …. 10.3 s 107(1) …. 16.5 s 111 …. 10.5 s 112 …. 10.5 s 113 …. 10.6 ss 114–121 …. 10.7 ss 122–124 …. 10.3 ss 125–129 …. 10.13 s 128(1) …. 10.11 s 133(1) …. 10.17 s 133(2) …. 10.17 s 133(3) …. 10.17 s 134(1) …. 10.17 s 134(3) …. 10.17 s 135 …. 10.17 s 136 …. 10.14 s 137(2) …. 10.14 s 139(b) …. 9.25 Sch 1, Pt 2(5) …. 6.13 Superannuation Act 1916 s 88 …. 14.10 Supreme Court Rules …. 13.15 Pt 78, r 7 …. 13.15 Pt 78, rr 63–69 …. 13.16 Testator’s Family Maintenance and Guardianship of Infants Act 1916– 1954 …. 2.26 Trustee Act 1925 s 27B …. 15.3

s 46 …. 15.6 s 49 …. 15.4 s 60 …. 14.18 Trustee and Guardian Act 2009 s 11(1)(b) …. 12.4 s 23 …. 12.25 s 83 …. 9.11 Trustee Companies Act 1964 s 4 …. 12.4, 12.15 Wills, Probate and Administration Act 1898 …. 7.11 Pt 2 Div 2A …. 10.1 s 15(1) …. 6.13 s 17 …. 5.27 s 18A …. 5.12, 5.17 s 18A(1) …. 5.29 s 18A(2) …. 5.29 s 29A …. 3.35, 3.38 NORTHERN TERRITORY Administration and Probate Act 1969 …. 12.11, 14.23 Pt III Div 4 …. 10.1 Pt III Div 4A …. 10.1, 10.16 Pt III Div 5 …. 10.1 s 14 …. 12.22, 13.2 ss 15–16 …. 13.3 s 22 …. 12.24 s 28 …. 12.17, 12.20 s 30 …. 12.12 s 33 …. 12.22 s 41 …. 12.26, 14.45 s 43(1)(b) …. 13.18

s 43(1)(c) …. 13.18 s 49 …. 13.1 ss 49–52 …. 13.1 s 52 …. 13.1 s 55 …. 14.10 s 57 …. 14.23 s 57(1) …. 14.26 s 61(1) …. 10.1 s 66 …. 10.5, 10.6, 10.8, 10.11, 10.14 s 66(1) …. 10.3 s 66(5) …. 10.13 s 67 …. 10.6 s 68(3) …. 10.15 s 68(4) …. 10.15 s 69 …. 10.13 s 70 …. 10.5 s 71 …. 1.12 s 71B(1) …. 10.17 s 71B(2)(c) …. 10.17 s 71E(2) …. 10.17 s 71E(3) …. 10.17 s 71F(1) …. 10.17 ss 72–79 …. 10.7 s 80 …. 14.45, 15.2 s 81 …. 15.6 s 83 …. 15.3 s 87 …. 14.21 s 90 …. 15.13 s 97 …. 14.19 s 99 …. 14.19 s 102 …. 15.9 s 111 …. 13.20

Sch 6 …. 10.6, 10.11 Sch 6, Pt 1 …. 10.6 Sch 6, Pt 1, It 1 …. 10.5 Sch 6, Pt 2, It 1 …. 10.8 Sch 6, Pt 2, It 4 …. 10.14 Sch 6, Pt 3 …. 10.3 Adoption of Children Act 1994 …. 8.32 s 45 …. 10.9 Companies (Trustees and Personal Representatives) Act 1981 s 14 …. 12.15 s 14(1) …. 12.4 De Facto Relationships Act 1991 s 3(1) …. 8.33, 10.3, 11.3 s 3A …. 11.3 Family Provision Act 1970 …. 11.1 s 6(3) …. 11.13 s 7(1) …. 11.2 s 7(1)(a) …. 11.2 s 7(1)(d) …. 11.4 s 8 …. 11.10 s 9(1) …. 11.7 s 11(2) …. 11.26 s 17 …. 11.25 s 22 …. 11.16 Interpretation Act 1978 s 10 …. 5.18 s 19 …. 5.18 s 19A(1) …. 10.3 s 19A(3) …. 11.3 s 26 …. 5.3 Law of Property Act 2000 s 20(3) …. 10.14

s 216 …. 16.4 s 216(2)(d) …. 16.6 s 217 …. 16.4 Law Reform (Miscellaneous Provisions) Act 1956 Pt II …. 14.16 Public Trustee Act 1979 s 32(1)(a) …. 12.4 s 32(1)(b) …. 12.4 s 34 …. 12.25 Status of Children Act 1978 Pt 3 …. 10.9 s 4 …. 8.32, 10.9 s 4(a) …. 10.9 s 5D(1)(a) …. 8.32 s 5D(1)(b) …. 8.32 s 5D(2) …. 8.32 s 5F …. 8.32 Transplantation and Anatomy Act Pt 3 …. 14.7 Trustee Act s 21 …. 15.4 s 93 …. 14.18 Wills Act 1938 s 11A …. 5.12 Wills Act 2000 …. 3.9, 5.3, 5.4, 5.5, 5.10, 5.14, 6.4, 6.12 s 7 …. 3.2 s 8 …. 5.1 s 8(3) …. 5.5 s 8(4) …. 5.10 s 9 …. 5.8 s 10 …. 5.12 s 10(1) …. 5.18

s 10(2) …. 5.29 s 10(3) …. 5.28 s 11 …. 5.7 s 12 …. 5.33 s 13 …. 6.1 s 13(f) …. 6.8 s 14 …. 6.12 s 14(2)(a) …. 6.16 s 14(2)(b) …. 6.19 s 14(2)(c) …. 6.19 s 14(3) …. 6.16 s 14(4) …. 6.16 s 15 …. 6.20 s 15(2) …. 6.27 s 15(3)(a) …. 6.24 s 15(3)(b) …. 6.24 s 15(3)(c) …. 6.24 s 15(4) …. 6.24 s 15(5) …. 6.24 s 15(6) …. 6.24 s 16 …. 6.28 s 17 …. 7.8 s 18 …. 3.2 s 19 …. 4.13 ss 19–26 …. 4.1 s 19(3) …. 4.13 s 20 …. 4.4, 4.5 s 20(1) …. 4.3 s 21 …. 4.5 s 21(b) …. 4.11 s 21(d) …. 4.3 s 27 …. 3.36

s 27(2) …. 3.40 s 27(3) …. 3.40 s 27(4) …. 3.40 s 29 …. 7.5, 8.37, 9.14 s 30 …. 9.7 s 31 …. 8.27 s 34 …. 9.15, 16.5 s 40 …. 9.20 s 41 …. 3.33 QUEENSLAND Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 …. 1.12 s 60(1) …. 10.18 s 60(2) …. 10.18 Acts Interpretation Act 1954 s 32 …. 5.3 s 32DA …. 8.33, 10.3, 11.3 s 36 …. 5.18 Adoption Act 2009 ss 214–218 …. 10.9 Adoption of Children Act 1964 …. 8.32 British Probates Act 1898 s 4 …. 13.20 Civil Partnerships Act 2011 s 6 …. 6.12 Cremations Act 2003 s 7 …. 14.4 s 8 …. 14.4 s 11 …. 14.6 Powers of Attorney Act 1988 …. 9.12

Property Law Act 1974 s 20(5) …. 10.14 Public Trustee Act 1978 s 27(1) …. 12.4 s 29 …. 12.25 Status of Children Act 1978 s 3 …. 8.32 s 4 …. 8.32 s 6 …. 10.9 s 12(2)(a) …. 8.32 s 12(2)(b) …. 8.32 s 12(3) …. 8.32 s 14A …. 10.9 s 15 …. 10.9 s 16(2)(a) …. 8.32 s 16(2)(b) …. 8.32 s 16(3) …. 8.32 s 17(2)(c) …. 8.32 s 17(2)(d) …. 8.32 s 17(3) …. 8.32 s 18(2) …. 10.9 Succession Act 1981 …. 12.11 Pt III …. 10.1 Pt IV …. 11.1 Div 3 …. 10.7 s 4(2) …. 14.23 s 5(1) …. 10.1 s 5A …. 8.32 s 5AA …. 11.2 s 5AA(1) …. 10.3 s 5AA(2)(c) …. 11.2, 11.3 s 6 …. 12.22, 12.26, 13.2, 14.45

s 6(2) …. 13.2 s 6(3) …. 12.12 s 8 …. 3.38 s 8(2) …. 3.2 s 9 …. 3.2, 3.38 s 9(a) …. 5.13 s 10 …. 5.1, 5.7 s 10(5) …. 5.8 s 10(6) …. 5.5 s 10(9) …. 5.10 s 11 …. 5.33 s 11(4) …. 5.31 s 12 …. 5.34 s 13 …. 6.1 s 13(e)(ii) …. 6.8 s 14 …. 6.12 s 14(2)(a) …. 6.16 s 14(2)(b) …. 6.19 s 14(2)(c) …. 6.19 s 14(3)(a) …. 6.16 s 14(3)(b) …. 6.16 s 15 …. 5.31, 6.20 s 15(1) …. 6.24 s 15(1)(b) …. 6.24 s 15(1)(c) …. 6.24 s 15(2) …. 6.24 s 15(4) …. 6.24 s 15(5) …. 6.27 s 15(6) …. 6.24 s 16 …. 6.28 s 17 …. 6.13, 7.8 s 18 …. 5.12, 5.13

s 18(2) …. 5.29 s 18(3) …. 5.28 s 19 …. 3.2 ss 21–28 …. 4.1 s 21(2) …. 4.5 s 21(2)(b) …. 4.13 s 22 …. 4.3, 4.4 s 23 …. 4.5 s 24 …. 4.11 s 24(a) …. 4.3 s 24(d) …. 4.11 s 28 …. 8.37 s 29(a) …. 14.38 ss 33–33A …. 3.36 s 33(2) …. 3.40 s 33(3) …. 3.40 s 33B …. 9.15, 16.5 s 33C …. 8.27 s 33E …. 7.5, 9.14 s 33G …. 8.39, 9.7 s 33I …. 8.39 s 33N …. 9.20 s 33O …. 3.33 s 34B …. 10.7 s 35 …. 10.5, 10.8, 10.11, 10.13, 10.14 s 35(1) …. 10.3 s 35(2) …. 16.5 s 36(1) …. 10.3 s 37 …. 10.13 s 40 …. 11.4, 11.5 s 40A …. 11.4 s 40A(3) …. 11.4

s 41 …. 11.2, 11.10 s 41(1) …. 11.5, 11.7 s 41(1A) …. 11.5 s 41(2)(c) …. 11.13 s 41(3) …. 11.26 s 41(12) …. 11.18 s 42(1) …. 11.25 s 44(2) …. 11.21 s 45 …. 13.1 s 45(2) …. 13.1 s 46 …. 12.17, 12.20 s 47 …. 12.19, 14.45 s 49(1) …. 15.2 s 52(1) …. 14.20 s 52(1)(b) …. 15.13 s 53(4) …. 13.18 s 54 …. 12.18 s 54(2) …. 12.20 s 56 …. 14.10 ss 57–58 …. 14.23 s 57(a) …. 14.15 s 58 …. 14.21 s 59 …. 14.26 s 59(1) …. 14.26 s 59(3) …. 14.27 s 60 …. 14.36 s 61 …. 14.28 s 62 …. 14.34 s 65 …. 16.3, 16.6 s 66 …. 14.16 s 76(2)(3) …. 6.13 Sch 2 …. 10.3, 10.5

Sch 2, Pt 1 …. 10.6 Sch 2, Pt II, It 1 …. 10.8 Sch 2, Pt II, It 2 …. 10.11 Sch 2, Pt II, It 4 …. 10.14 Sch 2, Pt IV …. 10.6 Succession Amendment Act 2006 …. 6.13 Superannuation (State Public Sector) Act 1990 s 4.15 …. 14.10 Transplanation and Anatomy Act 1979 s 22 …. 14.7 s 23 …. 14.7 s 31 …. 14.7 s 32 …. 14.7 Trustee Companies Act 1968 s 5 …. 12.15 s 5(1) …. 12.4 Trusts Act 1973 s 31 …. 14.45 s 32 …. 15.3 s 32(1) …. 15.2 s 33 …. 15.6 s 44 …. 15.4 s 67 …. 14.18 s 68 …. 14.19, 15.9 Uniform Civil Procedure Rules 1999 r 610 …. 12.24 SOUTH AUSTRALIA Acts Interpretation Act 1915 s 4 …. 5.3 s 4(1) …. 5.18

Administration and Probate Act 1919 …. 12.11, 14.23 Pt 3A …. 10.1 s 4 …. 10.3 s 5 …. 12.22, 12.26, 13.2, 14.45 ss 17– 20 …. 13.20 s 36 …. 12.17, 12.20 s 37 …. 13.7 s 43 …. 13.18 s 45 …. 10.1, 13.1 s 46 …. 13.1 s 46(1) …. 13.1 s 51 …. 15.2 s 52 …. 14.28 s 56 …. 14.30, 15.13 s 59 …. 14.10, 14.21 s 61 …. 14.23 s 69 …. 15.8 s 70 …. 15.9 s 72B …. 10.13 s 72B(1) …. 10.13 s 72E …. 16.5 s 72G …. 10.6, 10.13 s 72G(1)(a) …. 10.5 s 72G(1)(b) …. 10.6 s 72G(1)(c) …. 10.8 s 72G(1)(e) …. 10.14 s 72H …. 10.13 s 72H(1) …. 10.6 s 72H(2) …. 10.3 s 72J(a) …. 10.11 s 72J(d) …. 10.10 s 72K …. 10.15

s 72L(1) …. 10.7 Adoption Act 1988 s 9 …. 10.9 Adoption of Children Act 1988 …. 8.32 Cremation Regulations 2001 reg 12 …. 14.6 Family Relationships Act 1975 s 4 …. 8.33 s 6 …. 8.32, 10.9 s 8 …. 10.9 s 10A …. 10.9 s 10C …. 10.9 s 10D …. 10.9 s 10D(1) …. 8.32 s 10E(2) …. 8.32 s 11 …. 10.3, 11.3 s 11A …. 11.3 s 11B …. 11.3 Inheritance (Family Provision) Act 1972 …. 11.1 s 4 …. 11.2, 11.3 s 5 …. 11.3 s 6 …. 11.2, 11.3 s 6(a) …. 11.2 s 6(g) …. 11.4 s 6(j) …. 11.6 s 7 …. 11.10 s 7(3) …. 11.13 s 8(1) …. 11.7 s 9(2) …. 11.26 s 12 …. 11.25 Law of Property Act 1936 s 115 …. 10.14

Powers of Attorney and Agents Act 1984 s 11A(1) …. 9.12 Probate Rules 2004 r 31 …. 12.24 Public Trustee Act 1995 s 9 …. 12.25 s 14(1) …. 12.4 Rules of the Supreme Court (Administration and Probate Act) 1984 r 40 …. 12.12 Survival of Causes Action Act 1940 s 2 …. 14.16 Transplantation and Anatomy Act 1983 s 21 …. 14.7 s 23 …. 14.7 s 29 …. 14.7 s 30 …. 14.7 Trustee Act 1936 s 28 …. 15.4 s 29 …. 14.18 s 29(2) …. 14.19 Trustee Companies Act 1988 s 4 …. 12.4, 12.15 Wills Act 1936 …. 3.9, 3.35, 4.13, 5.3, 5.4, 5.5, 5.10, 5.14, 6.4, 6.12 Pt 3 Div 2 …. 4.14 s 3(2) …. 7.3 s 5 …. 3.2 s 5(3) …. 3.2 s 6 …. 3.2 s 7 …. 4.1, 4.13, 4.14 s 7(1) …. 4.3, 4.4 s 7(3) …. 4.5 s 7(3)(b) …. 4.8

s 7(4) …. 4.5 s 7(4)(a) …. 4.8 s 7(8) …. 4.14 s 7(9) …. 4.13 s 8 …. 5.1, 5.14 s 8(d) …. 5.10 s 11 …. 5.40, 5.41 s 12(2) …. 3.38, 5.3, 5.12, 5.14, 5.15, 5.29 s 17(1) …. 5.30 s 20 …. 3.35, 6.12, 6.13 s 20(1) …. 6.19 s 20(2) …. 6.17 s 20A …. 6.20 s 20A(1)(a) …. 6.25 s 20A(1)(b) …. 6.25 s 20A(2)(a) …. 6.25 s 20A(2)(b) …. 6.25 s 20A(2)(c) …. 6.27 s 20A(2)(d) …. 6.27 s 20A(3) …. 6.27 s 21 …. 6.1 s 22 …. 6.1 s 22(c) …. 6.5 s 24 …. 6.28 s 25 …. 7.8 s 25AA …. 3.35, 3.38 s 25AA(2) …. 3.35, 3.40 s 27 …. 7.5, 9.14 s 28 …. 9.7 s 33E …. 8.37 s 36 …. 9.19

TASMANIA Acts Interpretation Act 1931 s 24(b) …. 5.3 s 24(bb) …. 5.18 Administration and Probate Act 1935 …. 12.11, 14.23 Pt V …. 10.1 Pt VI …. 13.20 s 3 …. 10.1 s 4(1) …. 13.1 s 5(1) …. 13.1 s 8 …. 12.17, 12.20 s 9 …. 12.20 s 10 …. 12.19, 14.45 s 12 …. 13.1 s 13 …. 12.22, 12.24 s 15 …. 12.22, 13.1, 13.2 s 21 …. 13.7 s 23 …. 12.12 s 26 …. 12.18, 15.13 s 27 …. 14.16 s 28 …. 13.18 s 32 …. 14.10 s 33 …. 14.36, 15.2 s 34 …. 14.21, 14.23 s 34(3) …. 14.26 s 35 …. 14.28 s 36(4) …. 14.43 s 39 …. 14.45, 15.2 s 40 …. 15.6 s 43 …. 14.30, 15.3 s 43(1) …. 14.20, 14.41

s 56 …. 15.13 s 64 …. 15.9 Adoption Act 1988 …. 8.32 s 50 …. 10.9 Burial and Cremation Regulations 2002 reg 12 …. 14.6 Evidence Act 2001 …. 11.16 Human Tissue Act 1985 s 23 …. 14.7 s 24 …. 14.7 Intestacy Act 2010 …. 1.12, 10.1 Pt 4 …. 10.16 s 4 …. 10.6 s 6 …. 10.3 s 8(1) …. 16.5 s 12 …. 10.3, 10.5 s 13 …. 10.5 s 14 …. 10.6 ss 16–20 …. 10.7 s 26 …. 10.3 s 28 …. 10.9 s 28(1) …. 10.8 s 29(1) …. 10.11 s 30 …. 10.13 s 34(1) …. 10.17 s 34(2) …. 10.17 s 34(3) …. 10.17 s 35(1) …. 10.17 s 35(3) …. 10.17 s 35(4) …. 10.17 s 36 …. 10.17 s 37 …. 10.14

s 38(1) …. 10.14 s 40(b) …. 9.25 Powers of Attorney Amendment Act 2013 …. 9.12 Presumption of Survivorship Act 1921 s 2 …. 16.3, 16.6 Probate Rules 1936 r 22 …. 12.24 r 82A …. 13.18 Public Trustee Act 1930 s 12(1) …. 12.4 s 17 …. 12.25 Relationships Act 2003 …. 6.12, 6.24, 11.3 s 4 …. 10.3 s 6 …. 8.33 Status of Children Act 1974 Pt 3 …. 10.9 s 3…. 8.32, 10.9 s 4 …. 8.32 s 5(2) …. 10.9 s 10C(1) …. 8.32 s 10C(2) …. 8.32 Supreme Court Civil Procedure Act 1932 s 6 …. 13.2 Supreme Court Civil Procedure Act 1935 s 5(5) …. 13.2 Testator’s Family Maintenance Act 1912 …. 11.1 s 2 …. 11.3 s 2(1) …. 11.4 s 3 …. 11.10 s 3A(a) …. 11.2 s 8(1) …. 11.13 s 8A …. 11.16

s 9(5) …. 11.25 s 9(5A) …. 11.25 s 10A …. 11.26 s 11(1) …. 11.7 Trustee Act 1898 s 24 …. 15.4 s 25A …. 14.18 s 25A(5) …. 14.19 s 25A(6) …. 14.19 Trustee Companies Act 1953 s 5 …. 12.4, 12.15 Wills Act 1992 s 18(a) …. 6.13 s 26 …. 5.12 s 36 …. 8.39 s 37 …. 8.39 s 41 …. 9.20 s 43 …. 12.5 Wills Act 2008 …. 3.9, 5.3, 5.4, 5.5, 5.10, 5.14, 5.29, 6.4, 6.12, 6.19 s 5 …. 6.13 s 7 …. 3.2 s 7(2) …. 3.2 s 8(3) …. 5.10 s 10 …. 5.1, 5.12 s 10(1) …. 5.29 s 10(2) …. 5.28 s 10(4) …. 5.18 s 11 …. 5.7 s 12 …. 5.33 s 15 …. 6.1 s 15(1)(e) …. 6.8 s 15(2) …. 6.1

s 16 …. 6.20 s 16(2)(a) …. 6.16 s 16(3) …. 6.16 s 16(4) …. 6.16 s 17 …. 6.20 s 17(1) …. 6.24 s 17(2) …. 6.24 s 17(2)(a) …. 6.24 s 17(2)(b) …. 6.24 s 17(3) …. 6.24 s 17(4) …. 6.24 s 17(5) …. 6.27 s 18 …. 6.28 s 19 …. 7.8 s 20 …. 3.2 ss 21–41 …. 4.1 s 22(1) …. 4.3 s 22(3) …. 4.13 s 23 …. 4.4 s 23(2) …. 4.5 s 24 …. 4.5 s 24(a) …. 4.3 s 24(e) …. 4.11 ss 30–33 …. 4.1 s 42 …. 3.36 s 42(2) …. 3.40 s 42(3) …. 3.40 s 44 …. 7.5, 8.37, 9.14 s 45 …. 9.7 s 46 …. 8.27 s 49 …. 9.15, 16.5 s 58(2) …. 5.5

VICTORIA Administration and Probate Act 1958 …. 12.11, 14.23 Pt I Div 6 …. 10.1 Pt IV …. 11.1 s 3(1) …. 10.3 s 5(1) …. 10.1, 14.36 s 6 …. 13.2 ss 7–9 …. 13.3 s 10 …. 13.18 s 13(1) …. 13.1 s 16 …. 12.17 s 16(1) …. 12.20 s 16(2) …. 12.20 s 17 …. 12.19, 14.45 s 19 …. 13.1 s 24(1) …. 13.7 s 26 …. 12.12 s 28 …. 15.13 s 29 …. 14.16 s 30 …. 14.19 s 33 …. 12.18 s 34 …. 12.26, 14.45 s 34(1) …. 12.26 s 36(3) …. 14.21 s 37 …. 14.10 s 37A …. 10.7 s 38 …. 14.36, 15.2 s 38(2) …. 14.36 s 39…. 14.23, 14.36 s 39(2) …. 14.23

s 39(3) …. 14.23 s 39A …. 14.26 s 39B …. 14.26 s 40 …. 14.28 s 41(4) …. 14.43 s 44 …. 14.45, 15.2 s 46 …. 15.6 s 49 …. 14.20, 14.30, 14.41 s 51 …. 10.3 s 51(1) …. 10.5 s 51(2) …. 10.6 s 51(3) …. 10.6 s 51A(1) …. 10.3 s 52(1)(b) …. 10.11 s 52(1)(e) …. 10.11 s 52(1)(ea) …. 10.11 s 52(1)(f) …. 10.8, 10.13 s 52(1)(f)(i) …. 10.15 s 53 …. 10.15 s 55 …. 10.14 ss 58–61 …. 13.16 s 65 …. 15.9 ss 80–88 …. 13.20 s 90 …. 11.2, 11.3, 11.4 s 91 …. 11.2, 11.3, 11.4, 11.10 s 91(1) …. 11.6 s 91(2)(c) …. 11.10 s 91(4) …. 11.6 s 91(4)(a) …. 11.10 s 91A …. 11.11 s 91A(2)(d) …. 11.12 s 91A(2)(g) …. 11.11

s 91A(2)(k) …. 11.13 s 94(c) …. 11.16 s 97(2) …. 11.26 s 97(5) …. 11.25 s 99 …. 11.7 Adoption Act 1984 …. 8.32 s 53 …. 10.9 Cemeteries and Cremations Act 2003 …. 14.6 Evidence Act 2008 s 63 …. 11.16 s 960 …. 11.16 Financial Management Act 1958 s 58(3) …. 10.14 Guardianship and Administration Board Act 1986 …. 9.12 s 53 …. 9.12 Human Tissue Act 1982 s 26 …. 14.7 s 27 …. 14.7 s 32 …. 14.7 Interpretation of Legislation Act 1984 s 38 …. 5.3, 5.18 Justice Legislation Amendment (Succession and Surrogacy) Act 2014 …. 4.4, 11.6, 11.10 Property Law Act 1958 s 184 …. 16.3, 16.4, 16.6, 16.11 s 194 …. 16.4 Relationships Act 2008 …. 10.3 s (3)(1) …. 8.33 State Superannuation Act 1988 s 88 …. 14.10 State Trustees State Owned Company Act 1994 s 5 …. 12.25

Status of Children Act 1974 s 3 …. 8.32, 10.9 s 4 …. 8.32 s 5 …. 10.9 s 10 …. 10.9 s 10A …. 10.9 s 10C(2)(a) …. 8.32 s 10C(2)(b) …. 8.32 s 10C(3) …. 8.32 s 10D …. 10.9 s 10D(2)(a) …. 8.32 s 10D(2)(b) …. 8.32 s 10E …. 10.9 s 10E(2)(c) …. 8.32 s 10E(2)(d) …. 8.32 Supreme Court Act 1958 s 17 …. 12.22 Trustee Act 1958 s 13 …. 15.3 s 19 …. 15.4 s 30 …. 14.18 Trustee Companies Act 1958 s 4 …. 12.15 Trustee Companies Act 1984 s 9 …. 12.4 Wills Act 1958 s 16 …. 6.13 s 22A …. 8.27 Wills Act 1997 …. 3.9, 4.9, 5.3, 5.4, 5.5, 5.10, 5.14, 6.4, 6.12, 6.13 s 3 …. 4.8 s 5 …. 3.2 s 6 …. 3.2

s 7 …. 5.1 s 7(1)(b) …. 5.5 s 7(2) …. 5.10 s 8 …. 5.8 s 9 …. 5.12 s 9(2) …. 5.29 s 9(3) …. 5.28 s 10 …. 5.7 s 11 …. 5.30 s 12 …. 6.1 s 12(2)(g) …. 6.8 s 13 …. 6.12 s 13(2)(a) …. 6.16 s 13(2)(b) …. 6.19 s 13(2)(c) …. 6.19 s 13(3)(a) …. 6.16 s 13(3)(b) …. 6.16 s 14 …. 6.20 s 14(1) …. 6.23 s 14(1)(b) …. 6.23 s 14(1)(c) …. 6.23 s 14(2) …. 6.23 s 14(3) …. 6.23 s 14(4) …. 6.27 s 15 …. 6.28 s 16 …. 7.8 s 20 …. 3.2 ss 21–22 …. 4.1 s 21(2) …. 4.3 s 21(3) …. 4.13 s 21A …. 4.5 ss 21A–21D …. 4.4

s 21B …. 4.5, 4.9 s 26(b) …. 4.8, 4.9 s 31 …. 3.36, 3.39 ss 31–32 …. 3.36 s 31(2) …. 3.36, 3.40 s 31(3) …. 3.36, 3.40 s 33 …. 14.34 s 34 …. 7.5, 8.37, 9.14 s 35 …. 9.7 s 36 …. 8.27, 12.5 s 39 …. 8.27, 9.15, 16.5 s 45 …. 9.20 s 46 …. 3.33 WESTERN AUSTRALIA Aboriginal Affairs Planning Authority Act 1972 …. 1.12 s 35(1) …. 10.18 s 35(2) …. 10.18 Aboriginal Affairs Planning Authority Act Regulations 1972 reg 9(1) …. 10.18 Administration Act 1903 …. 12.11 s 6 …. 12.22, 13.2 s 10 …. 14.10, 14.26 s 10A …. 14.23 s 12A …. 10.9 ss 12A–16 …. 10.1, 10.3 s 14(1) …. 10.5, 10.6, 10.8, 10.11, 10.13, 10.14 s 14(3) …. 10.6 s 14(6) …. 10.7 s 15(3) …. 10.3 s 20 …. 14.45

s 23 …. 14.21, 14.26 s 24 …. 12.24 s 25 …. 12.24 ss 28–31 …. 10.13 s 29 …. 12.26 s 32 …. 12.17, 12.20 s 33 …. 12.12 s 34 …. 13.7 s 36 …. 12.22 s 43 …. 15.13 s 44 …. 14.30 s 46 …. 13.1 s 47 …. 13.18 ss 61–62 …. 13.20 Sch 4 …. 10.7 Administration Act 1963 s 8 …. 13.1 s 9 …. 13.1 Adoption Act 1994 …. 8.32 s 75 …. 10.9 Artificial Conception Act 1985 ss 3–6 …. 10.9 s 5 …. 8.32 s 6 …. 8.32 Cremation Act 1929 s 7 …. 14.6 Escheat (Procedure) Act 1940 s 9 …. 10.14 Family Provision Act 1972 …. 11.1 s 2(4) …. 11.26 s 6 …. 11.10 s 6(3) …. 11.13

s 7 …. 11.3 s 7(1) …. 11.2 s 7(1)(a) …. 11.2 s 7(2) …. 11.7 s 16 …. 11.25 Human Tissue and Transplantation Act 1982 s 22 …. 14.7 Inheritance (Family and Dependents Provision) Act 1972 see Family Provision Act 1972 Inheritance (Family and Dependants Provision) Amendment Act 2011 s 21A(2) …. 11.16 Interpretation Act 1984 s 5 …. 5.18 s 6 …. 5.3 s 13A …. 8.33, 10.3 s 13A(2) …. 11.3 Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 14.16 Property Law Act 1969 s 120 …. 16.4 s 120(d) …. 16.6 Public Trustee Act 1941 s 7(1) …. 12.4 s 9 …. 13.1 s 10 …. 12.25 Trustee Act 1962 s 27 …. 15.2, 15.3 s 30(1)(k) …. 15.6 s 42 …. 15.4 s 63 …. 14.18 s 64 …. 14.19 s 66 …. 16.12

s 98 …. 15.9 Trustee Companies Act 1987 s 9 …. 12.4, 12.15 Wills Act 1970 …. 3.9, 5.3, 5.4, 5.5, 5.10, 5.14, 6.4, 6.12 s 7 …. 3.2 s 8 …. 5.1 s 8(d) …. 5.10 s 10 …. 6.28 s 10(3) …. 6.31 s 14(1) …. 6.13 s 14(1)(B) …. 6.19 s 14(2) …. 6.18 s 14(3) …. 6.18 s 14(4) …. 6.13 s 14A …. 6.20, 6.26 s 14A(3) …. 6.27 s 15 …. 6.1 s 15(2) …. 6.26 s 16 …. 7.8 s 20 …. 6.12 s 26 …. 9.14 s 26(1) …. 7.5, 8.37 s 26(1)(b) …. 9.7 s 27 …. 9.20 s 28 …. 14.26, 14.28 s 28A …. 8.27 s 31 …. 8.32 s 32 …. 5.12 s 32(2) …. 5.29 s 32(3) …. 5.28 s 34 …. 5.12 ss 39–48 …. 4.1

s 40 …. 4.4 s 40(1) …. 4.3 s 40(2)(a) …. 4.13 s 41 …. 4.5 s 42 …. 4.5 s 42(1) …. 4.3 s 42(1)(b) …. 4.11 ss 49–50 …. 3.36 s 50(2) …. 3.40 s 50(3) …. 3.40 CANADA Wills Act (Manitoba) s 23 …. 5.16 Wills Act (Quebec) cl 64 Article 714 …. 5.16 Wills Act (Saskatchewan) s 35(1) …. 5.16 NEW ZEALAND Testator’s Family Maintenance Act 1900 …. 1.11 RUSSIA Russian Civil Code of 1964 …. 1.10 UNITED KINGDOM Administration of Estates Act 1925 …. 1.9, 12.24 Administration of Justice Act 1982 s 20 …. 3.36 s 20(1) …. 3.38

s 21 …. 8.27 Australian Courts Act 1828 …. 1.9 Forfeiture Act 1982 …. 9.26 Inheritance Act 1833 …. 1.9 Inheritance (Family Provision) Act 1938 …. 1.11 Inheritance (Provision for Family and Dependants) Act 1975 …. 11.17 Land Registration Act 2002 …. 2.20 Mental Capacity Act 2005 …. 4.1, 4.10 Mental Health Act 1983 …. 4.1 s 96 …. 4.1 s 97 …. 4.1 Probate Act 1857 …. 1.9 Statute of Distributions 1670 …. 1.6, 1.9, 10.1 s 5 …. 10.15 s 8 …. 14.20 Statute of Distributions 1687 …. 1.9 Statute of Frauds 1677 …. 1.9, 2.27, 2.29 Statute of Tenures 1660 …. 1.7 Statute of Uses 1535 …. 1.7 Statute of Wills 1540 …. 1.7, 1.9 Wills Act 1837 …. 1.9, 6.10 s 15 …. 5.30 s 19 …. 6.1 s 21 …. 6.28 s 23 …. 7.8 s 24 …. 9.14 Wills Amendment Act 1852 …. 5.5 s 1 …. 5.5 UNITED STATES OF AMERICA Uniform Probate Code

s 5-202 …. 5.16 s 5-203 …. 5.16

References To avoid unnecessarily long footnotes, bibliographical references have been made in full the first time they appear, but those texts that are referred to more than once appear thereafter in abbreviated form. The abbreviations and the full references for these texts appear below: Full reference Bradbrook, MacCallum and Moore

Bradbrook, MacCallum, Moore, Australian Real Property Law, 6th ed, Law Book Co, Sydney, 2016

Certoma

Certoma, The Law of Succession in New South Wales, 4th ed, Law Book Co, Sydney, 2010

Croucher and Vines

Croucher & Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, 2013

Ford and Lee

Ford & Lee, Principles of the Law of Trusts, 2nd ed, Law Book Co, Sydney, 1990

Haines

Haines, Succession Law in South Australia, LexisNexis Butterworths, Australia, 2003

Hardingham, Neave and Ford

Hardingham, Neave & Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Co, Sydney, 1989

Hutley

Birtles and Neal, Hutley’s Australian Wills Precedents, 9th ed, LexisNexis Butterworths, Australia, 2016

Lee

Preece, Lee’s Manual of Queensland Succession Law, 7th ed, Law Book Co, Sydney, 2012

McCredie

McCredie, Wills Probate and the Administration of the Estates of Deceased Persons in Victoria, 2nd ed, Butterworths, Sydney, 1989

Mellows

Margrave-Jones, Mellows, The Law of Succession, 5th ed, Butterworths, London, 1993

Miller

The Machinery of Succession, 2nd ed, Dartmouth, Aldershot, 1996

Theobald on Wills

Theobald on Wills, 18th ed, Sweet and Maxwell, London, 2016

Contents Preface Acknowledgments Table of Cases Table of Statutes References 1

Introduction Meaning and scope of the law of succession Meaning of succession law Terminology in succession law Probate and administration Courts of construction Historical basis General Succession to personalty Succession to realty Jurisdiction in succession matters Subsequent developments Freedom of testation Succession and property The family and succession Other matters Indigenous perspectives Comparative succession law Conflict of laws Uniform succession laws

The future

2

The General Nature of a Will Definition and characteristics of a will Definition Declaration of intention Revocability Takes effect only on death Ambulatory in nature Not limited to property Prescribed form Unitary in nature Wills distinguished from other transactions and relationships Introduction Settlements inter vivos Life insurance policies: nominations Pension and superannuation nominations Joint tenancies Joint banking accounts Donatio mortis causa Donatio mortis causa: in contemplation of death Donatio mortis causa: conditional on death Donatio mortis causa: parting with dominion — delivery Property the subject of a valid donatio Contracts relating to wills Introduction Contracts to leave legacy Contracts to leave specific property Contracts to leave ‘all property’/residue Contracts not to revoke or alter wills Contracts and family provision claims Formalities and enforceability of testamentary contracts

Mutual and joint wills Mutual wills: introduction Proof of agreement and other essential elements Marriage and mutual wills Joint wills

3

Making a Will — the Mental Elements Introduction Age Mental capacity: sound mind, memory and understanding Introduction Test of mental capacity Lucid intervals Proof of incapacity Time for satisfying test of mental capacity Testamentary intention General principle Conditional intention Knowledge and approval General Reading over the will Summary Suspicious circumstances General Will prepared by beneficiary Other suspicious circumstances Severance ‘Suspicious circumstances’ differ from undue influence and fraud Undue influence The test No presumption of undue influence Onus of proof

Standard of proof Consequence of undue influence Difficulty of proof in undue influence cases Fraud The problem The principle Other cases of fraud Mistake and statutory rectification of wills Introduction Mistake as to legal effect of words used Error of fact: power to omit words Examples of courts’ jurisdiction Limits on Probate Courts’ jurisdiction No jurisdiction to insert words Statutory rectification powers Problem of ‘mirror wills’: execution of wrong wills Relationships between statutory rectification powers and general principles of construction Time limits and extensions of time for applications

4

Statutory Wills: Wills for Persons Who Lack Testamentary Capacity Background Reasons for statutory wills Procedure: applicants Procedure: two-stage process Statutory conditions for exercise of power General Condition one: lack of testamentary capacity Condition two: the proposed will, alteration or revocation is one or might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity

Condition three: it is reasonable in all the circumstances (or appropriate) that an order should be made Time statutory will has effect Costs

5

Making a Will — the Formal Requirements Introduction Need for formalities Formalities Writing Requirement of a ‘signature’ Position of the signature Signing or acknowledgment of signature in presence of two witnesses Presence of two witnesses Meaning of attestation and subscription In presence of testator Attestation clauses and presumption of due execution Summary Judicial dispensing powers Informal wills General approach to the legislation Use of previous authorities Scope of the dispensing power Legal criteria Definition of document Document must purport to record the testamentary intention of the deceased Testator intended the document, without more, to operate immediately as a will General considerations applicable to third requirement Timing of intention

Admissibility of evidence Burden of proof Disqualification of witnesses The rule Construction of rule More than two witnesses Current position in New South Wales, Queensland, Tasmania and the Northern Territory Disqualification of interpreters in Queensland Incorporation by reference Introduction Existence of document at date of execution of will Document referred to as already in existence Document identified in will Use of incorporation Privileged wills Introduction Who is a privileged testator? Rationale International wills

6

Revocation and Alteration of Wills Introduction Revocation by another will or codicil Express revocation by another will or codicil Implied revocation by another will or codicil Revocation by writing declaring intention to revoke Revocation by actual destruction General The act The intention Revocation by dealing with a will: New South Wales, Victoria,

Queensland, Tasmania and the Northern Territory Missing wills: presumption of destruction Dependent relative revocation General Examples of dependent relative revocation Revocation by marriage Wills in contemplation of marriage General Prior legislation Current law Wills revoked by marriage: exception relating to powers of appointment and executors and trustees Revocation by termination of marriage General Statutory provisions Alterations, interlineations and obliterations: amendment of wills General Alteration made before execution of will Alteration duly executed Obliterations: part of will not apparent Effect of amendment

7

Republication and Revival Republication General Intention to republish General effect of republication Change of persons Changes in property Other effects of republication Some limits on republication Revival

General Intention to revive Effect of revival

8

Construction of Wills Introduction The problem Courts of probate and courts of construction Rules of construction General principles of construction Expressed intention of the testator Will as a whole to be construed Usual or ordinary meaning rule Secondary meanings: dictionary principle Secondary meanings: surrounding circumstances Words with more than one usual meaning Technical words and phrases Custom Omissions Undesigned insertions: ignoring words Changing and transposing words Subsidiary principles of construction General Golden rule: avoidance of intestacy The principle: ‘ut res magis valeat quam pereat’ The principle: ‘falsa demonstratio non nocet, cum de corpore constat’ Ejusdem generis Inconsistency and conflict: ambiguous words do not control a clear gift Inconsistency and conflict: rule of despair Inconsistency and conflict: rule in Lassence v Tierney Admissibility of extrinsic evidence in construing a will

General Admissibility of extrinsic evidence at common law Armchair principle Evidence of intention: equivocations Statutory modification Court unable to ascertain meaning Gifts to persons General Person to be ascertained at date of will Relationships Legitimacy, adoption, artificial conception and children generally Spouses Transgender persons Class gifts Gifts of property General Will speaks from death as to property Types of gifts Specific statutory rules relating to gifts of property

9

Gifts by Will Introduction Types of gifts Specific devises and legacies General legacies Demonstrative legacies Pecuniary legacies Residuary devises and legacies Doctrine of ademption General Applies only to specific gifts Changes in nature of gift

Ademption not by testator Ademption not by testator — specific statutory provisions Contracts and options Effect of s 24 of Wills Act (UK) and Australian equivalents Doctrine of lapse General Substitutional clauses Common law exceptions to doctrine: obligations Common law exceptions to doctrine: charities Statutory prevention Statutory substitution to issue Class gifts and joint tenancies Disclaimer Forfeiture for killing General Effect of forfeiture Statutory modification in New South Wales and Australian Capital Territory Equitable doctrine of satisfaction General Satisfaction of commercial debts by legacies Satisfaction of portion debts by legacies Satisfaction of legacies by portions (sometimes called equitable ademption) Satisfaction of legacies by legacies Equitable doctrine of election General Example

10 Distribution on Intestacy Definition of intestacy General

Entitlement on intestacy Entitlement of surviving spouses Definition of ‘spouse’ General disposition to surviving spouse Surviving spouse with no issue of the intestate Surviving spouse and issue of the intestate Election by surviving spouse with respect to matrimonial home Entitlement of issue General Definition of ‘issue’ Entitlement of issue Others entitled Parents: surviving parent(s) but no surviving spouse or issue Surviving parent(s) and surviving spouse Next of kin The Crown Doctrine of hotchpot Indigenous persons’ estates General Dedicated intestacy rules: New South Wales, Northern Territory and Tasmania Queensland and Western Australia Patterns of distribution: jurisdiction by jurisdiction General Australian Capital Territory New South Wales and Tasmania Northern Territory Queensland South Australia Victoria Western Australia

11 Family Provision Introduction Applicants: persons eligible to apply Spouses De facto spouses, partners, same sex relationships Children Dependency: New South Wales and Queensland Others — including the previous Victorian position Time limits for application General Extensions of time Criteria in determining entitlement Twin tasks General approach to claims Specific factors Time for ascertaining adequacy and propriety Disentitlement: character and conduct of the applicant General Time for ascertaining character and conduct Partial disentitlement Statements made by testator Property out of which order may be made General Donatio mortis causa Joint banking accounts Joint tenancies of real estate Property distributed in administration Property subject to contract: testamentary promises New South Wales: notional estate Types of relief: orders Types of orders

Variation of orders Burden of provision of orders Contracting out of the legislation General Agreements under the Family Law Act 1975 (Cth) New South Wales: Succession Act 2006 s 95

12 Personal Representatives Introduction Appointment of executors Introduction Identification of the executor Testator’s delegation of appointment of executor Ambiguity as to identity of executor Appointment of an office-holder Appointment of partners in a partnership Substitutional appointments Limited appointments of executors Implied appointment of executor: executors according to the tenor Capacity to act as executor Inherent jurisdiction of the court: passing over the executor Minors Mentally or physically disabled persons Persons with criminal records Corporations Bankrupts and insolvent persons Assumption and renunciation of office Assumption of office by executors Executor de son tort Transmission of executor’s office: chain of representation Renunciation of office by executor Administrators

Appointment of administrators Jurisdiction of the court Grants of administration with the will annexed Grant of general administration Grants of administration to strangers Retirement and removal of personal representatives

13 Grants of Representation Introduction Grants of representation and the vesting of property Form and types of grant Proving the death Limited grants Overview of limited grants Grant of representation with respect to unadministered estate Grant of administration during the minority of the appointed executor Grant of administration durante absentia Grant during incapacity of entitled person Grant of administration pending suit Grant of administration ‘for the purposes of the suit’ Miscellaneous grants Grant ad colligenda bona Where will is mislaid, outside the jurisdiction or inadvertently destroyed Cessate grant Common form and solemn form grants General Grant in common form Grants in solemn form Revocation of grants Effect of revocation

Obtaining a grant in a foreign jurisdiction Resealing of grants

14 The Administrative Process Part 1 — Functions and Duties of Personal Representatives General Responsibilities of the personal representative Assets of the deceased requiring immediate attention Funeral and disposal of the body General Where there is an executor Where there is an administrator, or where an administrator is not yet appointed Disposal of ashes Post-mortem use of body parts Proving the will Collecting the assets of the deceased General Available assets Can a personal representative be certain that all of the assets have been received? Liabilities of the estate General Liabilities incurred by the personal representative: funeral expenses Liabilities incurred by the personal representatives: testamentary and administrative expenses Liabilities incurred by the personal representative: personal liability Liabilities incurred by the deceased: torts and contracts Expediting the ascertainment of liabilities Conclusive notification of claims against the estate Compelling a creditor to pursue a claim against the estate Payment of liabilities of the estate

Priority for payment of debts Insolvent estates Applications under Bankruptcy Act 1966 Administration of insolvent estates under state or territory legislation Solvent estates General Priority of assets at common law Priority of assets under state legislation Ascertaining whether the testator has excluded the statutory scheme Property mortgaged or charged by the testator in his or her lifetime — Locke King’s Act Appropriation and marshalling of assets Distribution of the estate General Intestate estate Testate estates Ascertaining the categories of dispositions Specific legacies General legacies Fund from which general legacies are payable Demonstrative legacies Residuary gifts Ademption and other failure of gifts Completion of administration General Transferring assets to beneficiaries What is an assent? When is the residuary estate ascertained? Differences between the office of a legal personal representative and that of a trustee

The Administrative Process Part 2 — Powers, Rights and 15 Liabilities of Personal Representatives Powers General Power of sale Power to carry on business Power to compromise Power to employ agents Power to appropriate assets Rights General indemnity Seeking directions from the court Right to commission Liabilities Rights of beneficiaries during administration Failure to fulfil duties: devastavit Administration action: equity Keeping accounts and records Relief from liability Defences

16 Survivorship Introduction Commorientes Legislative provisions Judicial considerations Commorientes: 30-day survivorship provision Commorientes: joint tenancies Survivorship: presumption of death Context General principles Matters of proof

Relationship between the common law presumption of death and commorientes Grant of leave to distribute Position in New South Wales: Trustee and Guardian Act 2009

Index

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Introduction

1

Meaning and scope of the law of succession Meaning of succession law 1.1 The law of succession is concerned with the legal consequences flowing from the death of a person on that person’s property, both real and personal, whether that person leaves a will or not. Though much of the law of succession concerns particular rules and principles relating to wills, it should nevertheless be noted that the law of succession is generally concerned with the transmission or redistribution of property on death. It thus encompasses the law relating specifically to intestacy and should include an examination of gifts inter vivos (that is, non-testamentary dispositions) if the effect of such a gift is to provide succession to property after the donor’s death.1 Further, the actual mechanics of the redistribution of property after death are also properly the concern of the law of succession, although often referred to separately as the law of probate and administration.

Terminology in succession law 1.2 The principal legal means available in Australian law for a person to redistribute property on death is the will. There are considerable difficulties in adequately defining a will, and such a task will not be undertaken at this stage, the matter being more fully considered in Chapter 2. There are, however, a number of basic terms that need to be comprehended when considering the law of succession.

A person making a will is referred to as the testator. (In the case of females, the word ‘testatrix’ is often used. This usage is probably now obsolete, and is not used in a general way in the text, except where used by individual judges in particular cases.) When that person dies, he or she is said to have died testate. The term ‘devisor’ is sometimes employed to indicate a testator, although technically it should embrace only those testators who leave real property and not personal property by a will. In most cases, a will names a person (or persons) to administer [page 2] the estate and that person is called an executor. If the testator fails to appoint an executor, or the person so appointed fails, for whatever reason, to carry out the functions of an executor, the court will appoint an administrator to perform those functions; that person is called an administrator cum testamento annexo, or, with the will annexed. A person taking property under the provisions of a will is commonly called a beneficiary. If real property is disposed of by the will, the actual gift is called a devise and the recipient, a devisee. The term ‘bequest’ indicates a gift of personal property. If a sum of money is bequeathed under the will, the gift is called a legacy, and the recipient, a legatee, although the terms ‘bequest’ and ‘legacy’ are sometimes used interchangeably. Most modern wills seek to avoid the use of technical language in leaving property, the common terminology being to gift the property: see Chapter 9. When a person dies without leaving a will, that person is said to have died intestate and the property of that person will be distributed in accordance with the statutory schemes of distribution that operate in all Australian states and territories: see Chapter 10. These rules are commonly called the intestacy rules, and the persons to whom the property is distributed, the beneficiaries. In general, the schemes provide that the beneficiaries under

intestacy are to be the spouse, if any, of the intestate, and/or the next of kin. If there are no beneficiaries of this description, then the property will pass to the Crown as bona vacantia, that is, goods or property without an owner. Prior to distribution of the estate in this manner, a person, called an administrator, is appointed by the court. The administrator so appointed will be a person most interested in the estate, usually a close relative of the deceased, and the grant of administration is termed ‘letters of administration’. It should also be noted at this stage that in all Australian jurisdictions the courts have power to make a family provision or testator’s family maintenance order. The meaning of such an order will be discussed further in this chapter (see 1.11; also Chapter 11), but basically if the will or the intestacy rules fail to make adequate provision for the proper maintenance of the deceased’s family and certain other defined dependants, such persons are able to apply to the court for an order for further provision from the estate of the deceased.

Probate and administration 1.3 When a person dies testate, appointing an executor, the primary duty of the executor is to establish the validity of the will. To do this, he or she will obtain a grant of probate from the court. Jurisdiction to grant probate of a will is vested in the Supreme Court of each state and territory, commonly called a Court of Probate when so acting. The function of the court is to establish whether the document in question is a will and was intended as such by its maker, whether the document complies with the required formalities for the making of a will, whether the maker of the will had the required mental capacity to so make it, and whether it was the last will of the deceased. If satisfied on these matters, the court will [page 3]

grant probate of the will, a formal sealed grant being issued with a copy of the will attached. Naturally, not all wills are formally examined by the court sitting as a court in this way, as long delays in the grant of probate would undoubtedly occur and valuable court time would be taken up by noncontentious matters. To this end, in all jurisdictions, registrars of the Supreme Court have been given certain powers to grant probate on the basis of the lodgment of an application for a grant supported by affidavits, but if there is any doubt at all as to any of the matters on which a court would decide to grant or not grant probate, the matter must be considered by the court before an order can be made. It should be noted at this stage that once a probate court actually grants probate in these circumstances, that is, after formally hearing the matter, a grant in solemn form will be issued that effectively means the issue in contention may not be litigated again. If there is an intestacy, it has already been mentioned above that the function of the court is to grant letters of administration to a person most interested in the estate of the intestate. Such a grant is similar to a grant of probate in that it empowers the administrator so appointed to deal with the estate. Letters of administration with the will annexed may also be granted by the court in the appropriate circumstances; that is, where no executor is appointed by the will or the executor so appointed is unable or unwilling to act. Executors and administrators are generically termed ‘personal representatives’. Once probate has been granted in the case of a will, or letters of administration in the case of an intestacy, it is the duty of the personal representative to gather in all the assets of the deceased, pay any debts owing by the deceased at death and debts actually incurred in the due course of administration, and to distribute the balance of the deceased’s property to those entitled under the will or the intestacy rules. Personal representatives should also be aware of the possibility of a family provision order being made by a court, which may affect the final distribution of the estate.

Courts of construction 1.4 A grant of probate does not necessarily mean that an executor will be free from doubt in carrying out executorial duties. Particular terminology and words and phrases used in the will may make it difficult, for example, to identify the precise property to be distributed or the actual beneficiary who is to take the property. The actual construction of a will can cause innumerable problems, as evidenced by the considerable amount of litigation in this area of succession law: see Chapter 8. Jurisdiction to resolve these constructional problems is again vested in the Supreme Courts of each state and territory, but this jurisdiction must be distinguished from the probate jurisdiction. The reasons for this are historical, and are examined in the next section of this chapter. Suffice it to point out at the moment that, in some respects, the rules of evidence relating to either function may differ considerably, a court of construction being extremely limited as to the evidence that may be [page 4] admitted before it to ascertain the testator’s intention. The purpose of the court of construction is to construe the will and thus give official guidance to the executor in administering the estate.

Historical basis General 1.5 The history of succession law in England reflects a sharp distinction between the law relating to realty and that to personalty. This is because jurisdiction in relation to each type of property was vested in different courts. The matter is of further complexity in that the will, the main vehicle of freedom of testation, was not available in respect of real property until much later than it had been available for personalty. In explaining the historical

basis, it is therefore necessary to consider the succession of personalty separately from the succession of real property. Little information is available as to succession prior to the Norman Conquest. Some sort of wills did apparently exist in the Anglo-Saxon period but, unlike their modern day counterpart, they took effect immediately, so that two of the main features of the modern will, its ambulatory nature and its revocability (see Chapter 2), were missing.2 The brief historical survey that follows is therefore based upon the post-Conquest period, particularly that of the twelfth and thirteenth centuries.3

Succession to personalty 1.6 The devolution of personalty was at first governed by the customary law that had continued from Anglo-Saxon times. On death, one-third of a man’s personalty passed to his wife, one-third passed to his children and the remaining one-third (called the ‘dead part’) was to be disposed of as he wished.4 It was thus possible for a will to be made disposing of the dead part, although commonly it was given to the Church on final confession. These restrictions gradually fell into disuse, however, so that, except in certain areas, by the fifteenth century it was possible to dispose of the whole personal estate by will. Intestacy, though not common at this stage, was also governed by the same general custom, so that if the deceased failed to dispose of the dead part, that part was to be given to the Church for pious purposes, such purposes being the purchase of prayers, distribution to the poor and the relief of poor relations. Jurisdiction over both testate and intestate succession was assumed by the ecclesiastical courts, most probably because of the Church’s claim to [page 5] distribute the dead part in the case of testate succession. Such jurisdiction

included the jurisdiction to pronounce upon the actual validity of a will and the appointment of executors, and it was at this time that the executor first came to exert an important role in the law of succession. A failure to appoint an executor was tantamount to dying intestate, which in medieval times was regarded as sinful. The development of the law relating to intestate succession to personalty followed similar lines. Prior to statutory intervention in 1357, the intestate’s property (that is, the dead part) vested in the ordinary, who was usually the bishop, but the statute required the bishop to appoint an administrator from among the deceased’s next and most lawful friends. Similar powers and duties were given to administrators as those vested in executors. This system of intestacy in fact survived for quite some time but was replaced in 1670 by a statute that became known as the Statute of Distributions. One successful aim of that Act was to provide a new legislative scheme for the distribution of personalty on intestacy, and it provided a code for that purpose that was not substantially amended until the twentieth century. The statute abolished the dead part so that the estate was to be distributed to the next of kin, and a complicated formula was established to determine these issues.

Succession to realty 1.7 By the end of the thirteenth century, because of the feudal system of land holding, wills of land were not permitted, except in places where special customs existed. Realty passed, upon the death of a freeholder, to the heir-atlaw, so that it could not pass by will or indeed be used for the payment of debts. The system was one of primogeniture in that the eldest son inherited to the exclusion of the younger sons and all the daughters. In order to avoid this system of inheritance (and also to avoid the payment of feudal dues), in the fifteenth century it became common to employ the doctrine of the use. Under this device, land was conveyed to two or more persons (called the feoffees to uses) who were to hold the land to the uses

declared by the grantor, so that the feoffees were to hold on behalf of, or to the use of, nominated beneficiaries, who were called cestui que uses. In this way, after the death of the grantor, the feoffees held the land for those beneficiaries. The legal restrictions on devising land by will could be neatly avoided by this method, but uses depended on the support of the Court of Chancery for their enforcement, and were thus purely equitable in nature. The widespread employment of uses came to an abrupt end with the passing of the Statute of Uses in 1535, but because of popular demands for the ability to devise freehold land, the Statute of Wills was passed in 1540. This statute empowered all persons, except married women, infants and idiots, to devise all land held in socage tenure and two-thirds of those lands held in knight service. All military tenures were converted into socage tenure by the Statute of Tenures 1660 so that at that date land was freely devisable. Unlike personalty, all matters relating to the devise of land were in the jurisdiction of the common law courts. [page 6] If a freehold landowner failed to exercise this right to devise the land, then generally the common law rules of inheritance still applied, so that the land would devolve upon the heir-at-law. No administration of the estate was therefore necessary. It should also be noted that under this system, the common law did offer some protection to the surviving spouse, in that a widower was entitled to an interest called curtesy, and a widow to dower. These were generally a life interest in either the whole or part of the real property of the deceased, but were hedged with a number of limitations and conditions, and eventually such rights were not permitted to prevail over the rights of any devisee of land under a will.5

Jurisdiction in succession matters

1.8 As has been seen, the history of succession law reflects a mixture of custom, common law, equity and ecclesiastical law. While the common law courts always had control over realty, the ecclesiastical courts largely determined the law relating to succession to personalty, both testate and intestate. This jurisdiction included the law relating to wills and that relating to personal representatives. By the early sixteenth century, however, for a variety of reasons, the ecclesiastical courts lost effective control over administrators, and the common law courts failed to provide any enforcement procedures in its place. This was ironic in that much of the opposition to the jurisdiction of the ecclesiastical courts came from the common law courts themselves. It was thus left to the Courts of Chancery to assert control, and Chancery was assisted in this task by developed notions of trusteeship and accounting, which could easily be applied to executors and administrators, and also by the fact that the Chancery Courts had, in any event, taken over much of the jurisdiction of the ecclesiastical courts when the latter entered a period of decline. The end result was that the ecclesiastical courts were left with the jurisdiction to determine the validity of wills and the making of grants of probate or the appointment of administrators, while the Courts of Chancery controlled the actual administration of the estate, including the jurisdiction to construe the will once probate had been granted. The functions of the ecclesiastical courts were eventually taken over by the lay Court of Probate in 1857. As Lee points out, this separation of jurisdiction is still noticeable today: The question of whether and if so what instruments may be recognised as testamentary and so admitted to probate, and the question of who should be appointed as administrator where there is no executor, are always regarded as initial questions to be settled in proceedings quite separate from any proceedings concerning the administration of the estate or the interpretation of a testamentary instrument, which may be brought much later. The settlement of those initial matters is the traditional and only function of probate proceedings, inherited from the ecclesiastical jurisdiction.6

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Subsequent developments 1.9 In the United Kingdom freedom of testation, in respect of both realty and personalty, continued so that by the nineteenth century, apart from dower, there were no restrictions upon the way in which a person could leave property by will. Further formalities for will-making were prescribed by the Statute of Frauds 16777 and a common form for wills was eventually adopted by the Wills Act 1837. In respect of intestacy, refinements were made to the Statute of Distributions in 1687 and this scheme continued until 1925. In respect to realty, the Inheritance Act 1833 (UK) provided a complicated formula for determination of the heir-at-law. The Administration of Estates Act 1925 (UK) provided a new legislative scheme for intestate succession for both personalty and realty effectively ending all concepts of primogeniture and heirs-at-law. As mentioned above in 1.8, the Court of Probate was established by the Probate Act 1857 (UK), effectively abolishing ecclesiastical jurisdiction. The Australian position has effectively evolved along similar lines, although with some differences. On the settlement of New South Wales in 1788 the common law position was that, at least in respect of ‘settled’ colonies, the settlers took with them the laws of England so long as those laws could be applied to the circumstances of the colony. This common law position was confirmed by statute in 1828.8 The Act also provided for dates of reception of English law.9 The effect of the statute was to make English succession law in force at that date applicable in the colonies. As we have seen, at that date both the Statute of Wills 1540 and the Statute of Distributions 1670 were still in force. After self-governance, local legislatures could alter both the common law and statute law, so long as the legislation was not repugnant to English law. As Certoma points out, the local legislature generally followed the English reforms of the law of succession.10 One of the most significant initiatives of the New South Wales legislature was the abolition of the concept of primogeniture in 1862, well before it was finally abolished in England in

1925.11 The Act provided that intestate realty should pass as in the case of personalty. By the end of the nineteenth century the local legislatures had adopted similar schemes for distribution on intestacy (this legislation in its current form is considered below in Chapter 10).12 In respect of testate succession, all jurisdictions have legislation originally based upon the Wills Act 1837 (UK), but now considerably modified. [page 8] This legislation is considered in detail throughout the text. Jurisdiction in succession matters is vested in the Supreme Court in each state and territory, the separate rules relating to realty and personalty having been assimilated. Nonetheless, while jurisdiction is exercised by the same court, the probate function still needs to be considered apart from the equitable function, the latter being concerned with administration of estates and construction: see 1.8 above.

Freedom of testation Succession and property 1.10 One view of the law of succession is that it is based naturally on the rights of ownership and possession of private property established by the common law. Many of the advantages of gaining private property would be lost if those private rights were not to extend to a right to transmit that property on death. It would, of course, be possible for a system of law to recognise private property rights during an individual’s lifetime but to deny any right to transmit on death, although it is not difficult to imagine many of the practical problems such a system could create. Conversely, of course, there would be no need for succession rights if there were no individual property rights. Thus, if property were owned collectively, and not

individually, the death of any individual or member of the collective would have no effect on the property, as the collective would continue even though membership might change. This is not to say that our general institution of succession is the only possible system. As many commentators have pointed out, it would be theoretically possible for property either to be destroyed on the deceased’s death or considered vacant and so capable of being asserted by the first taker.13 The first solution, even if possible, would naturally be extraordinarily wasteful of resources and the second could well lead to civil strife and anarchy. More feasible would be a system whereby the state would assume ownership of all private property on death, and as Atkinson states: … if a system of state or common ownership is desired, the abolition of inheritance would be a very effective device in the accomplishment of a socialistic scheme. Except for the possibility of gifts in the owner’s lifetime, all private ownership in land and the bulk of other private wealth would soon disappear.14

In considering the laws of the then Union of Soviet Socialist Republics, it may be noted that a decree promulgated in 1918 effectively provided that inheritance, both testate and intestate, was abolished and the [page 9] property of the deceased became the property of the state on death. It is noteworthy, however, that in 1964 the Civil Code radically altered that law and brought in a new system of inheritance not dissimilar to that which exists in Western countries, even though private ownership of property was still severely restricted.15 Most socialistic countries have similar systems of inheritance. Less drastic intervention by the state may take the form of taxation, and it is indeed common for many countries to levy taxation or death duties on a deceased estate, usually proportional to the value of that estate. There are two reasons for this, the most obvious being the raising of revenue, although the

overall revenue raised is usually quite small compared with other forms of taxation. At the time of writing, there are no succession duties or taxes as such of either a federal or state nature in Australia, although they were used as a revenue raising measure in the past.16 The second reason for such taxation is one of social policy; it operates as a restriction on private inheritance, and so promotes redistribution of wealth. The difficulty with such taxation is, of course, that sophisticated wealth planning mechanisms are inevitably utilised in that individuals are induced by the taxation system to dispose of assets during lifetime rather than on death. Avoidance methods abound, as do complex legislative anti-avoidance measures. It is probably true to say that, at least in respect of the more wealthy estates, in those countries that levy death duties the law of succession has a much more limited role to play than it does in those countries that have no such taxes. Finally, in considering private property rights and succession, commentators have pointed out that one should also consider the actual form private property takes, as this may also have an influence on the law relating to succession. While in past years the dominant form of property was land, and so succession rights were naturally and fundamentally concerned with that form of property, new forms of property provide new challenges for the law of succession. As an example, the phenomenal growth of superannuation funds in the last two decades, brought about by government policy dictating compulsory superannuation contributions and tax policy favouring the same, has meant that for a considerable number of Australians, such funds now serve as their major asset. Formerly, recipients were required to access such funds only as an income stream on retirement, so that on death, possibly the fund had considerably diminished, but recent changes have meant that this is no longer compulsory. As Lee points out,17 it is anticipated that as a result ‘a greatly increasing amount of assets derived from superannuation can be expected to flow to estates in the future’. [page 10]

The family and succession 1.11 Given the recognition of private property rights by the common law and the consequent right to succession of that property, a more fundamental issue is whether the law should impose restrictions on the actual persons who, or institutions which, may benefit through succession. Should there be complete freedom of testation so that a person is able to will his or her property completely away from the family unit of which that person formed part? Should there be some restrictions imposed so that family members are protected, for example, by receiving fixed proportions of the deceased estate? Or should there be no freedom of testation at all in that the possible beneficiaries and the extent of their benefits are fixed by law rather than by the testator? In the brief discussion of intestate succession above, it was pointed out that, should a person not leave a will, statutory codes in all jurisdictions in Australia provide detailed schemes for the distribution of the intestate’s property. The actual schemes are examined more fully below (see Chapter 10), but in general provide that the surviving spouse and/or children and/or proximate relatives are to take the estate in defined shares, so that the emphasis of succession rights in these circumstances is on the immediate family of the deceased. It is undeniable that the law of succession is primarily concerned with the institution of the family,18 and is arguably a branch of family law in that the death of a family member requires the redistribution of family property.19 That being the case, it could also be argued that intestacy should be the exclusive scheme of succession, for if total freedom of testation were allowed, the tendency would be towards the break-up of the family institution with the consequent burden of support being placed upon the state. The arguments against this are various and are well summarised by Atkinson: Psychologically a forced arbitrary division thwarts the property instinct. One obtains property in his lifetime and may do with it as he pleases — why should he not be permitted to appoint his successors? Akin to this is the argument that a plan of forced inheritance might discourage individual initiative and thrift. Such a scheme would also tend to destroy parental control, and

thus render family relations unwholesome. The testator would have no protection which would enable him to reward kindness or punish cruelty.20

It should also be pointed out that the dangers inherent in freedom of testation may be more apparent than real and can often be overstated. Thus, Unger has shown that if the rules of intestate succession are regarded as unsatisfactory, freedom of testation is desirable for the actual protection of the family institution.21 At one stage in Roman history, for example, certain children had no share in a deceased’s estate so that the propensity to make wills, and so not to die intestate, may well have been based on the desire to achieve a more fair and equitable division between [page 11] family members. Miller has similarly contended that the employment of the use as a wills substitute in medieval England was: … due not only to the fact that feudal incidents could be avoided, but also to the desire to make better provision for the family than the rule of primogeniture which otherwise applied.22

Conversely, of course, if the laws of intestate succession are regarded as satisfactory in respect of the family then, though freedom of testation may exist, it may be rarely exercised. The fact is that most countries have found a need to compromise between total freedom of testation on the one hand and the interests of the deceased’s family on the other. The compromise has taken a variety of forms, although two discernible trends emerge. In European countries such as France and Germany, for example, the immediate relatives of the testator have forced shares of which they normally may not be deprived. Freedom of testation rests only with that part of the estate not subject to the shares. The advantages of such schemes include the obvious certainty created, and equality of treatment between relatives. Unlike the system of family provision that operates in Australia there is no need to resort to court to determine the right. Of course, there may be equity arguments against equality of treatment in

that the deserving and undeserving, and the weaker and the stronger are treated in exactly the same manner. If, however, an object of the law of succession is to preserve and protect the family unit, then forced shares are an attractive means of doing so. Tyrannical parents should not be overlooked in respect of systems that do not have such rigid division. Fixed or forced rights may have an economic disadvantage, however, particularly in respect of agricultural land where forced division may lead to the breaking up of larger tracts of land into very small ones so that the land becomes economically difficult to utilise. As Atkinson points out: This tendency has been felt in France, where the decedent’s power to appoint his successors has been limited by the legitime. The typical small farmer in France does not own a single tract of land, but several tiny tracts as the result of frequent divisions among the heirs in earlier generations. Such a situation leads to many inconveniences. For example, the land is more difficult to cultivate because of the impracticability of using modern machinery.23

A similar system of fixed inheritance rights also exists in most states of the United States of America, although in that country the emphasis is on the protection of the surviving spouse and not all relatives.24 Both dower and curtsey survived there to a period much later than they did in English law and in some jurisdictions have now been subsumed under a general forced share in favour of the surviving spouse — a right that may be enforced against the express terms of the will. In addition, homestead [page 12] legislation and family allowances legislation also give protection to widows and surviving children in respect of rights to the matrimonial home and support during the period of administration. In sharp contrast to these schemes is the solution adopted in Australia, following the example of the New Zealand Testator’s Family Maintenance Act of 1900. The system was also adopted in England.25 It may be recalled from the earlier discussion of the history of English succession law that, after early

restrictions, there was a progressive move towards total freedom of testation. In the nineteenth and early twentieth centuries, it was possible for a testator to dispose of property as he or she wished, ignoring the claims of the family should that be desired. It must not, however, be thought that this was always the case, and indeed Lee makes the point that the law of succession in England was relatively unimportant at that time, and earlier, due to the device of the family settlement in respect of both real and personal property.26 Such settlements had the effect of tying up the property in the family, so that on death, control of the family’s economic destiny was provided for by the effect of a settlement already in place. Of course, such family settlements were not common at all in Australia and New Zealand and complete freedom of testation remained in respect of most estates. Considerations relating to the protection of the family of the deceased under such an unrestricted regime led to the passage of family provision (sometimes called testator’s family maintenance) legislation in all Australian jurisdictions.27 The essence of this solution is to allow a testator freedom of testation but at the same time to vest in the court a discretionary power, in defined circumstances, to order adequate provision for the proper maintenance of certain dependants of the testator, if the will fails to so do. The solution is therefore quite different from that adopted in the civil law countries, outlined above, which rely on fixed rights for protection. The obvious advantage of family provision legislation is its flexibility in that, like all discretionary powers, it enables a court to do justice in the individual circumstance of the case. Nevertheless, it does require the initiation of court proceedings, with associated legal costs, the actual proof of the conditions required for the court to act, and the discretion of the court to be exercised favourably. Faced with these hurdles, many potential applicants, particularly in respect of smaller estates, may well be reluctant to take proceedings. Moreover, members of the family, beneficiaries or otherwise, are left in a considerable state of uncertainty until the determination of the court proceedings and the application can cause disharmony.

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Other matters Indigenous perspectives 1.12 In Mabo v Queensland (No 2),28 the common law assumption of terra nullius in respect of the settlement of Australia by the English was rejected by the High Court of Australia. The assumption was that there was no existing law in place at that time. Aboriginal customary law in respect of native title was recognised by that case and this, of course, has had enormous legal and political effects in respect to land rights. In respect of succession, Australian Aboriginal customary laws relating to succession were the subject of examination by the Australian Law Reform Commission in 1989.29 Recommendations were made in that Report, particularly with respect to the laws of intestacy, in that provision should be made for an intestate Aboriginal estate to be distributed in accordance with the traditions or the customary laws of the deceased’s community. PostMabo, land held under native title is dealt with under the customary law. Succession to land by Aboriginal people not subject to native title is dealt with in the ordinary way, subject to specific statutory provisions in each jurisdiction. There is a limited provision in Western Australia and Queensland as to succession and a much wider one in the Northern Territory.30 The extent and meaning of this legislation is discussed in the Australian Law Reform Commission Report, noted above. More recently, the Law Reform Commission report was also considered by the National Committee for Uniform Succession Laws31 and the Parliaments of New South Wales and Tasmania have adopted most of those recommendations, based again on the Northern Territory legislation.32 The purpose and effect of that legislation is discussed in some detail in Chapter 10.

Comparative succession law 1.13 There is no doubt that Australia is a multicultural society and has experienced extensive migration from various other countries throughout the last two hundred years. In respect to succession law, as in any other legal area, this may at times pose considerable problems in the lawyer/ client relationship. These problems may relate to language but, more [page 14] particularly, a client originally from, say, a civil law country, may well have expectations that the succession law in Australia approximates that in the country of origin. An appreciation of that law may thus be helpful. As Croucher and Vines point out, there are a variety of legal systems which may be relevant in advising a client.33 In that text, there is a valuable survey of some of the different legal systems likely to have an impact in respect of migrants to Australia.

Conflict of laws 1.14 As there are eight separate state and territory jurisdictions in Australia dealing with the law of succession, and in some cases, dealing with that law in a different manner from other jurisdictions, there may well be problems relating to conflict of laws. A person may, for example, be resident in one jurisdiction on death, but may die intestate, for example, leaving property in other states and territories. Which intestacy rules apply to determine how the intestate’s residuary estate is to be distributed? These matters are beyond the scope of a text of this nature, but the reader is referred to the standard texts on conflicts of law that govern the matter.34

Uniform succession laws 1.15

Many of the problems associated with conflict of laws can be simply

alleviated if each Australian jurisdiction has uniform succession laws. Quite apart from conflict of laws problems there are other distinct advantages in such laws. There is no real justification for differing laws on all succession matters, purely based on geographical location, and, once in place, there can be developed a basis for a national jurisprudence on succession laws generally. There are also practical and procedural benefits. With these factors in mind the standing committee of Attorney-Generals some time ago established a National Committee on Uniform Succession Law to examine all aspects of Australian succession laws. Working mainly through the New South Wales and Queensland Law Reform Commissions, the Committee has produced a wealth of valuable material, including discussion papers and final reports on all aspects of succession law.35 [page 15] Unlike some areas of law reform, the recommendations have not been left in a vacuum, and in the last few years legislative activity on the first major project, that relating to the law of wills, has resulted in new uniform Wills Acts in most jurisdictions. This legislation is considered in detail in the body of the text. There has also been considerable modification of the existing intestacy laws in light of the Committee’s recommendations in New South Wales and Tasmania, with proposals that the other jurisdictions will follow suit. It is presumed that similar legislation will be adopted in the future in respect to family provision and administration and probate.

The future 1.16 Ideally, succession law, like all other laws, should as accurately as possible reflect the society in which it operates. This has informed much of the work of the Uniform Succession Law Committee. One of the biggest challenges has been to adapt succession law to more expanded notions of the

family and family relationships in modern Australian society. This is particularly relevant to the law in relation to intestacy and family provision, and an attempt has been made in the body of the text to explain these changes adequately. Other societal changes will also challenge succession law in the future. The growth in superannuation funds has already been noted: see 1.10. There is an ageing population in Australia, but one where life expectancy has increased dramatically from the last century or so when our current succession laws were basically formed. On the one hand, this has meant that the death of a parent may not have such a dramatic impact on children who, in many cases, are adults with incomes and substantial assets. Again, this can pose some problems for any reformulation of the law relating to family provision. On the other hand, it may also result in very little assets being available on death in any event, purely through income maintenance for a considerable period after retirement.36 New financial products, such as the reverse mortgage and the extremely long (for example, 50 years) mortgage also may play a role in this respect. Finally, ageing of the population may result in increased mental illness, so that the ‘statutory will’ regime, discussed in detail in Chapter 4, may assume more importance in the future. It may also result in the increased vulnerability of elderly testators to undue influence, a matter also considered in some detail in that chapter.

1. 2. 3.

4. 5. 6. 7.

These gifts are often referred to as ‘will substitutes’ and are examined in Chapter 2. See Whitelock (ed), Anglo Saxon Wills, Cambridge University Press, 1930, for a detailed examination of wills during this period. See generally, Pollock and Maitland, The History of English Law Before the Time of Edward I (2 vols), Cambridge University Press, Cambridge, 1968, vol 2, Ch VI; and Holdsworth, A History of English Law, 4th ed, Methuen, London, 1935, vol 3. If only a widow or only children survived, the dead part was one half and the other half went to either the widow or the children, as the case may be. See Atherton, ‘Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales’ (1980) 11 UNSWLJ 133. Lee, Manual of Queensland Succession Law, 6th ed, Law Book Co, Sydney, 2007, at [1.120]. The Statute of Wills 1540 only required the will to be in writing.

8. 9.

10. 11. 12.

13.

14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

28. 29. 30.

31. 32.

Australian Courts Act 1828 (UK). Generally, 25 July 1828 in New South Wales, Victoria, Queensland and Van Diemen’s Land (Tasmania). The date of settlement in South Australia (1836) and Western Australia (1829) was the reception date. Certoma, The Law of Succession in New South Wales, 4th ed, Law Book Co, Sydney, 2010, at [1.110]. Real Estate of Intestates Distribution Act 1862 (NSW) commonly referred to as Lang’s Act. For the history and developments, see Croucher and Vines, Australian Succession Law: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013, at [1.34]–[1.48]. For a much more detailed study by Dr S Petrow, see Dal Pont and Mackie, Law of Succession, LexisNexis Butterworths, 2013, Ch 21. See Friedman, ‘The Law of the Living, The Law of the Dead: Property, Succession and Society’ [1966] Wisconsin LR 340; Atkinson, Handbook of the Law of Wills, 2nd ed, West, 1953, pp 30–6; and Miller, The Machinery of Succession, 2nd ed, Dartmouth Publishing Co Ltd, 1996, pp 2–3. Atkinson, op cit, p 34. See Tay, ‘The Law of Inheritance in the new Russian Civil Code of 1964’ (1968) 17 ICLQ 472. The capital gains tax regime may, nonetheless, impact on beneficiaries in certain circumstances and there is a considerable body of law relating to estate planning of this nature in Australia. Unfortunately, an examination of that taxation regime is beyond the scope of a text of this nature. Lee, op cit, at [18.200]. See Bates, ‘Does the Family Have Legal Functions?’ (1979) 1 Can J Fam L 455. See Certoma, op cit, at [1.30]. Atkinson, op cit, p 36. Unger, ‘The Inheritance Act and the Family’ (1943) 6 MLR 215. Miller, The Machinery of Succession, Professional Books Ltd, Oxon, 1977, pp 16–17. Atkinson, op cit, p 34. For an entertaining account of the effects of this process, albeit in a fictional form, Emile Zola’s La Terre (Penguin Classics) is thoroughly recommended. For a general survey see Simes, Public Policy and the Dead Hand, University of Michigan Law School, Ann Arbor, 1955, Ch 1. Originally in 1939, under the Inheritance (Family Provision) Act 1938 (UK). Lee at [1.20]. See particularly, Atherton, ‘New Zealand’s Testators’ Family Maintenance Act of 1900 — The Stouts, the Women’s Movement and Political Compromise’ (1990) 7 Otago LR 202 and Atherton, ‘The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right’ (1990) 6 Australian Journal of Law and Society 97. (1992) 175 CLR 1. ‘The Recognition of Aboriginal Customary Laws’, ALRC Report No 31, 1989, at [331]–[343]. Aboriginal Affairs Planning Authority Act 1972 (WA); Administration and Probate Act 1969 (NT) s 71; Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld). National Committee for Uniform Succession Laws, Uniform Succession Laws: Intestacy, New South Wales Law Reform Commission, Report 116, April 2007. Succession Act 2006 (NSW) Ch 4; Intestacy Act 2010 (Tas). For an excellent review of the

33.

34.

35.

36.

background to these initiatives, see Vines, ‘Wills as Shields and Spears’ Indigenous Law Bulletin, November 2001; Vines ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Aust Indigenous L Rep 1. See also Vines, Aboriginal Wills Handbook, NSW Trustee and Guardian, 2013. Croucher and Vines, op cit, at [1.49]–[1.65]. See also Vines, ‘Cultural Conflict or Enriching Dialogue? Cross-Cultural Issues in Will Drafting’ (2008) 81 Reform 34; Wilson, Rosenman, White, Tilse and Feeney, ‘Cultural Considerations in Will-Making in Australia’ (2016) 41 Alternative Law Journal 27. See Nygh, Conflict of Laws in Australia, 8th ed, Butterworths, 2010; Mortensen, Garnett and Keys, Private International Law in Australia, 2nd ed, LexisNexis Butterworths, 2010; and Dal Pont and Mackie, Law of Succession, LexisNexis Butterworths, 2013, Ch 22. NSWLRC, Report 110: New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision, Report 110, May 2005; NSWLRC, Report 116: National Committee for Uniform Succession Laws, Uniform Succession Laws: Intestacy, New South Wales Law Reform Commission, Report 116, April 2007; QLRC, MP 28: National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision, Queensland Law Reform Commission, Miscellaneous Paper 28, 1997; QLRC, MP 29: National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills, Queensland Law Reform Commission, Miscellaneous Paper 29, December 1997, note that this is the same report as National Committee for Uniform Succession Laws, Uniform Succession Laws: The Law of Wills, New South Wales Law Reform Commission, Report 85, 1998; QLRC, Report 58: National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General, Queensland Law Reform Commission, Report 58, July 2004; QLRC, Report 65: National Committee for Uniform Succession Laws, Administration of Estates of Deceased Persons, Queensland Law Reform Commission, Report 65, April 2009 (in four volumes); VLRC, 1994: Victorian Law Reform Committee, Reforming the Law of Wills, Parliament of Victoria, Final Report, May 1994. Some of these issues are explored in detail by some recent and excellent socio-legal analysis. See particularly Tilse, Wilson, White and Rosenman, ‘Families and Generational Asset Transfers: Making and Challenging Wills in Contemporary Australia’, Report of Australian Research Council to Industry Partners, October 2012; Tilse, Wilson, White, Rosenman and Feeney, ‘WillMaking Prevalence and Patterns in Australia: Keeping it in the Family’ (2015) 50(3) Australian Journal of Social Issues 319.

[page 17]

The General Nature of a Will

2

Definition and characteristics of a will Definition 2.1 A will may be defined as a declaration of intention, in prescribed form, of the declarant in regard to the matters the declarant wishes to take effect on his or her death. The normal will appoints a person to act as an executor to carry into effect the testator’s intention and will usually dispose of the testator’s property to the persons named in it. The nature of a will may be further illustrated by considering a number of characteristics common to wills.

Declaration of intention 2.2 This characteristic is the central element of a will. It follows from this characteristic that a testator is completely free to make inter vivos transactions dealing with the same property he or she has left in the will. Thus, if a testator should make a will leaving her car to her daughter, there is nothing at all to stop her from selling that car in her lifetime.1 Further, an executor has the power to sell property in the course of administering the testator’s estate, even if that property is the subject of a specific gift in the will. Accordingly, if a testator in his will leaves his William Dobell painting to Albert, the executor nevertheless has the power to sell the painting to meet the liabilities of the estate.

Revocability 2.3 A will may always be revoked, even if the will contains a declaration that it will not be.2 No rights can arise under the will until the testator’s death and during the testator’s lifetime he or she may at any time revoke the will. Furthermore, even if the testator has entered into a contract not to revoke the will, revocation will still be effective, though the testator or the personal representatives may be subject to damages or other remedies for breach of contract: see 2.21–2.27 below. [page 18] As a result of these first two characteristics the right of beneficiary under a will is contingent, as distinguished from a transfer or gift, in that it gives no right to another, being unenforceable at law and therefore has no commercial value.3

Takes effect only on death 2.4 This is the true test of a testamentary instrument. As Lord Penzance stated in Cock v Cooke: ‘[I]t is undoubted law that whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigour and effect, it is testamentary.’4 In this respect, the intention of the person executing the document may be ascertained both from the language of the document and from extrinsic evidence.5 If the document is described as a will or codicil, then a rebuttable presumption arises that the testator intended it to take effect only at his or her death. The onus of proving that a document is a will where there are no indications of testamentary import, lies on those who propound it.6

Ambulatory in nature

2.5 This characteristic follows from the discussion above. As a will is ineffective until the testator’s death, the will may include property acquired by the testator after the date of the will, provided that property is owned by the testator at the date of death. For example, a testator leaves a gift to Bert of ‘all my motor vehicles’. The will is ambulatory in nature in that the gift will be effective to pass to Bert not only the motor vehicles owned by the testator at the time the will was made, and not subsequently disposed of, but also any motor vehicles acquired by the testator and still owned by him at the time of death. Thus, if in 2005 such a will was made and at that time the testator owned only a Ford Laser, but in 2012 acquired a Ferrari, both vehicles would pass under the will.7

Not limited to property 2.6 While it has been stated in the definition above in 2.1 that the usual will disposes of the testator’s property, a will is nevertheless still effective if no property at all is so dealt with. More specifically, a will may simply appoint executors, appoint guardians of infants, appoint trustees where a trust is created by the will, confer special powers on executors and/or trustees, and revoke previous wills.8 It may also provide directions as to burial and [page 19] cremation or use of the body for medical purposes, but the executor, as has been seen in Chapter 14, is generally not bound to follow them.

Prescribed form 2.7 A will must be in writing, signed by the testator or by some other person at his or her direction and in his or her presence, and it must be witnessed by two or more persons: see Chapter 5. One exception to these formalities relates to the category of privileged wills, which dispense with the

formalities in the case of military personnel engaged in actual military service and mariners or sailors at sea: see Chapter 5. The reader is also referred to the discussion in Chapter 5 of the judicial dispensing powers applicable in all Australian jurisdictions.

Unitary in nature 2.8 A person may execute more than one will or more than one codicil,9 but even so it is the aggregation of testamentary intention which constitutes the will of the testator. The words of the Privy Council in Douglas-Menzies v Umphelby10 are instructive: [I]t is the aggregate or the net result that constitutes his will, or, in other words, the expression of his testamentary wishes. The law, on a man’s death, finds out what are the instruments which express his last will. If some extant writing be revoked, or is inconsistent with a later testamentary writing, it is discarded. But all that survive this scrutiny form part of the ultimate will or effective expression of his wishes about his estate. In this sense it is inaccurate to speak of a man leaving two wills; he does leave, and can leave, but one will.

This will generally occur when the testator disposes of separate items of property by separate wills, or, more commonly, items of property held by the testator in separate countries. The latter situation can lead to problems as to revocation, especially in respect to the presence of a general revocation clause, the problems of which are specifically addressed in detail in Chapter 6.

Wills distinguished from other transactions and relationships Introduction 2.9 It should first be noted that provided a document is in writing and has been duly executed, it may constitute a will of a person whether it has been described as such in the document itself or not. Indeed, the author of the document may not even be aware that he or she has performed

[page 20] a testamentary act. The principle is that if there is proof, either in the document itself, or from clear extrinsic evidence, that it was the intention of the author of the document to convey by the document the benefits that would be conveyed by it if considered a will, and that death was the event that was to give effect to it, then whatever the document’s form, it may be admitted to probate as a will.11 Under this principle, letters,12 orders on a savings bank,13 a cheque to take effect after death14 and even a piece of cardboard executed and witnessed during a game of snooker15 have been held to take effect as testamentary dispositions. In all cases, the formalities of willmaking, as described in 2.7 had been complied with. Conversely, that which may appear at first sight as a testamentary disposition may not be such at all, and it is necessary to distinguish a will from certain other transactions and relationships. In these arrangements the death of the person making the arrangement does have an effect on the distribution of property, but the arrangement itself is not testamentary. A number of reasons may be advanced as to why these arrangements are made in substitution for the use of wills. First, a person may wish to avoid the delays and formalities of obtaining probate; second, they may wish also to avoid any possibility of a family provision claim (see Chapter 11); and third, there may well be a desire for secrecy in the matter of the settlor’s property. A number of these arrangements will be considered in turn.

Settlements inter vivos 2.10 Consider the following situation. Samuel is the owner of a property called ‘Redacre’. He transfers Redacre to a trustee to be held on trust for Samuel during his lifetime, and upon his death, to Samuel’s son, Simon, absolutely. Now it is correct to say that Simon’s interest in the property depends upon the death of his father, Samuel, but this is correct in only one sense and that is possession. Under this arrangement, Simon’s interest is said

to be vested when the transfer of Redacre to the trustee is made; it is a present right to future possession. In other words, Simon’s interest springs into being as soon as the disposition is made. The disposition confers an immediate interest on Simon, and therefore cannot be testamentary. In the words of Dixon and Evatt JJ in Russell v Scott: Succession post mortem is not the same as testamentary succession. But what can be accomplished only by a will is the voluntary transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased.16

Say that the facts are the same as outlined above, but Samuel reserves a power to revoke the trust. The arrangement is still not testamentary in [page 21] nature, as the existence of such a power of revocation does not prevent Simon’s interest arising immediately. The interest vests but can be divested if, and only if, the power is exercised by Samuel during his own lifetime. The law is probably best stated as follows: a settlement, whether revocable or otherwise, creates an interest in property, but a will only confers an interest upon death.

Life insurance policies: nominations 2.11 Little trouble is caused by such policies, as they are clearly not testamentary. Thus, if Donald should take out a policy of life insurance on his own life, and under that contract designates his spouse or anyone else to receive the proceeds of that policy when he dies, there is no need to comply with the formalities under the Wills Act. The reason for this is that there is no property Donald formerly had that is transferred on his death; but merely a contractual arrangement between Donald and the insurance company. The death of Donald simply makes the promise operative.17 If there is no nomination, however, the proceeds of the policy are regarded as property of the deceased and will, upon death, pass to the estate.

Pension and superannuation nominations General 2.12 The enormous growth in superannuation funds has been noted in 1.10. As is apparent from that commentary, the majority of such funds are statutory, and governed by the Superannuation Industry (Supervision) Act 1993 (Cth). In some funds, it is not possible for a contributor to make binding nominations for beneficiaries with the fund obliged to pay the benefit to the member’s personal representative on the death of the contributor. In such a case, the practical effect is that the proceeds will be paid to the estate and thus governed by the will or intestacy.

Binding nominations 2.13 Under the Superannuation Industry (Supervision) Act 1993 (Cth) s 59(1A) it has been possible (since 1999) for superannuation funds to provide for binding nominations in favour of dependents or legal personal representatives. Much will depend on the rules of the fund in question here, but where permissible, a nomination is valid for three years from the date that it is made and can be varied or revoked at any time. The prevalent case law here is that such a nomination is a non-testamentary act which therefore need not be executed in accordance with Wills Act formalities. The right of nomination is a contractual right belonging to the member of the fund and therefore is not testamentary in nature. [page 22] In Baird v Baird,18 for example, the Privy Council held that such a nomination did not amount to a disposition of property to take effect on death, but rather was to be classed as similar to a revocable power of appointment under an inter vivos settlement: ‘the nominator retains no

proprietary interest in his contributions but receives instead such rights, including the right to appoint interests in the fund to take effect on the occurrence of specified contingencies, as the trusts of the fund confer upon him.’19 Their Lordships cited the decision of Megarry J in the case of Re Danish Bacon Co Ltd Staff Pension Fund Trusts20 in support of this conclusion. Megarry J, on facts similar to Baird v Baird, held that the nomination took effect as a contractual arrangement and not as a disposition by the deceased. He pointed out that the contributions and interest did not come to the deceased and pass on from his will or nomination, but rather went directly from the fund to the nominee. Australian support for this proposition may be found in the New South Wales case of McFadden v Public Trustee for Victoria,21 where Holland J similarly stated: In my opinion, the fact that it was a term of the contract that the employee/ contributor could nominate the beneficiary of the trust in a prescribed manner at any time up to the date of his death did not convert the transaction from a contract into a testamentary disposition. A nomination of the beneficiary to take under the trust is, in the present context, in my opinion, the exercise of a contractual right, not a testamentary power. Any dispositive effect that the nomination may have derives from the contract and the exercise of contractual rights inter vivos and not from the death of the contributor.22

Conversely, there are decisions in which the legal analysis of the superannuation or pension scheme in question reveals that the nomination may be testamentary in character and therefore subject to Wills Act formalities. If the scheme permits the contributor to retain substantial control over the fund, including full disposition during the contributor’s lifetime (as opposed to the situation where the interest in the fund is non-assignable or where the power of the nomination is subject to the approval of the trustees of the scheme), then it may well be that the correct legal analysis is that the contributor retains a proprietary interest in the fund, and therefore the nomination will be testamentary in nature.23 [page 23]

Joint tenancies 2.14 A common substitute for a will, the creation of a joint tenancy, is not testamentary in nature. Suppose that Sarah and Francis purchase property as joint tenants, and Francis subsequently dies. Sarah will, under what is termed the right of survivorship, be solely entitled to the property. Although Sarah ‘benefits’ by Francis’ death, the special nature of a joint tenancy, which ensures that each joint tenant holds nothing separately and everything together with the other joint tenant, means that there has been no real succession to Sarah of Francis’ interest. Sarah actually acquired that interest on purchase of the property: it is simply enlarged by Francis’ death.24 Also note that, should Francis make a will of the property subject to the joint tenancy, that will is completely ineffective (for example, if he disposed of his ‘share’ in the joint tenancy to Robert). Sarah will directly be sole owner, and Robert will receive nothing on Francis’ death.

Joint banking accounts 2.15 This topic has generated a good deal of academic literature, and poses some theoretical problems.25 Nevertheless, it is clear from the leading Australian authority of Russell v Scott26 that in general the opening of a joint bank account is not a testamentary act required to be executed in the manner prescribed for the execution of testamentary documents. Thus should Alice open an account with a bank and deposit funds in that account on the terms that either herself or her friend Amy may make withdrawals, and that on the death of either Alice herself or Amy, the survivor should be entitled to the proceeds, then the amount standing in the account at death does not form part of the deceased’s estate, but will go to the survivor. Of course, the arrangements may be more subtle than this. Take the facts of Russell v Scott itself. In that case, a spinster of 74 years of age opened a joint account with the Commonwealth Savings Bank in the names of herself and her nephew. The nephew had been assisting her with her business dealings but the spinster contributed all the funds to the account. The nephew and the

aunt both signed withdrawal forms and the nephew used these forms to withdraw cash to attend to the aunt’s liabilities. Some two years later, the aunt died, leaving a will in which she left her residuary estate to the nephew and one Scott in equal shares. The question for decision was whether the amount standing to credit in the bank account at the aunt’s death formed part of the residuary estate, in which case it would be shared equally between the nephew and Scott, or whether the nephew was solely entitled. [page 24] The High Court held that the nephew was solely entitled. The court found that while the nephew was not entitled to any benefit from the account during the aunt’s lifetime, her intention was that the nephew should take the balance of the account if he should survive her. The expression of the aunt’s intention was not of testamentary character that was required to be executed as a will. The reasoning of the court is best stated in the joint judgment of Dixon and Evatt JJ: We are thus called upon to decide whether the survivor of two persons opening a joint bank account is beneficially entitled to the balance standing at credit when the other dies, if all the moneys paid in have been provided by the deceased acting with the intention of conferring a beneficial interest upon the survivor in the balance left at his or her death but not otherwise, and of retaining in the meantime the right to use in any manner the moneys deposited. The contract between the bank and the customers constituted them joint creditors. They had, of course, no right of property in any of the moneys deposited with the bank. The relation between the bank and its customers is that of debtor and creditor. The aunt and the nephew upon opening the joint account became jointly entitled at common law to a chose in action. The chose in action consisted in the contractual right against the bank, that is, in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn. At common law this chose in action passed or accrued to the survivor.27

In other words, the interest of the nephew was conferred by the aunt on him when the aunt actually opened the joint banking account. Consequently, it was not testamentary. In practical terms, therefore, the majority of such arrangements are to be

viewed as non-testamentary transactions and the survivor will have immediate access to the balance of the account on the other joint account holder’s death. The sum outstanding in the account does not form part of the estate of the testator, there is no need to await probate, and a banker can safely pay that sum to the survivor. It should be pointed out, however, that not all joint accounts are of this nature; it may well be that a customer of the bank has merely entered into a joint banking arrangement purely for personal convenience and with absolutely no intention of providing anything for the other joint holder should they die first. If this is the case, then the survivor is not entitled to the balance and it can form part of the customer’s estate. The aunt’s intention in Russell v Scott28 was to provide a benefit to the nephew, but if that intention had not been found to have existed, then the balance of the money in the account would have formed part of the aunt’s estate, and would not have gone solely to the nephew. In other words, in these circumstances there is a resulting trust in that the balance of the account, while legally held by the survivor, is held in equity on trust for the estate.29 Much will therefore depend upon the nature of the arrangement. [page 25]

Donatio mortis causa 2.16 Otherwise known as a gift in contemplation of death, a donatio mortis causa is a strange creature indeed, lying midway between a gift inter vivos and a testamentary legacy. The important thing to note for our present purposes is that the gift does not have to be executed in accordance with the manner prescribed for wills. A valid donatio has the consequence that the subject matter of the gift will not form part of the estate of the deceased but rather will pass to the donee. It may be defined as a revocable gift by a person made in contemplation of his or her impending death, and conditional on that death, the justification for its recognition being well stated by Lord Cowper in

Hedges v Hedges: Where a man lies in extremity or being surprised with sickness, and not having an opportunity of making his will, but lest he should die before he makes it, he gives with his own hand his goods to his friends about him: this, if he dies, shall operate as a legacy; but if he recovers, then does the property thereof revert to him.30

The authorities31 make it clear that there are three essential requisites for a valid donatio mortis causa: (1) the gift must be made in contemplation of the donor’s death; (2) the gift must be conditional upon the death of the donor; and (3) the donor must part with dominion over the subject matter of the gift.

Each of these requirements will be considered in turn.

Donatio mortis causa: in contemplation of death 2.17 It has often been said that there is nothing more certain than death, but to satisfy this requirement, something more than a mere recognition of the inevitability of death is required. The donor must contemplate a comparatively early death (not necessarily immediate) and usually from an illness.32 Old age per se is not sufficient.33 This requirement has recently been subject to some detailed discussion by the United Kingdom Court of Appeal in King v Dubrey.34 There was an analysis of an earlier decision of the High Court in Vallee v Birchwood,35 which had held that the question is not whether the donor had good grounds to anticipate his imminent demise or whether his demise proved to be speedy as he may have feared, but whether the motive for the gift was that he subjectively contemplated the possibility of death in the near future. The judge stated36 that the fact that the case law requires only that the gift be made in contemplation of death and not necessarily expectation of death [page 26] supports this view. The Court of Appeal in King v Dubrey37 emphatically

overturned this decision, reiterating that for the first condition to be satisfied, the donor must have good reason to anticipate death in the near future from an identified cause. It was not enough for the donor to be approaching the end of their natural lifespan when they make the gift and then in fact die. If the gift is made in contemplation of death in this sense, it appears that the donation will still be valid even if the donor happens to die from a different cause than that contemplated. Thus, it has been held that if a donor contemplates death from cancer but happens to die from pneumonia, the gift is still effective.38

Donatio mortis causa: conditional on death 2.18 A valid donatio mortis causa is not absolute until the death of the donor, and is conditional upon that death. The gift is in the meantime revocable: it is essential that there must be: … a clear intention to give but only if the donor dies, whereas if the donor does not die then the gift is not to take effect and the donor is to have back the subject matter of the gift.39

The intention of the donor in this regard can be express but is usually inferred from all the surrounding circumstances including the language used by the donor.40 It follows that if the gift is not so conditional, then it can only take effect as a gift inter vivos provided it complies with the requisite formalities for such gifts. If it does not, then it will fail altogether.41 It follows also from the conditional nature of the transaction that the donor may revoke the gift before his or her death, for example, by resumption of the dominion over the property, the subject matter of the gift, although an intention to so revoke must be shown. In Harneiss v Public Trustee,42 for example, the donee of a passbook savings account after delivery voluntarily returned the book to the donor to check the state of the account. The book remained with the donor until his death, but the donation was nevertheless effective as there was no intention to revoke.43

Donatio mortis causa: parting with dominion — delivery

2.19 This is the third essential element of a valid donatio mortis causa and causes the most problems. The first self-evident point to note is that [page 27] the delivery must be made with the intention of parting with dominion in the property that is the subject matter of the gift. Thus if property is delivered to another merely for safekeeping, for example, then the requisite intention is lacking.44 If that intention is present, then the further problem that arises is what will constitute sufficient delivery. A number of general principles emerge from the authorities: (1) Delivery may be made either before or after the expression of intention to make the gift.45 (2) There must be actual delivery to the donee or to someone acting on his or her behalf.46 (3) The delivery must be made either by the donor or by the donee obtaining possession by acting under the instructions of the donor. In Re Weston,47 for example, the donor, while ill in hospital, asked his fiancée to obtain his Post Office savings bank book, gave her the key to the drawer in which it was placed, and told her to keep it. After she had so obtained possession she offered the key and the book back to the donor, but he again told her to keep them. It was held that there had been sufficient delivery. The more recent English Court of Appeal decision in Woodard v Woodard48 provided a neat illustration of this proposition. There the defendant’s father was admitted to hospital suffering from leukaemia and died four days later. While the father was in hospital the defendant was in possession of the father’s car and a set of keys. Three days before he died the father told the defendant that he could keep the keys as he, that is, the father, would not be driving the car anymore. Despite the fact that the defendant was already in possession of the car, it was held that there had been sufficient delivery. (4) While the law generally requires the actual handing over of the goods in question, this is often impossible to satisfy if the goods are bulky in nature. In these cases, it is sufficient if the means of taking possession of the item in question is handed over, for example, the delivery of keys to a receptacle where the item is kept. Evershed MR in Birch v Treasury Solicitor49 made the following comment (at 308): As Lord Hardwicke observed in the course of his judgment in Ward v Turner, mere symbolic delivery will not suffice. It might therefore be supposed that there could be a valid donatio only of such subject matters as were capable of actual manual delivery. But this is clearly not the law. Thus (as Lord Hardwicke himself noted) where the thing given is of a bulky nature, the handing to the donee of the key to the box or place where the thing is kept will be sufficient and is not to be regarded as merely

symbolic. [page 28] The donee in such a case is put in possession of the very means by which the item may be obtained. In Woodard v Woodard50 discussed above, in (3), it was argued that much more was needed than the mere handing over of the keys to the car to constitute a sufficient delivery. The logbook for the vehicle and all other sets of keys, if they existed, should also have been handed over. This argument was rejected by the court. More difficult problems are caused by choses in action. These, of course, are incapable of physical delivery but it would appear that the delivery of the document which would be necessary for the donor to produce in evidence in court, as indicia of title to the chose, if he or she were suing upon the chose, will be adequate.51 Many cases have concerned the attempted donatio of balances in bank accounts. Will the mere handing over of a bank passbook suffice? In the leading case of Birch v Treasury Solicitor52 the English Court of Appeal held that the test was whether the instrument handed over amounts to a transfer as being the essential indicia of title, possession of which entitles the possession to the money purported to be given. In a number of cases, a savings bank passbook has been held to satisfy this test.53 The document delivered need not contain a record of the essential terms of the contract that make up the chose in action. It should be noted, however, that the deposit book for a cheque or current account cannot be the subject of a delivery for a valid donatio, it being only a symbol of ownership,54 and a cheque drawn by the donor in favour of the donee likewise cannot be the subject matter of a donatio as it is regarded only as an order by the donor to his or her bankers.55 The authorities have recently been carefully reviewed by Brereton J of the New South Wales Supreme Court in Re Tawil v Public Trustee; Estate of Biriukoff.56 While conceding that the authorities have established that the deposit book for a bank savings account is a sufficient indicium for its delivery to constitute a valid donatio mortis causa it was otherwise where (as in the case itself) all that was delivered was a number of bank documents in respect of an account operated by the deceased. Those included statements which were not certificates of deposit but rather merely showing balances and accrued interest. It was held that there had been no delivery, as delivery of the actual indicia of title, as distinct from mere evidence of title, must be established. More recently, the matter was considered by White J [page 29] of the New South Wales Supreme Court in Hobbes v NSW Trustee and Guardian.57 There his Honour heard that delivery of a bank passbook and card detailing the terms and conditions of a stated account was a sufficient delivery after a considered review of all previous authorities, and on all fours with the passbooks, considered in Birch v Treasury Solicitor.58 However, there was also a handing over of a document relating to a term deposit issued by a building society

in a booklet called ‘Fixed Term Investment’. As his Honour noted,59 there was no evidence that there was any need to present the card to make a withdrawal or otherwise deal with the account. Hence, there was an argument that the card was not an essential indicium of title to the deposit. In rejecting this, his Honour made the following comment:60 In this case I infer that the card was created contemporaneously with the deposit. It was the proof given by the Building Society to Mr Gibson of the deposit. In all likelihood he would not have needed to produce the card in order to redeem the deposit, provided he produced satisfactory proof of identity. The St. George Building Society would have had its own record of the deposit. However, if it were necessary for Mr Gibson to sue to recover the debt, then production of the card to prove the fact of the deposit, to prove that the deposit was made by him, and the terms on which the deposit was made, would be as essential as would have been proof of the form of receipt provided to the lender in Moore v Darton. In my view, notwithstanding the absence of any statement on the document that it needed to be presented to effect a withdrawal of the deposit, the document was the indicium of title, delivery of which made the gift of the deposit moneys effective. In respect to share certificates, there is Australian authority, in Public Trustee v Bussell,61 to the effect that such a delivery may amount to a valid donatio mortis causa as such a certificate constituted not merely evidence of a shareholding but the actual indicium of title. This holding was contrary to a number of earlier English decisions.62 By analogy with bank passbooks, where it is unnecessary to have a signed withdrawal slip, in the case of shares, it now appears also unnecessary to have a signed share transfer. New business practices and technology, particularly in relation to banking and other commercial transactions, have not yet been considered under the topic of donatio mortis causa but no doubt will cause concern in relation to the delivery requirement should the issue arise.

[page 30]

Property the subject of a valid donatio 2.20 It has been constantly assumed that a valid donatio cannot be made in relation to real property, and was limited to personalty only. That assumption has been confirmed by two Australian decisions,63 but the English Court of Appeal in Sen v Headley,64 decided in 1991, held otherwise. There it was held that a donatio mortis causa of unregistered land by delivery of title deeds was possible. In this event, the doctrine would operate by way of a constructive trust. That decision was itself upheld by the United Kingdom Court of Appeal in King v Dubrey.65 The implications of these decisions in Australia have yet

to be fully considered, but there is an obiter comment of Cohen J in Public Trustee v Bussell66 to the effect that the Australian position may need to be reassessed, particularly on the constructive trust issue. The matter has more recently been considered by White J of the New South Wales Supreme Court in Hobbes v NSW Trustee and Guardian.67 There had been delivery of keys to an apartment by the donor. His Honour opined that if necessary to decide the question as to whether there could be a donatio mortis of real property, he would follow the earlier decision in Watts v Public Trustee and Bayliss v Public Trustee, but it was not necessary to reach a concluded view because there had only been delivery of the keys (and a Council rates notice) and therefore no delivery of the means of getting at the property. It may have been otherwise if a certificate of title had been delivered, in that it would have been the delivery of the essential indicium of title. Obviously, the unique features of the Torrens system registration in Australia would need to be considered in detail. Lee68 has argued that there is no reason in principle why delivery of transfer documents under the Torrens system could not constitute a valid donatio of Torrens system land, as those documents enable the donee to become the registered title-holder. Even if this is accepted, it is more debatable whether the simple delivery of a Certificate of Title, without more, would be sufficient.69 In any event, with the advent of computerised (and thus paperless) land titles, the problem is hardly likely to arise, at least in respect to Torrens land which now comprises over 95 per cent of all land titles in Australia.70 [page 31]

Contracts relating to wills Introduction 2.21

Contracts relating to wills are of two main types:

(1) a contract to make a will or to make particular provisions in a will; and

(2) contracts not to revoke a will once made.

Thus, Thomas may make a promise to his sister Jane that should Jane move into his house and look after him until his death, he will make a will leaving Jane the house on his death. Alternatively, Thomas may have already made a will gifting the house to Jane. He then promises her that if she should move in and look after him for the rest of his life, he will not alter the will. What is Jane’s position if, in the first case, no will is made in her favour, or, in the second case, Thomas alters the will and leaves the house to another? It has already been pointed out in 2.3 above that one of the essential characteristics of a will is its revocability. Consequently, probate of a last will of the deceased will be granted, irrespective of contractual promises, and if there is no will, the property of the deceased will be distributed in accordance with the rules relating to intestacy. Therefore, if the will is altered by Thomas in our second example above, the altered will is the one admitted to probate, and if there is no will by Thomas, using the first example, an intestacy will result. Nevertheless, this does not mean that the contract is of no effect, and indeed such contracts can be valid and enforceable. In general, such contracts usually, but not invariably, relate to close personal or family relationships, involving care and services to the testator, the consideration for which is a promise by the testator to leave the carer property or not to alter the will to the detriment of the carer. As such, the factual circumstances may also give rise to a claim of proprietary estoppel, although that doctrine, extensively dealt with elsewhere,71 is not considered in this text. It may also, again in appropriate circumstances, give rise to a constructive trust claim.72 Again that doctrine is extensively considered elsewhere.73 The principles relating to this area of the law are often difficult to comprehend and some fine distinctions between different factual situations often need to be made. A useful summary of the relevant law is given in the judgment of the Judicial Committee of the Privy Council in Schaefer v Schuhmann.74

[page 32]

Contracts to leave legacy 2.22 If the benefit contracted for is a legacy, for example the testator promises to leave $10,000 to the promisee, the testator is at liberty to dispose of any property during his or her lifetime as he or she thinks fit. On the testator’s death, however, the contract creates a debt against his or her estate. Thus if the promised $10,000 is not provided for by the will, or if it is and the testator dies insolvent, the promisee can claim payment from the estate.75

Contracts to leave specific property 2.23 If the contract is to leave specific property, such as a house, and the testator fails to do so, the promisee is, in the words of their Lordships in Schaefer v Schuhmann,76 in a much stronger position than if the contract is simply to leave a legacy. First, if the testator sells the property during his or her lifetime, the promisee may treat that sale as a repudiation of the contract and sue for damages accordingly.77 Second, the promisee may obtain an injunction against the sale78 and/or a decree of specific performance creating an equitable interest in the property.79 Third, if the testator should die insolvent, the property that is the subject of the promise forms part of the general estate available for the payment of debts, but the promisee may rank as a creditor in competition with other creditors of the same degree.80

Contracts to leave ‘all property’/residue 2.24 Unlike a contract for specific property, a contract to leave the promisee all the property or a share of the property of the testator does not create a debt against the estate. In other words, the promisee is entitled only to such of the estate as constitutes residue upon the completion of administration. The promise is thus postponed to the general creditors.81 What is the situation if the testator, having made the promise, disposes of

the property during his or her lifetime? If the contract itself contains a specific term that restricts the right of the testator to do so, then quite clearly the contract is breached. If there is no such term, then it would appear that the testator is free to make any inter vivos dispositions he or she wishes. If, however, the transaction is substantially testamentary in character, that transaction is regarded as being in breach of the contract. Consider the case of Palmer v Bank of New South Wales.82 There the [page 33] testator promised that he would not alter or revoke his will, which left all his estate to the plaintiffs, in return for a promise on the part of the plaintiffs that they would look after him for the rest of his life. The plaintiffs fulfilled their part of the bargain and the will was not altered or revoked by the testator. However, after the contract was made the testator opened a joint bank account with one Mrs Brooks. Under the arrangement the survivor was to be entitled to the balance in the account. The testator paid a fairly substantial amount into this account, and after his death the plaintiffs argued that the testator had broken an implied term in the contract not to deplete the estate. The moneys put into the account by the testator should therefore be held by Mrs Brooks on trust for the estate. These arguments were rejected by the High Court. It was held that there had been no breach of contract, the testator being free to make inter vivos dispositions as he pleased: the promise not to revoke or alter the will did not curtail that right. An express contract that the testator would not deplete the estate was necessary and did not exist on these facts. In the words of Barwick CJ: It is necessary at the outset to emphasise that the promise which has been found was no more at best than a promise to leave to the appellants by will the deceased’s estate at death. It is well established that such a promise does not involve an obligation not to part with any property during life; and, in any case, the primary judge did not find that a promise had been made to

keep until death the assets owned at the time of the exhibition of the will, or at least any particular assets.83

The High Court was also faced with an argument that the transaction (that is, the opening of the joint bank account) was testamentary in nature. As has been pointed out above, if the transaction, while technically inter vivos, is in nature and substance testamentary, then that will amount to a breach of the promise. The court reiterated this rule, but held on the facts that the transaction could not be so classified.84 It was not a transaction under which the money contributed was reserved by the testator exclusively for himself for his life. Both parties contributed to the money in the account and both were entitled to make withdrawals therefrom, and the survivor was to have absolute title to the account at the death of the first to die. For a transaction to be substantially testamentary in nature it would have to be a transaction whereby the promisor has placed his property in the name of another and for the benefit of that other on his death, while really retaining it for himself in his lifetime.85 [page 34] Again the words of his Honour, Chief Justice Barwick, are instructive: But such a promise to leave by will does mean that no property will be disposed of in lifetime by a transaction which, in substance, if not in form, is testamentary: that is to say, such a promise means that the only testamentary disposition of the property of the promisor shall be by will. A transaction by which the promisor has placed his property in the name of another and for the benefit of that other on his death, whilst really retaining it for himself in his lifetime, is, for the purpose in hand, a testamentary transaction which would be in breach of a promise to leave by will. The underlying reasoning of those cases is that, whilst the promisor is free to divest himself of the property by a transaction inter vivos, he may not either enter into an illusory transaction whereby he appears, contrary to reality, to have parted with his property, or into a transaction whereby he keeps an interest in the property during his lifetime, so arranging the transaction that the property passes on his death to the person whose name he has transferred it. So to do is to deal with the property in a testamentary fashion in breach of the promise.86

While this principle has been consistently affirmed by the courts,87 it has

found difficulty in application. Gregor v Kemp88 is often cited as an example of application of the principle in that the testator was not permitted to defeat the effect of a promise to give half of her property on her death to her son, by a donatio mortis causa to a daughter and grandchildren. However, this was alternative ground for the decision, and in Barber’s words,89 ‘This aspect of Gregor v Kemp received less than an enthusiastic endorsement from Barwick CJ in Palmer v Bank of New South Wales’. The authorities are usefully analysed in that article.

Contracts not to revoke or alter wills 2.25 A promise not to revoke or alter a will is a valid contract. Consequently, while a court cannot restrain the revocation of the will itself, it can restrain the disposal of any property in contravention of the contract90 and may award damages.91 It should be noted, however, that a will may be revoked by operation of law as well as voluntarily. In all jurisdictions in Australia it is provided, for example, that where a person makes a will and subsequently marries, the will is revoked automatically on that marriage: for this rule and its exceptions, see Chapter 6. In Re Marsland; Lloyds Bank Ltd v Marsland92 the testator, in a deed of separation from his first wife, promised not to revoke his will. After her death, he remarried, and it was held that there had been no breach of [page 35] contract. It is thus only where the testator voluntarily revokes his or her will that a breach will be committed.

Contracts and family provision claims 2.26 The law relating to family provision, or testator’s family maintenance, is dealt with in Chapter 11. The interesting point that arises in relation to

contracts and wills is whether a contract can take precedence over such a claim. In Schaefer v Schuhmann,93 for example, the testator made a will in which he left legacies to his four daughters and the residue of his estate equally between his three sons. After his retirement he engaged a housekeeper to look after him, paying her a weekly wage. A few months later he agreed with the housekeeper that she would no longer be paid, but if she looked after him until his death, he would leave her his house and contents. A codicil to the will was executed by the testator to give effect to this promise, and the housekeeper did indeed look after him until his death some six months later. Probate of the will and codicil thereto was granted, but the four daughters then made application under the Testator’s Family Maintenance and Guardianship of Infants Act 1916–1954 (NSW) for an order that their share of the testator’s estate be increased in that adequate provision had not been made for their proper maintenance and support. At first instance, the court agreed with the daughters’ claim, but the question that eventually fell to be decided by the Judicial Committee of the Privy Council was whether the burden of the increase could come from the housekeeper’s property, left to her under the codicil. The housekeeper argued that the burden of the order should be cast solely on the residuary estate and not on property that was the subject of a testamentary contract. The Privy Council agreed with the housekeeper, holding that the contract had to be performed before any claims for family provision could be entertained. That is, the court had no power to throw any of the burden of such family provision orders on the property devised to the housekeeper under the contract. As has been pointed out,94 however, this case involved a contract relating to a specific asset (that is, the house) and the result may well have been different if the promise had merely been to leave the residue of the estate. It has been suggested that if the latter were the case, then residue means residue after payment of lawful claims, and this would include any claim for family provision. In 2003, the High Court of Australia had an opportunity to consider the

decision in Schaefer and declined to follow it, preferring the earlier Privy Council decision emanating from New Zealand in Dillon v Public Trustee,95 which had held that property the subject of a contract was indeed available to satisfy an order under the family provision legislation. It also overturned the decision of the Tasmanian Court of Appeal [page 36] in Re Richardson’s Estate,96 which had been relied upon by the Privy Council to support its decision in Schaefer. The case was Barns v Barns.97 It involved mutual wills (as to which see 2.28–2.30 below). The effect of the wills and deeds which accompanied them was that the adopted daughter of the testators was to be excluded from any benefit from the estate of the testators, the estate of which was effectively to pass to the son of the testators. The daughter then made application for family provision under the South Australian legislation. It was argued that the contractual arrangements took precedence over any possible family provision claim. This argument was successful before the South Australian court but overturned by the High Court.98 The High Court held that the meaning of the word ‘estate’ in the family provision legislation included property that was affected by a contract. This was simply a matter of statutory construction. As stated by Kirby J: Private contractual arrangements, otherwise valid and binding between the parties and their successors must, once valid legislation impinges on the conduct of the parties, be understood and appreciated subject to the operation of that legislation construed so as to achieve its purpose as expressed in the chosen language … the mutual promises of the deceased and the second respondent [the other testator] to make a specified testamentary disposition, however according to the law, were subject to the potential impact of the restriction on testamentary disposition for which the Act provided. Only this construction gives effect to the purpose of the Act according to its terms.99

Gleeson CJ also pointed out100 that while the effect of that legislation could have been avoided by an inter vivos disposition so that the deceased died with

no estate, such a result did not follow simply by a promise to make a certain disposition. This was a significant decision in Australian estate planning law. Except in New South Wales which has the concept of a ‘notional estate’ in the family provision legislation (discussed below in Chapter 11), allowing the ‘clawback’ of certain dispositions, many arrangements in the other jurisdictions had been made on the basis of the now overturned decision in Schaefer, which was accepted as orthodox.101 All have now required review in light of the decision in Barns. [page 37]

Formalities and enforceability of testamentary contracts 2.27 Contracts for the sale of land require conformity with the Statute of Frauds,102 that is, there must be a note or memorandum in writing of the contract, signed by the party to be charged or by some other person authorised by him or her. If, therefore, the testamentary contract relates to land, a note or memorandum in writing will be required for its enforceability,103 but a contract not to revoke an existing provision in a will does not fall within the Statute of Frauds,104 even though the contract does relate to land. Even if there is no note or memorandum in writing, it may still be possible to enforce the contract under the equitable doctrine of part performance. It should also be noted that if the testamentary contract is unenforceable through those doctrines, it may still be possible for the promisee to establish a constructive trust or a proprietary estoppel.105

Mutual and joint wills Mutual wills: introduction

2.28 A typical example of a mutual will is found in the leading Australian case of Birmingham v Renfrew.106 In that case it was orally agreed between a husband and his wife that the wife should leave her property by will to the husband, and that the husband should also make a will leaving his property to the wife or, if she predeceased him, to four relatives of the wife. They also agreed not to revoke and wills were executed by both accordingly. Following this, the wife became a beneficiary of a very substantial estate under her uncle’s will. She predeceased the husband. He subsequently made another will revoking his prior will under which he benefited his own relatives and not those of the wife. What was the legal position of the wife’s relatives? It has already been mentioned that it is a fundamental principle that a will may always be revoked: see 2.3 above. Consequently, the husband’s last will was quite properly admitted to probate. Nonetheless, the High Court found that both husband and wife had entered into a binding agreement, the effect of which was to bind the parties not to revoke the wills once made without the knowledge of the other party, and certainly not after the death of the other party. That contract gave rise, in equity, to a constructive trust. In the words of Dixon J: [page 38] It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It expects to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will which he undertook would be his last will.107

The effect of this holding in the instant case was that the wife’s relatives

could enforce the trust against the husband’s executors, so that after administration, the estate should be paid to them. It has also been established in Re Dale,108 that the mutual will doctrine also has application even though the surviving testator does not take a benefit under the will of the first to die. This is explicable when the true basis for the imposition of the trust is the prevention of fraud. Consistent with this basis, it is also the case that the doctrine has no application if notice of revocation by one party has been given to the other109 so that where there is a unilateral revocation by one party during the joint lives of the parties and that party is the first to die, the survivor becomes free to alter his or her will and is not entitled to a trust in his or her favour.110

Proof of agreement and other essential elements 2.29 It is obvious from the above discussion that the essential element in mutual wills is the agreement between the parties that the wills once made will not be revoked without the knowledge and the consent of the other. It is only where such an agreement can be proved that the courts will enforce the constructive trust. Say that a husband, Joseph, and his wife, Rachel, make identical wills leaving their property to each other, with provision for Joseph’s relatives, if the other dies first. Joseph does die first. Rachel forms another relationship and makes a new will in favour of her new partner, James. Is the will effective, or is James fixed with a constructive trust to hold the property on behalf of Joseph’s relatives? The answer will depend very much on what was agreed between Joseph and Rachel. The mere fact that two persons simultaneously make identical, or almost identical wills, is not itself evidence of an agreement [page 39] not to revoke. That agreement must be strictly proved. It is not therefore

sufficient to show that Joseph and Rachel each agreed to make the wills in the form they did: it is also necessary to prove that they agreed not to revoke the same without the consent of each other.111 The best way to supply such proof is to actually record the agreement in the will itself. Quite apart from proof of the agreement, there are other essential elements which are needed to be conclusively satisfied for enforcement of the agreement. These have been conveniently set out in the recent judgment of McMillan J of the Victorian Supreme Court in Flocas v Carlow and Swift.112 In a detailed and scholarly judgment her Honour examined all English and Australian authorities decided on mutual wills. She identified the following as essential elements: the agreement must be a contract, it must be for valuable consideration, the agreement must be sufficiently certain and intended to be legally binding, the agreement must be one that is not revocable after the death of one of the parties and, as is obvious, their agreement cannot prevent a grant of probate of a later will executed in breach of the agreement. Further, the agreement must be specifically enforceable, may be enforced by a third party beneficiary, and if the agreement concerns land it must comply with the Statute of Frauds, unless an exception to the Statute applies.113

Marriage and mutual wills 2.30 In all jurisdictions, legislation provides that a will is revoked by a subsequent marriage: see Chapter 6. Revocation is by operation of law, irrespective of acts of the testator. If mutual wills are made, and the survivor of one of the parties to the agreement subsequently remarries, what effect does that have on the mutual will? In Re Green114 it was suggested that the trust arises on the death of the first to die and therefore the rights of the beneficiaries under the will are not lost. The subsequent marriage does not affect the trust. This principle has recently been confirmed in Re Goodchild.115

Joint wills

2.31 A joint will occurs when two or more persons incorporate their testamentary wishes in the one document. This should be avoided if at all possible, but there have been a number of cases in which this has occurred. The legal position is simply that provided the will has been properly executed by each party to it, the one document will operate as a separate will of each testator. On the death of the first testator to die, the joint will is admissible to probate and is again admissible on [page 40] the deaths of the other participants. Thus apart from the fact that only one document is involved, it is regarded as the separate will of each of the parties who have made it. Each testator is thus free, for example, to revoke without the consent of the other, but if the joint will is also a mutual will, as explained above, the court can enforce the contract in equity despite the revocation.116

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

The gift of the car is said to be adeemed and generally the daughter will receive nothing under the will. Ademption is further discussed in Chapter 9. Vynior’s Case (1609) 8 Co Rep 81b; 77 ER 597. As Forrest J pointed out in Edwards v Edwards (2009) 25 VR 40 at [30]. (1866) LR 1 PD 241 at 243. Robertson v Smith (1870) LR 2 PD 43 at 45; In re Berger (decd) [1990] Ch 118. King’s Proctor v Daines (1830) 3 Hagg Ecc 218. Provided, of course, that both vehicles were still owned by the testator at the date of death. The general principle is also subject to a contrary intention in the will. But see Re Estate of Smith [2004] NTSC 15 where the whole will was held void for uncertainty. See the discussion at (2004) 78 ALJ 450. A codicil may be defined as a supplementary or subsidiary document to the main will, in that it varies that will in a particular way but otherwise confirms the will. [1908] 2 AC 224 at 233. Milnes v Foden (1890) 15 PD 105; Re Shepperd (1893) 5 QLJ 116 at 117; Re Cowin [1968] QWN 3. In the Goods of Mundy (1860) 2 Sw & Tr 119. In the Goods of Marsden (1860) 1 Sw & Tr 542; 164 ER 851.

14. 15. 16. 17.

18. 19. 20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

42. 43. 44.

Bartholomew v Henley (1818) 3 Phillim 317; 161 ER 1337. Estate of Murray [1963] CLY 3621. (1936) 55 CLR 440 at 454. Williams v Federal Commissioner of Taxation (1950) 81 CLR 359 at 379. Note also that under the Life Insurance Act 1995 (Cth) s 205(1), money payable under the policy is generally not available to meet the deceased’s debts. [1990] 2 WLR 412. [1990] 2 WLR 412 at 1418 per Lord Oliver. [1971] 1 WLR 248. [1981] 1 NSWLR 15. [1981] 1 NSWLR 15 at 32. As in Re MacInnes [1935] 1 DLR 401. And see also Re Shirley (1965) 49 DLR (2nd) 474. For commentary see Atherton, ‘Nominations and Testamentary Dispositions’ (1991) 65 ALJ 49; Koldilinye, ‘Pension Scheme Nominations and the Wills Acts’ [1980] Conv 485. For a discussion of joint tenancy see Mackie, Histed and Page, Australian Land Law in Context, Oxford University Press, 2012, at [9.2.1]. For detailed discussion of some of the difficulties see Hardingham, Neave and Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Co, Sydney, 1989, pp 7–13. (1936) 55 CLR 440. (1936) 55 CLR 440 at 450–1. (1936) 55 CLR 440. Russell v Scott (1936) 55 CLR 440 at 448. (1708) Prec CL 269. See particularly Dufficy v Mollica [1968] 3 NSWR 751; Public Trustee v Bussell (1993) 30 NSWLR 111. Re Craven’s Estate [1937] Ch 423. Smallacombe v Elders Trustee Co Ltd [1963] WAR 3. [2015] EWCA Civ 581 [2013] EWHC 1449 (Ch). Ibid at [25]. [2015] EWCA Civ 581 at [55]–[56]. Wilkes v Allington [1931] 2 Ch 104. Per Farwell J in Re Craven’s Estate [1937] Ch 423 at 426. Cartledge v Heales (1898) 24 VLR 576; Dufficy v Mollica [1968] 3 NSWR 751. The basic principle in relation to inter vivos gifts is that to be effective, the donor must do everything that is required to be done to complete the gift, either under the common law or statute, commonly referred to as the rule in Milroy v Lord (1862) 4 De G F & J 264; 45 ER 1185. The key exception to this basic principle is the so-called rule in Strong v Bird (1874) LR 18 Eq 315, for a discussion of which see Meagher, Gummow and Lehane, Equity — Doctrines and Remedies, 3rd ed, LexisNexis Butterworths, Sydney, 2002, at [19.010]–[19.025]. (1940) 40 SR (NSW) 414. See also Watts v Public Trustee (1949) 50 SR (NSW) 130. Hawkins v Blewit (1798) 2 Esp 662; 170 ER 489; Birch v Treasury Solicitor [1951] Ch 298.

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79.

Cain v Moon [1896] 2 QB 283 (before); Re Weston [1902] 1 Ch 680 at 684 (after). Dufficy v Mollica [1968] 3 NSWR 751. [1902] 1 Ch 680. [1995] 3 All ER 980. [1951] Ch 298. [1995] 3 All ER 98. Birch v Treasury Solicitor [1951] Ch 298. Birch v Treasury Solicitor [1951] Ch 298. Public Trustee v Young (1940) 40 SR (NSW) 233; Harneiss v Public Trustee (1940) 40 SR (NSW) 414. Delgoffe v Fader [1939] Ch 922. Re Beaumont [1902] 1 Ch 889. (2009) 2 ASTLR 317. His Honour referred particularly to an article by Mitchell, ‘Donationes Mortis Causa of Bank Credits’ (1943) 17 ALJ 167. [2014] NSWSC 570. [1951] Ch 298. [2014] NSWSC 570 at [51]–[52]. Ibid at [54]. (1993) 30 NSWLR 111. For example, Ward v Turner (1752) 2 Ves Sen 431; 28 ER 275; Re Weston [1902] 1 Ch 680. Watts v Public Trustee (1949) 50 SR (NSW) 130; Bayliss v Public Trustee (1988) 12 NSWLR 540. [1991] 2 WLR 1308. Noted [1991] 50 CLJ 404. [2015] EWCA Civ 581. (1993) 30 NSWLR 111 at 118. [2014] NSWSC 570. Lee at [2.180]. Note particularly the decision of the High Court of Australia in Corin v Patton (1990) 169 CLR 540 in respect to attempted inter vivos gifts of Torrens system land. The same may be said in the United Kingdom where, since the Land Registration Act 2002, land certificates are no longer registered. See Dal Pont, Equity and Trusts in Australia, 5th ed, Law Book Co, 2011, Ch 10. For recent decisions, see Saliba v Tarmo [2009] NSWSC 581; Thorner v Major [2009] 3 All ER 945; [2009] UKHL 18. See Dal Pont, Equity and Trusts in Australia, 5th ed, Law Book Co, 2011, Ch 38. [1972] AC 572. See also Hardingham, Neave and Ford, Ch 12; Lee, ‘Contracts to Make Wills’ (1971) 87 LQR 358; (1972) 88 LQR 320. Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312; Graham v Wickham (1863) 1 De GJ & Sm 474; 46 ER 188. [1972] AC 572 at 586. This is usually called an ‘anticipatory breach’ of contract. See Khoury and Yamouri, Understanding Contract Law, 8th ed, LexisNexis Butterworths, 2010, at [11.48]. Synge v Synge [1894] 1 QB 466. Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 248–9 per Hardie JA.

80. 81. 82. 83. 84. 85.

86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104.

105. 106. 107.

Schaefer v Schuhmann [1972] AC 572 at 586. Jervis v Wolferstan (1874) LR 18 Eq 18 at 24. If, therefore, the testator is insolvent, such a promisee will have no claim on the estate. (1975) 133 CLR 150; 7 ALR 671. (1975) 133 CLR 150; 7 ALR 671 at 676. (1975) 133 CLR 150; 7 ALR 671 at 677. See particularly Barber, ‘The Opening of a Joint Bank Account’ (1984) 8 U Tas LR 74 on this point. (1975) 133 CLR 150; 7 ALR 671 at 676. Compare Russell v Scott (1936) 55 CLR 440. It is suggested that the arrangement in that case would have been sufficiently testamentary in nature for the purpose of this area of the law, if not for the purpose of execution of wills. (1975) 133 CLR 150 at 159. There was also an argument as equitable fraud, which was decisively rejected: see Barwick CJ (1975) 133 CLR 150 at 160–1. See, for example, Gregor v Kemp (1722) 3 Swan 423; 63 ER 926; Turner v Jennings (1708) 2 Vern 612; 23 ER 1000; Bennett v Bennett [1934] WN (E) 177. (1722) 3 Swan 423; 63 ER 926. Barber, ‘The Opening of a Joint Bank Account’ (1984) 8 U Tas LR 74 at 80. Synge v Synge [1894] 1 QB 466. Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312; Staib v Powell [1979] Qd R 151. [1939] Ch 820. But see Re Goodchild [1996] 1 All ER 670. [1972] AC 572. Lee, ‘Contracts to Make Wills’ (1971) 87 LQR 358; (1972) 88 LQR 320. [1941] AC 294. (1935) 29 Tas LR 149. (2003) 196 ALR 65. For detailed analysis see Croucher, ‘Contracts to Leave Property by Will and Family Provision after Barns v Barns — Orthodoxy or Aberration?’ (2005) 27 Syd LR 263. Gleeson CJ, Gummow, Kirby and Hayne JJ; Callinan J dissented. (2003) 196 ALR 65 at [127]–[129]. (2003) 196 ALR 65 at [33]. See particularly Birtles and Neal, Hutley’s Australian Will Precedents, 9th ed, LexisNexis, 2016, at [33.9] on this point. See generally Bradbrook, MacCallum and Moore, Australian Real Property Law, 6th ed, Law Book Co, 2016, at [8.65]. Horton v Jones (1935) 53 CLR 475. Schaefer v Schuhmann [1972] AC 572 at 585; Staib v Powell [1979] Qd R 151. Moreover, a contract to make a will that does not concern specific property, but simply relates to whatever assets the deceased has at death is not a contract of the sale of land, even though the assets may include land: Birmingham v Renfrew (1937) 57 CLR 666. Ogilvie v Ryan [1976] 2 NSWLR 504. (1937) 57 CLR 666. (1937) 57 CLR 666 at 683. For more detailed discussion see Mackie, ‘Recent Developments in the Law in Relation to Mutual Wills’ (1997) 5 APLJ 95; Croucher, ‘Mutual Wills: Contemporary Reflections on an Old Doctrine’ (2005) 29 MULR 390; Cassidy, ‘Exploring the Benefits and Pitfalls of Using Mutual Wills’ (2005) Deakin LR 121; Cassidy, Mutual Wills, Federation Press, 2000.

108. [1994] Ch 31. 109. Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 approved in Osbourne v Osbourne [2001] VSCA 228. 110. Stone v Hospkins [1905] P 194. Cf Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 although the latter case was decided on the alternative ground of estoppel. 111. This principle has consistently been emphasised by all the authorities, but see particularly Re Oldham [1925] Ch 75; Birmingham v Renfrew (1937) 57 CLR 666 at 674; Nowell v Palmer (1993) 32 NSWLR 574; Re Newey [1994] 2 NZLR 590; Re Goodchild [1997] 3 All ER 63; Baird v Smee [2000] NSWCA 265; Osbourne v Osbourne [2001] VSCA 228. 112. [2015] VSC 221. 113. Ibid at [178]–[192]. 114. [1951] Ch 148. 115. [1996] 1 All ER 670. Affirmed on appeal: [1997] 3 All ER 63. 116. As in Re Will of Fernando Masci [2014] QSC 281 (where the making of the mutual wills was held to sever the joint tenancy between the parties).

[page 41]

Making a Will — the Mental Elements

3

Introduction 3.1 Apart from the fact that in order to be valid a will has to be executed according to specific formal requirements, a matter considered below in Chapter 5, it must also be shown that the testator had the necessary mental capacity to make a will. That capacity may be affected by statutory provisions that prevent minors from making wills or may be affected by the testator not being of sound mind. Further, even if a testator has capacity in this sense, the testator must intend the document to operate as a will; he or she must have animus testandi or testamentary intention. The testator must also know and approve of the contents of the will. If there are suspicious circumstances surrounding the execution of the will, those suspicions must be removed before probate can be granted and knowledge and approval must be freely given. It must not be affected by either undue influence or fraud. Finally, a testator may make a mistake in the recording of testamentary wishes and in some circumstances a court may be able to rectify the error. All of these matters are considered separately in this chapter.

Age 3.2

In all Australian jurisdictions the minimum age for making a valid will

is 18 years.1 In New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory a married person may make a valid will even if that person is below the age of 18 years.2 In those jurisdictions the legislation also provides that a will made in contemplation of a marriage by a person below the age of 18 years will be valid upon the solemnisation of that marriage.3 In some [page 42] jurisdictions there are provisions for a person below the age of 18 years to make a particular will if the terms of the will have been disclosed to the court and leave to make the will is granted by the court.4 The latter provisions may be useful, for example, where a minor has acquired assets such as through inheritance or a large damages award, but the rules of intestacy would make an inappropriate distribution of the minor’s estate. It may well be that the minor only has a short lifespan, is being cared for by only one parent or foster parents, may have entered into a de facto relationship and/or has children. It should be noted that the court’s power here is not to make an appropriate will for the minor, but rather to authorise the making of the will. The statutory provisions generally require the court to be satisfied about certain matters before approval can be given, most notably that the minor understands the nature and effect of the proposed will, that it accurately reflects the intention of the minor and that it is reasonable in all the circumstances to allow the will to be made. The New South Wales provision was considered by Young J in Application of M5 where application was made by a 17-year-old who had never known his father and only had intermittent contact with his mother. He had in fact been cared for mainly by his grandparents and benefitted considerably under the will of his grandmother on her death. Under the intestacy rules that property would have benefitted the applicant’s parents should he die as a minor. While

acknowledging that the court should not lightly make an order, his Honour held that there were strong grounds for making an order in these circumstances. Leave was accordingly granted for the making of a will which left a legacy to the applicant’s mother and the residue to his cousins with whom he had been raised. As his Honour commented: The minor has substantial property and if the property passes under intestacy there will be an undeserved windfall to the minor’s biological parents to the detriment of what is his real family.6

Mental capacity: sound mind, memory and understanding Introduction 3.3 It is essential for the validity of a will that the testator had sufficient mental capacity to make a will. This poses some difficult problems for the law. On the one hand, it may well be thought that if a will is completely irrational on its face, then that irrationality would indicate that its maker [page 43] did not have the mental competence to make it. While this is one factor to be taken into account,7 the law reports are full of dicta to the effect that a testator has freedom to make any testamentary arrangement he or she desires: ‘By the laws of this country, every testator, in disposing of his property, is at liberty to adopt his own nonsense.’8 Eccentricity, foolishness, spite and capriciousness do not necessarily indicate mental incapacity — the principle of freedom of testation ensures that wills may be made, and admitted to probate, that are, on an objective standard, completely immoral and indefensible. Another quotation from an English judge is apposite here: No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident, and is moreover at liberty to conceal the circumstances and the motives by which he had been actuated in his

dispositions.9

Before examining the actual legal test for capacity, it should also be noted, by way of introductory comment, that while the law takes note of modern medical knowledge and understanding of mental disturbance and insanity,10 the legal test concentrates only on one aspect of the psychology of the human mind and that is cognition or knowingness. Other psychological experiences such as affect and conation are to a psychiatrist just as, if not more, important than cognition but in this area at least are not the concern of the courts.11 A similar reluctance to address issues other than cognition is present in the criminal law. As Wiley and Stallnorthy state: Even with the insane, the law has until recently concerned itself only with what the accused knew, or because of some disease of the mind did not know. The law has not concerned itself with the ways in which the accused felt, nor has it taken heed of the possibility that things within his mind of which he was unaware and which he could not therefore control might have determined his actions.12

In a relevantly recent decision in New South Wales, for example, the testator, in a severely depressed state, committed suicide very shortly after making his will.13 The will was upheld, the judge holding that the depression did not affect the deceased’s capacity to reason, but rather affected his motivation for action. It is true, however, that in that case the medical evidence was to the effect that while the will could have been [page 44] the product of the deceased’s ‘severe mood state’ it could also have been a genuine prioritising of his estate.14 As a further introductory comment, it should also be noted that the legal test, discussed immediately below, is truly a legal one, and not a medical one. In other words, there is no legal requirement that the testator must suffer from a recognised mental or psychiatric illness.15 It follows that a person who is subject to a guardianship or administration order or detained in a mental

institution under mental health legislation may make a valid will, there being no conclusive presumption that such a person lacks testamentary capacity.16 Conversely, of course, a person not subject to any such order may clearly lack testamentary capacity.

Test of mental capacity 3.4 The test is that the testator must have ‘sound mind, memory and understanding’. The judgment of Cockburn J in Banks v Goodfellow17 illustrates this phrase in the following manner (at 565): It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

A similar exposition is given by Hood J in the Victorian case In the Will of Wilson.18 Although decided in the nineteenth century, the test has consistently been referred to by all modern courts in considering the issue of mental capacity. Indeed one commentator has described the Banks test as: … amongst the most enduring principles of the common law, never being bettered in judicial pronouncement, comprehensive yet succinct, it has precluded any need for statutory formulation. In common with all such paradigms of judicial jurisprudence it is trenchant, apposite and lyrical so that once read it is readily assimilated and remembered, resulting in ubiquitous citation in all cases and commentaries on the law of testamentary capacity.19

[page 45] Despite these sentiments there have been some recent attempts by Australian courts of reformulation although the essential elements remain.20 The test is directed at the testator’s actual capacity to remember, reflect and reason, so it is not necessary to actually prove that he or she did so, and nor is it necessary to show that the testator possessed such capacity to the highest

degree. A number of other points may be made about this formulation. First, it is not necessary to show that the testator was capable of understanding each and every clause of the will; it is sufficient to prove that the testator understood that he or she was making a will with the requisite knowledge and approval: see 3.11 below. In other words, an understanding of engagement in a testamentary act is required. Second, in regard to the extent of the property that is disposed of, it is again not necessary to show that the testator recollected each and every item of property he or she possessed. A general knowledge of that property is sufficient.21 In the decision of Kerr v Badran,22 for example, Windeyer J (at [49]) commented that in dealing with the Banks test, it was necessary to take into consideration the differences between life in 1870 and in modern Australia and continued: The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was for 75. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railways companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investment to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing ‘the extent’ of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class [page 46] of assets particularly when shares in private companies are part of the estate. What is required is

the bringing of the principle to bear on existing circumstances in modern life.

Third, in regard to the expression ‘shall be able to comprehend and appreciate the claims to which he ought to give effect’, it is necessary to look at the persons who are the natural objects of the testator’s bounty, that is, the persons who have a moral claim on the testator. His or her sense of reason must not be perverted through mental illness to ignore these claims. As a corollary of this the testator must have the ability to evaluate and to discriminate between the respective strengths of these claims. While this principle is easily stated, application often causes great difficulties, particularly when the countervailing principle of freedom of testation (including eccentricity, spite and capriciousness — as described above in 3.3) is taken into account. An excellent example is provided by the division of opinions among members of the New South Wales Court of Appeal in the case of Re Estate of Griffith; Easter v Griffith.23 In that case a testator in a will executed in 1966, left her estate to her only child, her son. However, between 1984 and 1989 the testator executed five more wills, in all of which the son was excluded from benefit. The testator died in 1993, aged 84. It appeared from the evidence that a very troubled relationship existed between the testator and her son, the testator being disappointed both in his religion and profession. After the death of the testator’s husband the son lived with the testator between 1969 and 1983, but was forced to leave home on four occasions due to the testator’s conduct. Finally in 1983 the son was ordered out by the testator in very heated and emotional circumstances. The son left and they never spoke again. There was psychiatric evidence before the court as to the testator’s mental capacity from both sides, although neither expert had ever met her. Gleeson CJ (with whom Handley JA agreed) upheld the decision of the trial judge, Santow J, that there was a plausible case that the testator rejected the son for no rational ground and ‘was unable to consider and give effect to claims upon her bounty, in this case, of her only child’, which had not been rebutted. She therefore lacked capacity when the 1984–89 wills were executed

and accordingly the 1966 will took effect. He stated as follows: The bitter disappointment of Ethel Griffith when her only son went into religious life, their enforced total separation for a number of years when he was in early adulthood, her extreme emotional reaction on the occasions when they were reunited, her bizarre and aggressive behaviour towards him when he returned to live with her, her extraordinary conduct, especially her nocturnal behaviour, when they were living together, the manifestations of a degree of possessiveness far beyond the normal, the incident which led to their final parting, and her rejection of her son without apparent reason, must be considered in combination. The evidence of Dr Milton added significant weight to the contention that what was here involved was mental disturbance, and a judgment [page 47] that could be characterised, not merely as being unfair, but as being the product of mental disorder.24

On the other hand, Kirby P, in dissent, stated that due to the principle of freedom of testation, courts must steadfastly resist the urge to rewrite wills of testators which they regard as unfair, unwise or harsh and on his view of the factual and medical evidence, there were a number of considerations which supported an entirely rational disposition in excluding the son. These included the fact that the son was financially well off, he had walked out of his mother’s life and from that time had no emotional or loving contact with her, and he offered no signal of forgiveness, love or reconciliation. He concluded25 that the testator was not affected by mental incapacity when the wills were executed and that she had indeed properly considered the claims of her son but had rationally concluded that he was not deserving of benefit.26 Mental capacity in this respect must be distinguished from other conditions that may affect capacity. There is no presumption, for example, that a person who is a habitual drunkard has no capacity to make a will. Certainly, evidence may be led to the effect that when the will was executed the testator was under the influence of alcohol or other drugs, but this does not mean that that person is necessarily insane. A court will simply require evidence that the testator had the necessary capacity.27 Further, extreme old age and infirmity are not, by themselves, sufficient to establish want of mental

capacity,28 but it is highly desirable that the will be witnessed by a medical practitioner who is satisfied as to the testator’s capacity: see 3.7 below. Similarly, eccentricity or extreme views, or depressive mental states do not, by themselves, necessarily indicate mental incapacity. These points are best expressed by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janasievska:29 A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to the appropriate.

As Ward J noted in King v Hudson [2009] NSWSC 1013 at [51]: Mr Willmott referred in this context to the three ‘R’s’ adumbrated by Myers J (writing extrajudicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: [page 48] He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other. His Honour also said in the same case that: It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, ‘the mental power may be reduced below the ordinary standard’ provided the deceased retains ‘sufficient intelligence to understand and appreciate the testamentary act in its different bearings’.30

More recently, Briggs J, in the English case of Re Key (dec’d); Key v Key31 re-examined the matter, in circumstances where a will was executed by a testator shortly after the death of his wife. The testator and his wife had been

married for 65 years and the testator was totally dependent on his wife for his domestic care. He had no warning of his wife’s impending death. The will was set aside on the ground that the testator lacked mental capacity. His Honour pointed out that bereavement was one of an ever-widening range of circumstances recognised by modern psychiatric medicine as giving rise to mental disorder sufficient to deprive a person of the power of rational decision-making, and quite distinct from old age and infirmity. While the affective disorder which could be caused by bereavement was more likely to affect power of decision-making than comprehension, bereavement was a factor capable of impairing mental capacity. Here, the testator was devastated, rather than merely upset by his wife’s death and was incapable of making an important decision as to the disposition of his property upon his death. His Honour concluded: This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife’s death to exercise the decision-making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the [page 49] greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.32

3.5 The fourth element of the Banks test is insane delusions. The leading Australian decision on such delusions is Bull v Fulton.33 In that case such a delusion was defined by Williams J as ‘a belief, which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual’s education and surroundings’ or ‘a fixed and incorrigible false belief which the victim could not be reasoned out of’.34 The facts of that case provide a good illustration of an insane delusion affecting a will. The testator, an elderly lady whose recreations, ‘apart from will-making, were chiefly

gardening, walking or motoring during the day and knitting and lace-work at night’35 made a number of wills over the years in which she appointed her two solicitor nephews executors and also beneficiaries. Her final will excluded the nephews entirely. The nephews had, over a course of some 20 years, looked after the affairs of the testator free of charge. It was proved in evidence that the testator had a fixed belief that the nephews had forged her signature to a number of business transactions, which belief was entirely false and completely irrational. As that delusion had a direct bearing on the provisions of the will, the will was held invalid. There are a number of other decisions to the same effect.36 It should be noted, however, that delusions are only material to the question of testamentary capacity if they are connected with the dispositions of the will. If the delusion has no effect on the testator’s property or the object of his or her bounty, then the mere fact that the testator does suffer delusions does not prevent him or her from making a valid will. This was not always the case, as it was once the law that the existence of an insane delusion at the time a will was made meant conclusively that the testator was of unsound mind. That view has now been entirely rejected37 and the relative connection between the delusion and provisions in the will must be proved. Thus in Estate of Cockell; Cole v Paisley,38 the testator, at the time he executed the last two wills, suffered from time to time delusional thinking in the form of a belief that he had a special relationship with the Kingdom of Belgium such as to entitle him to claim diplomatic immunity. His penultimate will left his entire estate to Queen Fabiola of the Belgians, which Lindsay J suggested [page 50] might reasonably be held to be invalid. However, his last will nominated the St Vincent de Paul Society as his sole beneficiary. As the learned judge commented:

No delusional thoughts of any description affected the deceased’s free exercise of his testamentary power on that occasion. On the contrary. With the defendant’s gentle encouragement, he rose above any commitment he had to Queen Fabiola, or Belgium; he freely directed his bounty elsewhere.39

It follows from the above discussion that an insane delusion may affect part only of a will. Can that part be severed, leaving the rest of the will intact? An affirmative answer was given in Estate of Bohrmann.40 In a number of codicils to his will, the testator made gifts to charities. Shortly before his death he made another codicil, in which he provided that all references to English charities were to be read as references to corresponding United States charities. He did so because he suffered an insane delusion that the London County Council was persecuting him. This clause in the codicil was severed by the judge, but the rest of the will and codicils were admitted to probate. A contrary view has been taken in Australia by Needham J in Woodhead v Perpetual Trustee Co Ltd.41 It was there held that testamentary capacity is indivisible in that only competent testators can make valid wills. Provided that the insane delusion has an effect on the actual disposition of the testator’s property the testator cannot be competent and no severance is thus possible. The whole of the will in which the disposition was made in that case was therefore held to be invalid.

Lucid intervals 3.6 Where a testator is of unsound mind, either through general insanity or by suffering from insane delusions, it may still be possible for those propounding the will to show that at the time the will was made, it was made in a lucid interval. In other words, it must be shown that at that time, the testator temporarily was sane or that the delusion had no influence. In Timbury v Coffee42 the testator was a dipsomaniac, whose drinking bouts reduced him to a state of physical exhaustion and mental disturbance. This disturbance induced suspicion and distrust of his wife and insane delusions about her fidelity. In the intervals between these bouts he, in the words of Dixon J, ‘seems to have been active and intelligent and in most respects to

have behaved in a perfectly reasonable manner’.43 He made four wills. The first and third will left all his estate to his wife, the second and fourth left only a life interest to his wife, with the remainder to his sister. The fourth will was held invalid, on the ground that he did not, at the time when it was made, have testamentary [page 51] capacity, but the third will was upheld, as he had sound mind, memory and understanding when it was executed. More recently the Victorian Court of Appeal examined the matter in Kantor v Vosahlo44 where a similar result was reached. There the testator suffered dementia but there was strong evidence from the solicitor who drew up the will who was also a long-term friend of the testator, that the will was made in a lucid interval. During that interval the testator was able to give coherent reasons for the change of beneficiaries in respect to an earlier will, her choice of new beneficiaries was rational and just, and she had precisely informed the solicitor as to the extent of the property which she possessed.

Proof of incapacity 3.7 If the mental capacity of the testator is in issue, then it is important to establish where the onus of proof lies. A very useful summary is given in the judgment of Isaacs J in Bailey v Bailey.45 A number of propositions emerge from that decision, and others: (1) In all cases, the person seeking to propound the will must prove that the will is valid, satisfying the formal requirements (see Chapter 5) and also that the testator had mental capacity. (2) A prima facie case is sufficient to first establish that, and is established by the propounders of the will satisfying the court that the will is the last will and testament of a free and capable testator. A presumption of capacity will be raised if the will is rational on its face and is duly executed. (3) The force of that presumption may be removed by evidence to the contrary by those attacking

the will, that is, by showing that the testator lacked mental capacity. If that evidence is forthcoming, the evidentiary burden shifts again to the propounder of the will to show capacity. The propounder may do this by introducing independent evidence of capacity. This issue is determined on the balance of the whole evidence and the standard is the civil one, that is, on the balance of probabilities.

There have been more recent pronunciations on the onus but all refer back to the basic principles enunciated above in Bailey. Most notable is the judgment of Powell J in Re Estate of Shorter; Shorter v Hodges,46 the decision of the New South Wales Court of Appeal in Re Estate of Griffith; Easter v Griffith47 and the decision of the Victorian Court of Appeal in Kantor v Vosahlo.48 In the latter case, there was a particular and informative discussion on the standard of proof, with some indication by the trial judge that the executors bore a ‘heavy onus’ of proof that the testator lacked capacity. The Court of Appeal emphatically rejected [page 52] this suggestion, endorsing the comments of the High Court in Boreham v Prince Henry Hospital49 to the following effect: Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if his instructions for the will preceded its execution, when the instructions were given.

The court particularly emphasised that the standard of proof was of the civil standard and no heavier than that. More recently still, the matter was restated by Meagher JA of the New South Wales Court of Appeal in Tobin v Ezekiel50 and the principle stated by his Honour followed by the Victorian Court of Appeal in Veall v Veall.51 In Tobin his Honour stated as follows: The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a ‘free and capable’ testator: Barry v Butlin at 482; 1090; Fulton v Andrew (1875) LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey (1924) 34 CLR 558 at 570; Timbury v Coffee (1941) 66 CLR 277 at 283. To establish that a document is

the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P&D 655 at 657–658; Atter v Atkinson (1869) LR 1 P&D 665 at 668; Nock v Austin (1918) 25 CLR 519 at 522, 528. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. These circumstances shift the evidential burden to the party of propounding the will to show that the testator was of “sound and disposing mind”: Warin v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675–676; Smith v Tebbitt(1867) LR 1 P&D 398 at 436; Bull v Fulton (1942) 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm (1952) 86 CLR 439 at 453.52

In Veall, Santamaria JA specifically endorsed this approach and that of the Victorian Court of Appeal in the earlier decision, already discussed, in Kantor v Vosahlo.53 Associated with the problem of proof is a question relating to the duty of a solicitor or other person who draws up a will for a testator who may or may not have mental capacity. The contemporary judicial [page 53] consideration of this duty is contained in the judgment of Briggs J in the English case of Re Key (dec’d); Key v Key.54 As explained by his Honour, there is, at least in United Kingdom law, a ‘golden rule’ applicable in these circumstances. There, the solicitor accepted instructions for the preparation of a will from an 89-year-old testator whose wife of 65 years’ standing had been dead for only a week, without taking any steps to satisfy himself as to the testator’s capacity, and not making an attendance note of his meeting with the testator, at which the instructions were given. These omissions invoked specific condemnation by the court as greatly increasing the difficulties involved in the dispute in the case.

Simply stated, the ‘golden rule’ is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he or she should arrange for a medical practitioner to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.55 The reason for this ‘rule’ is well stated by Briggs J in Re Key (dec’d); Key v Key: Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to who a proper description of the legal test for testamentary capacity had first been provided.56

In Australian law, the matter has been examined in In Estate of Tucker,57 where it was stated that full information should be obtained about the status and personal position of the intending testator, including age and mental health, and that it is undesirable to act on instructions that are not given in person, whether written or from a third person. As a final note on proof, it is often the case that psychiatric evidence is called on both sides by experts who have never seen the deceased during his or her life. In Kerr v Badran,58 Windeyer J found this evidence to be of little use in the circumstances, as being reliant on material which was limited to isolated incidents over a long period of time and also which was not established as factual. His Honour repeated those comments in Revie v Druitt59 stating that: [L]ay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general [page 54] practitioners who were treating doctors during the lifetime of the deceased usually is of far more

value than reports of expert specialist medical practitioners who have never seen the deceased.60

That decision should, however, be compared with the decision of Atkinson J of the Supreme Court of Queensland in Re Watts.61 There a testator had executed his last will in 2007 and died in 2009, aged 97. However, in 2003 he was charged with a number of counts of sexual assault of a minor dating some 30 years earlier. At a hearing before the Mental Health Court a consultant psychiatrist, who had examined the testator, was of the opinion that it was likely that he was suffering from dementia, from mild to moderate severity, which was likely to be permanent and was of the opinion that the testator was not currently fit for trial. However, some three years later, the testator saw his general practitioner who formed the view that the testator had testamentary capacity, and he then executed his last will. The court was not satisfied of testamentary capacity at the time of making the will and refused probate. Given the earlier report in the criminal matter by the consultant psychiatrist, the court preferred that report to that of the general practitioner, who had opined that the testator had regained testamentary capacity after 2003 due to a major depression having been resolved. That opinion was not supported by the expert psychiatric evidence and furthermore lay opinions that were in evidence did not assist in the determination.

Time for satisfying test of mental capacity 3.8 The normal rule, and the natural one, is that the testator must possess testamentary capacity at the time he or she executes the will. Consider, however, the following scenario. An intending testator, while fully competent, gives instructions to a solicitor to prepare a will. The solicitor prepares the will in accordance with those instructions. The intending testator’s mental condition then deteriorates badly so that when the will is actually executed, the testator is not of sound mind, memory and understanding. The rule established in Parker v Felgate62 is that the relevant time for ascertaining capacity in these circumstances is the date when the instructions for the will are given. In the above scenario, therefore, the will may be admitted to

probate. This rule should be approached with some caution, however, because it was also proved in that case that while the testator did not understand the provisions of the will, nor did she remember the actual instructions, she did understand that at some time previously she had given instructions for a will, and that she also understood that she had executed a will made in accordance with those instructions. For the rule in Parker v Felgate to be applied, it is essential that the testator have that understanding. If this be proved, then there is no necessity [page 55] to establish that the testator understood the provision of the will nor remembered the actual instructions given to the drafter.63 As has often been pointed out,64 the scope for abuse of this rule is manifest. In considering the rule, the Privy Council in Batten Singh v Amirchand65 made the following observations (at 169): Their Lordships are further of the opinion that the principle enunciated in Parker v Felgate should be applied with the greatest caution and reserve when the testator does not himself give instructions to the solicitor who draws the will, but to a lay intermediary who repeats them to the solicitor. The opportunities for error in transmission and of misunderstanding and of deception in such a situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity.

A very high standard of proof is thus required where instructions are given through third persons, or where the person drawing up the will takes a benefit thereunder. The rule has also received academic criticism,66 particularly on the ground of the potential for fraud and mistake. Judicially it was vigorously attacked by counsel before the English Court of Appeal in the recent case of In Re Perrins; Perrins v Holland,67 in which the court reaffirmed the rule and the policy behind it. The case concerned an appeal from a decision of the trial judge who had applied the rule, the appeal being based on the grounds that

Parker v Felgate was wrongly decided and should not be followed and that the trial judge’s conclusion that the deceased had knowledge and approval was illogical and wrong because testamentary capacity was a precondition for knowledge and approval. The Court of Appeal gave short shrift to these submissions, first holding that the rule in Parker v Felgate had not ‘come out of the blue’ as counsel had contended and had considerable support in prior authority. The reasons for the rule lay in the principle of freedom of testamentary disposition which the law favoured and the policy that the preference of the court, if reasonably possible, is to uphold transactions and the pragmatic recognition in that context that the testator had no further opportunity to give expression to his or her wishes. The Court of Appeal particularly endorsed the decision of the Privy Council in Perera v Perera68 as strong and persuasive authority in this regard. Second, in relation to the submission as to the knowledge and approval, the court stated69 that the need for knowledge and approval at the time of execution [page 56] does not indirectly import the need for capacity at the time of execution. Knowledge and approval was shorthand for the need to rebut suspicious circumstances. The fact to be proved is knowledge and approval in the sense of acceptance, which does not require full capacity. It would thus appear from this decision, and the long course of authority, that the rule in Parker v Felgate is entrenched as part of the common law. Certainly, there are many Australian decisions, including those of the High Court, where the case has been approved and/or applied.70

Testamentary intention

General principle 3.9 It has already been noted in Chapter 2 that a person may make a will even if the document under which the disposition is made is not apparently a will. Provided that the document is executed in accordance with Wills Act formalities and the propounder of the document intended the disposition to take effect on death, then the document may be admitted to probate as a will. We are here concerned with the obverse situation: a document appears on its face to be a will, the formal requirements are satisfied, but there is evidence to the effect that the testator had no intention of making that document his or her last will and testament. If that intention (or animus testandi) is lacking, then the document will not be admitted to probate. Thus, it was said in Lister v Smith: If the fact is plainly and conclusively made out that the paper which appears to be the record of a testamentary act was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the court should turn it into an effective instrument … There must be animus testandi.71

The principle is illustrated by a number of decisions. In Estate of Knibbs72 the deceased was employed as a barman on a ship. Because of this, he was in the category of a privileged testator who was able to make an oral will: see Chapter 5. He was unmarried and of a large family, but was particularly fond of his sister, Iris. During a casual conversation to a fellow employee he made the statement: ‘If anything ever happens to me Iris will get everything I have got.’ The court held that these words could not be admitted to probate. There was a mere exchange of family gossip, of opinions and information about family matters, which could not be regarded as a testamentary act. In order to be a testamentary act there had to be a statement of the deceased’s wishes for the disposition of his property that was not merely imparted to [page 57] his audience as a matter of information or interest, but was intended by him

to convey to that audience a request that his wishes be acted upon. It was indicated by the judge, that had the words used been: ‘I want my sister, Iris, to be certain to have everything that I possess after my death. Will you please see to it, and tell the captain. Please make sure that it is all right’ then animus testandi would have been present.73 Similarly, in Nichols v Nichols74 it appeared from the evidence that the deceased and his friend were in the habit of drawing specimens of legal documents to see who could exceed each other in brevity. The deceased, asking for a pen and ink, took a sheet of paper, wrote out a will upon it and threw it towards his friend with the words ‘That is as good a will as I shall probably ever make’. The will was not admitted to probate, being made in jest and therefore executed without the necessary animus testandi. Documents which have been intended to operate as present gifts75 and documents signed by the testator in mistake76 have also been denied probate under this principle.

Conditional intention 3.10 A will may be conditional, that is, made with the intention that it should only take effect upon the happening of some specified event. A testator might provide, for example, that the will shall only be effective if he should survive his wife, or more often, if he or she should die before a given period, such as a return from a dangerous voyage or military mission. If the condition is not fulfilled, the will is of no effect.77 Care should be taken here, however, as the courts draw a distinction between wills that are truly conditional and those where the contemplated event is merely the motive to show the reason why the will was made in the first place. In this latter situation, the will is not conditional, and can be admitted to probate.78 The intention of the testator in each case is to be ascertained from a construction of the will as a whole. In this regard, there are many judicial expressions to the effect that a court will require clear evidence that the will is truly contingent, so as not to deny

probate to a will which is otherwise valid as a final expression of the testamentary wishes of the testator.79 The most recent exposition of this principle is contained in the judgment of Gray J of the South Australian Supreme Court in Re Estate of Hassan (dec’d),80 where his Honour, after a review of the case law, stated: These authorities illustrate the reluctance of the court to deny a grant of probate with respect to a conditional document, particularly when the [page 58] document otherwise appears to embody the testamentary intentions of the testator. This will occur only when the condition is expressed in such clear and unambiguous language sufficient to nullify the testamentary dispositions if the condition is not fulfilled.81

The usual case of a conditional will is where the condition is subsequent, in that the will is expressed to take effect when it is executed, but ceases to have effect when the conditional event does not take place. However, the condition may also be precedent, as illustrated by Corbett v Newey.82 There, the testator owned two farms, one of which was leased to a nephew, the other to a niece. By a previous will, of February 1989, the testator had left each farm respectively to the nephew and the niece with the residuary estate to be divided between them. Subsequently, the testator decided to make inter vivos gifts of the farms to the nephew and niece and accordingly instructed her solicitor to prepare a new will omitting any reference to the two farms. The testator clearly intended that the gifts and the new will were to be interrelated transactions, but there was a delay in completion of the conveyancing transactions. In September 1989 she signed the new will but left it undated on the mistaken impression that it would be of no effect until dated. Legally, of course, the will takes effect on execution and does not need to be dated. The conveyancing transactions were completed on Christmas Day 1989 and the solicitor dated the September will on 26 December. The testator died in February 1991. The Court of Appeal refused to uphold the will. The court accepted the

general validity of conditional wills but held that animus testandi must be present on the signing of the will. This may be shown if the condition is expressly stated in the will. On the facts, the testator did not intend to bring into effect a document which would operate with unconditional effect. In the words of Waite LJ (at 921): A will, in other words, subjects the assets of the testator, from the moment of its execution, to a series of dispositions which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter according as the assets in the ownership of the testator during his lifetime may change in value or extent. Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory) regime will be called into play immediately — and not postponed to, or made dependent upon, some future event or condition. That is why — surprising though the distinction may at first sight be to a layman — it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.

[page 59] For a conditional will to take effect therefore, there must be at the date of execution, animus testandi. That is, when the will is signed the intention is that it should take effect as a valid testamentary instrument at that time. It would thus appear that for a conditional will to be valid, the condition must be inserted into the will itself and the will should expressly state that it is so conditional.

Knowledge and approval General 3.11 Quite apart from the question of mental capacity and intention, there is a general principle that a testator must know and approve of the contents of his or her will. The will must be the consequence of the testator’s own

intelligence and volition, it must be a product of the testator’s free will. It should be noted, however, that it is unnecessary to show that the testator understood the legal terminology employed by him or herself or a drafter of the will. Consequently, if the testator does know and approve of the contents of the will, it is immaterial if either the testator, or the drafter, is mistaken as to the legal effect of the words used: see 3.29. The legal burden of proof always lies on those propounding the will to prove that the testator knew and approved the contents of the will. A presumption is raised to assist this process. If there is proof that the testator had testamentary capacity and that the will is duly executed, then, in the absence of suspicious circumstances (see 3.14–3.18), knowledge and approval will be presumed.83 If the will is sought to be impeached, then the burden will shift to those impeaching the will. In other words, the presumption referred to above will have to be displaced. The evidential burden will then again shift to those propounding the will to give affirmative proof of knowledge and approval. The matter was again addressed by Meagher JA in Tobin v Ezekiel84 in the following manner: Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expression the mind of the testator. In Thomspon v Bella-Lewis [1997] 1 Qd R 429, McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, ‘a circumstance must, to be accounted “suspicious”, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death’. See also McKinnon v Voigt [page 60] [1998] 3 VR 543 at 562–563; Robertson v Smith [1998] 4 VR 165 at 173–174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484–485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.

Reading over the will 3.12 It used to be a rule that if the will was read over to or by the testator before execution, then that itself was conclusive evidence of knowledge and approval. In Guardhouse v Blackburn85 it was stated that, subject to fraud, the fact that the will had been duly read over to a capable testator on the occasion of its execution, or that its contents had been brought to his or her notice in any other way, should, when coupled with execution, be held as conclusive evidence that he or she approved as well as knew the contents of the will. As had often been pointed out86 such a rule is rigid and inflexible in nature. No evidence (apart from fraud) no matter how strong, could ever be accepted to show lack of knowledge and approval upon proof of reading over. Consequently, over the years the rigidity of the rule was eroded,87 and it has now been reduced to only a general proposition that the reading over must be given full weight, but it is not conclusive.88 Even if the testator is shown to have read over the will, other evidence can still be accepted that he or she did not in fact know and approve of its content. In Veall v Veall,89 there is an instructive passage in the judgment of Santamaria JA about this issue. After stating that the fact that a will is prepared by a solicitor and read to the testator is powerful evidence that it represents the testator’s intentions, he nevertheless instanced several decisions90 in which the courts have held suspicious circumstances have not been dispelled notwithstanding that a will had been read over by a solicitor before its execution. In the instance case, the facts and decision of which are discussed below in 3.16, the Victorian Court of Appeal was unanimous in holding that the suspicious circumstances surrounding the execution of the will were not removed despite the will being read over to the testator. [page 61]

Summary

3.13 A useful summary of the law relating to knowledge and approval is given in the judgments of Menhennit J in Re Fenwick91 and of Dunn J in Re Bryden.92 From those judgments it is possible to state the following principles: (1) The due execution of a will raises a presumption that the testator knew and approved of its contents. (2) The onus is on those who seek to have probate granted with words omitted (for example, through mistake or fraud) to rebut the presumption of knowledge and approval of those words which arises from due execution of the will. The degree of proof required is proof on the balance of probabilities. (3) Where it is established that the will has been read to or by a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest evidence. It is not, however, a conclusive presumption, and may be rebutted by adequate proof of mistake or of fraud. (4) Once those who seek to have words omitted have led evidence of mistake or fraud, for example, which displaces, on the balance of probabilities, the presumption, there is an evidentiary onus on those who seek to have the words retained in the will to establish that the will was read by or to the testator in order for them to have the benefit of the very strong presumption that the testator knew and approved of those words.

Suspicious circumstances General 3.14 Knowledge and approval by the testator may be presumed from the fact that a capable testator executed a will, but this presumption will not apply where there are circumstances surrounding the execution of the will that excite the suspicion of the court. If there is evidence of such circumstances, that suspicion must be removed before the will is admitted to probate. Affirmative proof of the testator’s knowledge and approach is thus required.93

Will prepared by beneficiary 3.15 The classic case of suspicious circumstances arises where the preparer of a will also takes a substantial benefit under it. The well-known [page 62]

case of Wintle v Nye94 serves to illustrate this principle. There, a testator made a will in 1937 prepared by her solicitor. The testator was unversed in business, her affairs being managed by her brother until his death in 1936. The solicitor had for many years been the family solicitor. After a number of interviews a will was finally prepared under which the solicitor was appointed sole executor. A number of gifts to charities were given, and also an annuity to the testator’s sister. The residuary estate, which was substantial, was given to the solicitor. The solicitor deposed that the testator’s reason for leaving him her residuary estate was that she did not want her sister in control of her estate other than the annuity and that the solicitor could supply further funds from the residue for her sister’s maintenance, if need be. In 1939, the testator executed a codicil to the will, which was also drawn up by the solicitor and on his advice. The gifts to charities were revoked. The solicitor’s explanation for this advice was to ensure that adequate funds were available to meet the annuities under the will. In fact there were always adequate funds for that purpose, and the only effect of the codicil was to increase the size of the residuary estate, which of course went to the solicitor. The estate on the death of the testator in 1947 was valued at £115,000. The House of Lords held on these facts that the burden of proof on the solicitor to establish that the testator knew and approved the contents of her will and codicil in so far as they benefitted him was a heavy one, indeed, and had not been discharged. In the words of Viscount Simonds: My Lords, the relevant law is not, I think, in doubt … It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined. Here was an elderly lady who might be called old, unversed in business, having no one on who to rely except the solicitor who had acted for her and her family; a will made by him under which he takes the bulk of her large estate; a will made, it is true, after a number of interviews extending over a considerable time, during which details of her property and of her proposed legacies and annuities were said to have been put before her, but in the end of a complexity which demanded for its

comprehension no common understanding; on her part a wish disclosed in January, 1937, to leave her residuary estate to charity which was, by April, superseded by a devise of it to him, and on his part an explanation of the change which was calculated as much to aggravate as to allay suspicion; the will retained by him and no copy of it given to her; no independent advice received by her and, even according to his own account, little pressure exercised by him to persuade her to get it; a codicil cutting out reversionary legacies to charities allegedly for the benefit of annuitants but, in fact, as was reasonably foreseeable, for the benefit of the residuary beneficiary. All these facts and others that I do not [page 63] pause to enumerate demanded a vigilant and jealous scrutiny by the judge in his summing-up and by the jury in consideration of their verdict.95

As that judgment points out, it is not in every case where a drafter of a will takes a benefit thereunder that the gift will be invalid. In a number of cases the suspicion has been dispelled by the beneficiary. In Re Proud,96 for example, it was stated that all the circumstances should be examined, including the quantum of the legacy and the proportion it bears to the property disposed of as a whole. There, although the entire estate had been left to the drafter, the estate was very small in value and the only other person who might have had a claim on the estate did not contest the will. Suspicious circumstances were also displaced in Nock v Austin97 where there was evidence that the will had been read over to the testator by the drafter and there was a subsequent personal reading of the will by the testator who expressly approved its contents. As was pointed out by Isaacs J in that case,98 the circumstances that a party who takes a benefit wrote or prepared the will is one that arouses suspicion and calls for the anxious and vigilant examination by the court, but the rule does not go further than requiring vigilance. It does not operate as a disqualification. More recently, in Smith v O’Neill99 an elderly testator made a will which substantially benefitted her solicitor. That solicitor did not draw up the will, and properly resisted attempts by the testator to do so. However, he referred the testator to a long-standing friend, also a solicitor, who took intentions and drew up the will. Suspicion circumstances were alleged but dispelled on the

evidence. The judge held that on that evidence that this was not: … a case in which another solicitor simply nominally acted for the deceased, in preparing a will in accordance with instructions given by him, not by the deceased herself, but by the solicitor/beneficiary.100

It would appear that the same principle will also apply if the benefit does not actually go to the drafter but rather to a close member of his or her family,101 or where instructions for the making of a will are taken through an intermediary who will take a benefit, even though the intermediary takes no actual part in the preparation of the will.102 A modern example of such indirect benefits is provided by the Victorian Court of Appeal decision in McKinnon v Voigt & Smits.103 There, the deceased had apparently executed a will some three or four days before his death. The will had been written on a single piece of notepaper by a son of the executrix and sole beneficiary under the will, allegedly [page 64] on the instructions of the deceased. It was witnessed by that son and his sister. A relative of the deceased obtained a grant of administration of the deceased’s estate shortly after his death, informed the executrix (although at that stage the relative was completely unaware of any will) and asked that the deceased’s belongings be delivered up to her. The deceased had been living temporarily with the executrix prior to his death. Some three months later, the will was produced by the executrix. The executrix died shortly thereafter and her children, the beneficiaries of her estate, obtained probate of her will and then sought letters of administration of the deceased’s will. This was granted, but overturned on appeal. The court held that the evidence called by the propounders of the will, concerning the making of it, which was the uncorroborated evidence of the two interested witnesses to the will, was insufficient to dispel the suspicions surrounding it. Quite apart from the obvious interest of the children, the court closely examined the actual

circumstances surrounding execution, looking at such factors as the deceased’s personal condition, the nature and terms of the document, the deceased’s proximate death and manner of it and the ultimately crucial failure to produce the alleged will for a period of three months, even knowing that a grant of administration had been taken out by the relative. Tadgell JA stated (at 558) ‘when a reckoning is made of the suspicions generated in this case by the circumstances in combination, the reservations about the will are, to my mind, overwhelming’. Because the suspicions had not been displaced, it was unnecessary for the court to go on to consider whether the will had been forged, an allegation also raised at first instance. A further point that was considered in this case, and others, was whether a court may consider evidence as to events occurring after the execution of the will or the death of the testator, as being relevant to the question of whether suspicious circumstances surrounded the execution of the will. As suspicious circumstances relate directly to knowledge and approval, it would appear that the circumstances are limited to those surrounding execution and not after execution or death and it was so held in Thompson v Bella-Lewis.104 In McKinnon v Voigt & Smits105 one of the circumstances relied upon by the court was the non-production of the will for a period of three months. Ormiston JA was careful to point out that that delay by itself was not sufficient to call on the propounders to explain the circumstances of the delay. If, however, the delay has been properly ascribed to a person who directly or indirectly takes a benefit, the factor of delay may be called in aid as adding to suspicious circumstances already engendered and thus require more emphatically that the element of suspicion be removed. The high standard required of a solicitor in these circumstances should also be noted. At least in the United Kingdom it has been held, [page 65]

in Re a Solicitor,106 that a solicitor who takes a material benefit under a will must always not only advise the client testator to obtain independent advice before making the will, but must in fact ensure that the advice is taken. If the testator fails to seek such independent advice, the solicitor must forego the benefit left, or be subject to disciplinary proceedings.107 It remains to consider two recent decisions which gave extensive consideration to the doctrine. The first is the decision of the New South Wales Court of Appeal in Tobin v Ezekiel.108 In that case the testator’s will left her home, her only significant asset, to her two sons (who were also named as executors) to the exclusion of her two daughters. At first instance, the daughters brought proceedings for an order to have the probated will revoked. The primary judge rejected the daughter’s argument that the facts established the existence of suspicious circumstances which displaced the presumption of knowledge and approval. While the Court of Appeal decided that the trial judge had erred in concluding that the circumstances relied upon were sufficient to displace the presumption of knowledge, a close examination of those circumstances, particularly the son’s probable involvement in procuring the will. On an extensive review of the available evidence it was affirmatively satisfied that the testator knew the contents of the will and appreciated the effect of what she was doing. The second decision is that of the Victorian Court of Appeal in Veall v Veall.109 In that case, the final will of the testator departed significantly from several previous wills executed by the testator. In those earlier wills, he had appointed his eldest two children as executors, made specific legacies (including his prized shotguns) to his grandsons and divided his residuary estate between his three children. In his last will, he appointed his eldest son Rowland and Rowland’s wife as his executors, changed specific legacies (including his prized shotguns to Rowland instead of his grandsons) and divided his residuary estate equally between his eldest children to the exclusion of his youngest daughter. The will also made specific reference to a parcel of shares that had been his largest asset, but those shares had always

been held in trust and had been sold several years before. The primary judge held that the testator had testamentary capacity at the time of execution, but there was no knowledge and approval. Accordingly, the will was not admitted to probate. On the appeal, it was held the primary judge was incorrect in finding that the testator had testamentary capacity. However, the court went further and agreed with the primary judge that the testator did not know and approve of the contents of the will. After agreeing with the principles enunciated in [page 66] Tobin v Ezekiel,110 there were many circumstances giving rise to suspicions that, even if he did have capacity, there was no knowledge and approval. Santamaria JA listed several examples of suspicious circumstances in the testator’s case including: (1) When he made his last will, he was aged and infirm, declining both physically and mentally, very hard of hearing and was signing anything that was put in front of him. (2) The December will departed radically from his previous wills, and in particular the change relating to the prized shotguns. (3) The December will conferred particular benefits upon his son Rowland to the exclusion of his daughter Kim. (4) The December will included assets that had already been disposed of and reflected different assets to those stated in a family law affidavit of his financial position sworn only days earlier.111

In addition, as Rizzi and Sonenberg point out:112 Rowland felt a strong sense of grievance because Kim and Beryl (Kim’s mother and Keith’s second wife) received a disproportionate share of Keith’s considerable assets several years earlier. Although Rowland was kept away from its actual execution, the court found that the December will was itself created ‘Within a matrix of sustained activity that was designed to increase Rowland’s participation in Keith’s estate’. Part of that activity was the assistance Rowland provided Keith with his family law proceedings against Beryl. At the time, the family law lawyer requested another practitioner to assist with Keith’s will-making, but failed to provide the will lawyer with a medical report relating to Keith’s infirmity. The will lawyer did not open a file, nor keep notes of his attendances with Keith. In addition, Santamaria JA found that there were several aspects of the will lawyer’s evidence that were unreliable.

Other suspicious circumstances 3.16 While the court’s suspicion will usually be aroused where a beneficiary under the will is also the drafter of it, this is not the only circumstance where the doctrine will apply.113 If the testator is, for example, enfeebled, illiterate or blind the court may not grant probate unless there is affirmative proof of knowledge and approval. In other words, the circumstances must be such that the court is satisfied that the testator had true knowledge of the contents of the will. One way of showing this is to establish that the testator had the will read to him or her, or the will was in fact read by him or her, but the actual reading over must be such that it establishes that the testator both hears and understands what is read.114 [page 67]

Severance 3.17 It is possible that the suspicious circumstances may only affect part of the will and, unless those circumstances are dispelled, then any benefit thereunder will quite clearly be omitted. But this does not mean that the whole will may be invalid. The court can omit the affected part, leaving the rest valid and admissible to probate.115

‘Suspicious circumstances’ differ from undue influence and fraud 3.18 The law relating to undue influence and fraud on the making of wills is discussed below: see 3.19–3.27. Suspicious circumstances must not be confused with undue influence or fraud, as the approach to each issue is different. In the words of Isaacs J in Nock v Austin,116 ‘the doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied upon without distinctly charging it’. If a person opposes a will on the ground of undue influence or fraud, then the burden of

proof is upon that person to establish it. If, however, there are suspicious circumstances surrounding the execution of a will, the court will require the suspicion to be dispelled in the sense that the testator knew and approved the contents of the will. This does not necessarily require a person opposing the will to make specific allegations on the part of a potential beneficiary. The onus of proof is always on those propounding the will, or taking a benefit thereunder, to establish knowledge and approval from the outset.

Undue influence The test 3.19 Undue influence simply means coercion. It must be shown that the testator is actually coerced into making a will or, indeed, part of a will, which he or she does not want to make. It has often been pointed out, however, that coercion may take many forms and that coercion must be distinguished from persuasion. Only actual coercion will invalidate a will. The classic exposition of the legal test is given by Sir James Hannen in his direction to the jury in Wingrove v Wingrove:117 … We are all familiar with use of the word ‘influence’; we say that one person has an unbounded influence over another, and we speak of evil influences and good influences, but it is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young [page 68] man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favour, to the exclusion of his relatives. To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The

coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.118

Thus, even though influence may be bad, it is not undue unless this essential element of coercion is established. As his Honour pointed out, advice and persuasion do not amount to undue influence if the testator is free to accept or reject them.119 In Hall v Hall,120 Sir James Wilde again stated that some pressure is acceptable, and will not amount to undue influence, instancing persuasion, appeals to affection or ties of kindred, sentiment of gratitude for past services or pity for future destitution: ‘These are all legitimate, and may be fairly pressed on the testator.’121 Further, as again established in his Honour’s direction, and indeed, earlier by the House of Lords in Boyse v Rossborough,122 it is not necessary to establish that actual violence has been used or even threatened.123 A weak or enfeebled testator may be coerced by constant importunity and so fatigued as to give away to the constant pressure for the sake of peace of mind. This, as indicated, is equally coercion. Thus, as stated by Vickery J in Nicholson v Knaggs,124 ‘the degree and nature of pressure which has the effect of invalidating the will making process will vary according to the vulnerability and susceptibility of an individual testator’. These general principles have consistently been applied in modern Australian case law. They have been endorsed by the New South Wales [page 69] Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker,125 where Ipp JA, speaking for the court, distinguished between the doctrines of fraud and undue influence in probate cases (as to which see 3.26) and agreed with the statement of the elements of undue influence as set

out in Wingrove v Wingrove126 and Hall v Hall.127 More recently, they were subjected to examination by Chief Justice Doyle of the South Australian Supreme Court in Thomas v Nash,128 who observed129 that, in drawing the distinction between persuasion and undue influence, the court must bear in mind that it is not its function to require a testator to make a will of which the court approves, and stated that the underlying notion of undue influence is that of compulsion, which can be achieved by threats, by persuasion and by psychological pressure, as well as by force. However, his Honour again reiterated the general principle that the court must distinguish between legitimate influence, persuasion and pressure on the one hand and coercion on the other, which deprives the testator of free agency. There are two other matters. First, it is axiomatic, as in the case of fraud, that the undue influence must be exercised in relation to the will itself, and not in respect to other matters or transactions.130 Second, as addressed in the consideration of the doctrine of suspicious circumstances (see 3.14), the doctrine that suspicious circumstances must be cleared away does not create a screen behind which undue influence may be relied upon without distinctly charging it. Undue influence is a separate issue and must be specifically pleaded.

No presumption of undue influence 3.20 Undue influence must be proved. The equitable definition of undue influence does not apply to probate. In equity, in inter vivos transactions, there may be express (or actual) undue influence or presumed undue influence. The first is concerned with the case when it is proven that the complainant placed trust and confidence in relation to his or her affairs, influence was actually exercised and that influence was undue and its exercise brought about the transaction in question. The second is concerned with a presumption of undue influence in the case where a relationship of confidence between the parties is established in respect to a transaction. This presumption is a rebuttable one, but the onus is on the party who benefits

from the transaction to show that the transaction was not the result of undue influence, but rather of the other party’s [page 70] free will. This is a heavy burden.131 As Tyson132 points out, the party impugning the transaction does ‘not need to prove any wrongful act or threat, any coercion or even that the ascendant party did in fact dominate the other as a puppet in respect of a particular transaction’. Proof of the special relationship, without rebuttal, is enough to have the transaction set aside.133 Those relationships which will activate the presumption involve those of confidence, such as existing between solicitor and client, doctor and patient, parent and child, religious adviser and devotee, and guardian and ward. While express undue influence inter vivos is not dissimilar to that in the probate jurisdiction, there is no doubt at all that presumed undue influence has no role to play in probate. There is considerable English authority to this effect,134 all of which was cited with approval by Powell J in Winter v Crichton; Estate of Galieh135 and by Doyle CJ in Thomas v Nash.136 Various reasons have been propounded for the rejection of presumed undue influence in these circumstances,137 but the most compelling is that many of the relationships that give rise to the presumption inter vivos, are in fact relationships in which it would be natural for a testator to benefit the other party, for example in the case of a testator who has left his estate to his daughter. In Re Teddy; Hockey v Honeychurch, for example, it was said that, ‘[W]e can take nothing with us when we die, and the mere fact that we leave our possessions to someone in whom we have trust and confidence calls for no explanation’.138 Further, in an inter vivos transaction, independent advice for both parties may be obtained, and the circumstances surrounding the gift may be explained by both parties. The problem with wills is that a beneficiary may

well not know that he or she will take a gift until after the death of the testator. Again, it would be unfair to raise a presumption of undue influence in those circumstances, as neither the beneficiary, nor indeed the testator, would be able to explain the actual circumstances of the benefit.

Onus of proof 3.21 The authorities are unanimous in insisting that the onus of proof in undue influence cases rests upon the person who alleges it.139 [page 71] In McKinnon v Voigt & Smits,140 Ormiston JA of the Victorian Court of Appeal expressed the matter as follows: The justification for placing the burden of proof upon the contestant, upon the issue of undue influence, is that this defence, like the defence of fraud in the inducement, … concedes capacity and formal execution, and offers new matter to prevent these conceded facts from having their normal legal effect. This is true even though the issue takes the form of a general denial that the instrument in question is the last will and testament of the testator.

Thus, the fact that there are circumstances which arouse the court’s suspicion does not affect the issue of undue influence. The onus remains on the party alleging undue influence.141

Standard of proof 3.22 This matter has been subject to recent extensive judicial examination by Vickery J of the Supreme Court of Victoria in Nicholson v Knaggs.142 One principle repeated in all of the decisions, and generally first expressed by the Lord Chancellor in Boyse v Rossborough,143 is that: … in order to set aside a will of a person of sound mind it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of it having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.

In other words, as explained by Powell J in Winter v Crichton; Ex parte Galieh,144 where the evidence is purely circumstantial, the duty of the defendant goes further than merely establishing the circumstances from which it is sought to have the influence drawn. It is not sufficient to establish that the person has the power unduly to oversee the will of the testator. It must be shown that the power was exercised and the result of that exercise was the will. Where the circumstances of exercise are circumstantial, it is not enough to show that those circumstances are consistent with a hypothesis of the exercise of undue influence. It must be shown that they are inconsistent with a contrary hypothesis.145 Of course, where direct evidence is relied upon, then the matter is different and the sole question is whether the will of the testator was overborne to the requisite degree by conduct which is proven in that direct evidence.146 [page 72] The Boyse principle has come under sustained judicial attack by Vickery J of the Supreme Court of Victoria in Nicholson v Knaggs147 as: … imposing a significant constriction on the capacity of the principle to provide an effective remedy in cases where testamentary undue influence may arise. It not only goes beyond the accepted civil standard of proof applied in Australia in cases sought to be made out of circumstantial evidence, but the formulation equates to the criminal standard, and arguably goes beyond that standard.148

His Honour stated that there was no justification for applying the criminal standard to a civil case of action and reviewed the general authorities for that proposition, including those cases involving circumstantial evidence such as Luxton v Vines149 and Chamberlain v R (No 2).150 His Honour stated that he was bound to follow the High Court decision in Chamberlain in preference to the decisions of the House of Lords and the Privy Council, and proposed a reformulation in the following terms: The test to be applied may be simply stated: in cases where testamentary undue influence is

alleged and where the court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.151

With respect his Honour is compelling, although not considered by higher authority as yet, and would go some way to alleviate the well accepted difficulty of establishing a successful case of undue influence, as to which see 3.24 below.

Consequence of undue influence 3.23 If it can be proved that the whole will made by a testator was induced by undue influence, then the will is invalid and cannot be admitted to probate. If only part of the will is affected, then that part only may be excluded.152 The usual case of undue influence is where coercion is used by an ultimate beneficiary under a will to secure that benefit in his or her favour. However, there may be circumstances where a beneficiary under an existing will uses undue influence to prevent the testator from altering [page 73] the will, or indeed, from making a new will. A potential beneficiary is thereby deprived of benefit. There is limited authority here, but what there is suggests that a court will impose a trust on the original beneficiary in favour of the potential beneficiary.153

Difficulty of proof in undue influence cases 3.24 Hallen, writing in 1992, noted that there had been no instance of an allegation of undue influence succeeding in a probate suit for at least 50 years.154 The reason for this is undoubtedly the high standard of proof in that it must be shown that the power to overbear the will of the testator was

actually exercised, particularly in circumstantial cases. Of course, direct evidence is generally unavailable as the testator will be deceased when the issue arises. As a result, there has been substantial academic criticism of the existing law as not being sufficiently protective of the vulnerable and elderly in society. Kerridge, Ridge, Burns and Mason155 have questioned the orthodox model. All four commentators point out that apart from the onerous burden of proof, an unsuccessful application will result in a costs order against the applicant, and that there is a distinct reluctance of probate courts to find that undue influence has been exercised. Suggestions for reform include independent execution of wills (that is, in the presence of solicitors who have no interest), a presumption of undue influence in cases of beneficiaries assisting testators, and costs to be met by the estate.156 Ridge argues that it may be possible to incorporate equitable undue influence into probate law, along the same line as inter vivos transactions.157 Burns points out some of the potential problems with this, and proposes a strict legislative regime in respect to the execution of wills by very old testators and a modified doctrine of testamentary undue influence which would take into account the susceptibility of elders to undue influence.158 Burns, in particular, points to the decision of the New Zealand Court of Appeal in Carey v Norton,159 as perhaps establishing a less onerous approach to undue influence. There, the testator, less than a month before her death at the age of 81, executed a will which divided her estate into eight equal shares with one share going to the children of her six brothers and sister, one share to her [page 74] half-sister and one to her niece. This will departed from an earlier will made five years previously, in which her estate was effectively divided between her

half-sister and the niece. The evidence showed that the testator had looked to two of her brothers for advice throughout her life, particularly in relation to her finances, investments, banking and tax. It was also concluded that the testator had a special affection for her half-sister. The Court of Appeal upheld the decision of the trial judge that the will was a product of undue influence exercised by the brothers and was not to be admitted to probate. It was held that where influence arose out of an actual relationship of confidence, influence was ‘undue’ even if not accompanied by malign intent. ‘Undue’ related to impairment of judgment rather than to improper conduct on the part of the person possessing influence. While the brothers had acted with rectitude, they had effectively advised the testator as to how to make the will in ‘fairness’ to the family as a whole. The influence was thus benign and arose from the testator’s passivity and deference to her brothers’ indications, coupled with their lack of insight into the effect of what they proposed and from their failure to discuss options other than the division proposed. The court also took into account the testator’s age and state of health, the absence of any independent advice and the inconsistency with the testator’s earlier fixed intentions as to her estate. Admittedly, the circumstances were unusual in that case. However, it is usually presumed that the key concept of influence ‘moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the true, independent and voluntary will of the testator’.160 While one can have no quarrel with that, it may be that the use of the terminology ‘benign’ in these circumstances is misleading, given the decision in Carey v Norton.161 However, as Vickery J again pointed out in an informative passage (and so endorsing the principle in Carey v Norton, even if not explicitly): It is the effect rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently. Further, the influence need not be

intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator. Mens rea has no place as an element calling for proof, although more often than not an intention to bring about a desired result which is contrary to the true will of a testator will be present in cases where conduct amounting to undue influence is found.162

Further, those writers also draw attention to the decision of the Supreme Court of Canada in Vout v Hay,163 which took an expansive [page 75] view that the suspicious circumstances doctrine could also encompass ‘circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud’.164 If that is correct, then the onus of proof (as explained in 3.21) is cast upon the propounder to dispel the suspicions. This is a very different matter to that requiring that those alleging undue influence satisfy the standard of proof, critically discussed above in 3.22. The costs issue may also be removed. In the recent decision of White J in Carney v Hall,165 there is an acknowledgment of the position taken in Vout v Hay166 in that his Honour stated that evidence tending to show the exercise of undue influence may be used to establish a suspicion that a testator did not know or approve of the document in question or a will. However, such a suspicion does no more than require those propounding the will to prove knowledge and approval. There was no plea of undue influence in that case. The judge held that those propounding the will were not required to negate the possibility of undue influence as: The onus is on objecting party who raises an issue of undue influence in order to resist a grant of probate to prove that the testator was subject to undue influence when he or she made the will in question.167

In the discussion of the decision in Vout v Hay,168 his Honour concluded: Thus, Vout v Hay supports the view that while a suspicion of undue influence may displace the presumption of knowledge and approval, and may therefore require the proponents to prove testamentary capacity and the testator’s knowledge and approval of the contents of the document, it does not affect the onus with respect to undue influence. It is for an objector

raising the possibility of undue influence to prove its existence.169

This, of course, is a much narrower construction of the decision in that case. The judge expressly disagreed, however, with the view expressed by Brereton J in the New South Wales decision in Tobin v Ezekiel,170 who held that suspicion of undue influence is not a form of suspicion which displaces the presumption in favour of a testator’s knowledge and approval. The matter obviously awaits further judicial development. As a final comment, the adoption of his Honour Vickery J’s judgment in Nicholson v Knaggs171 on the standard of proof in undue influence cases (as discussed in 3.22) could also have a positive and invigorating effect on the traditional (and circumscribed) doctrine of testamentary undue influence. [page 76]

Fraud The problem 3.25 It is not difficult to imagine a situation in which a testator is induced to make a will through fraud though there are relatively few reported cases in which fraud has been successfully pleaded. Take two situations. Lawson is the owner of a large pastoral property. He is befriended by Patterson, who convinces him, through fraudulent assertions, that he is his only remaining relation. In fact, Lawson has other relatives, though he is unaware of them. Lawson, in his will, leaves all his property to Patterson. Can the will be challenged on the ground of fraud? Alternatively, Mrs Johnson is an elderly lady, with one remaining relative, her daughter Sally. She engages a housekeeper to look after her in her old age. Sally lives in Hong Kong and calls on her mother each time she visits Australia. The housekeeper falsely suggests to Mrs Johnson that Sally is engaged in drug smuggling, her visits to Australia being for this purpose and not to see her mother. Mrs Johnson

makes a will in which she leaves all her property to the housekeeper. Again, may Sally challenge the will on the basis of fraud? These situations illustrate the classic area in which fraud may operate, although there are others: see 3.27 below. In the first case, the testator may be deceived as to the actual nature of the relationship that exists between himself and the beneficiary; in the second, the beneficiary may have created a false impression about the natural objects of the testator’s bounty (that is, Sally) which has led to her exclusion from the testator’s will.

The principle 3.26 Unlike undue influence, which coerces a testator into making a will he or she did not wish to make, fraud actually misleads a testator. The general principle is that if fraud can be proved, the onus of proof being on those who allege it, then probate of the will may not be granted. If only a part of a will is induced by fraud, it is possible to exclude that part from probate, leaving the rest of the will intact.172 While the principle is easy to state it may sometimes be difficult to apply in practice. It must clearly be established that the fraudulent assertions had a direct effect on the making of the will in question. This is particularly so in the case where fraud relating to status or relationship is alleged, that is, in the first situation above in 3.25. It may well be argued by Patterson, for example, that although he made the fraudulent assertion that he was Lawson’s only living relative, Lawson would have left the property to him in any event. It could well have been that Lawson had a genuine affection for Patterson and would have left him the property anyway. Thus in Re Kelly,173 the testator left a will in which [page 77] he gave legacies to his two grandchildren. The testator’s son had married a

widow, who by her former husband had two children. These children were introduced to the testator as children of the marriage between the son and the widow. It was held that the will was valid and effectual, there being no evidence that the legacies to the children were induced by the consequence of fraud. It was necessary to show that the testator benefitted the ‘grandchildren’ as a direct consequence of a fraudulent assertion. Here, the ‘grandchildren’ benefitted not because of fraud, but rather because of personal affection and the proximity to the testator. Compare that case with Wilkinson v Joughin,174 where one Adelaide Ward represented herself to the testator as being a widow when in fact her first husband was alive. The testator, believing her to be a widow, went through the form of marriage with her. At the time she had a daughter, Sarah Ward, by her proper husband. A legacy ‘to my wife Adelaide’ was held void on the ground of Adelaide’s own fraud but a legacy to ‘my stepdaughter Sarah Ward’ was held good. In Sarah’s case, the testator knew the infant and intended to benefit her personally. The misdescription that she was the testator’s stepdaughter was immaterial.

Other cases of fraud 3.27 While the classic cases of fraud involve either false representations as to relationships or false assertions about the natural objects of the testator’s bounty, fraud is not limited to these categories. It may be alleged, for example, that a will has been fabricated by another,175 or there are other circumstances surrounding the will that indicate fraud. The decision of the Victorian Court of Appeal in Robertson v Smith176 provides an excellent example. In that case, the testator died by poisoning. The propounder of the will and his wife were the sole beneficiaries of the estate, whose principal asset was a life insurance policy. The will was made shortly after the policy was taken out and shortly before the testator’s death. The propounder’s wife was convicted of the murder of the testator. There was evidence that the propounder’s wife had arranged for the testator to take out the insurance policy, had paid the premiums herself with borrowed money and had sent the

testator to her own solicitors to make the will. She was found in possession of a copy of the will at the hospital where the testator lay dying. She gave no evidence at the trial and the solicitors failed to say who gave instructions for the will. The court held that the evidence sufficiently established that the testator had been circumvented by fraud and the will was invalid on that ground. The failure of the propounder’s wife to give evidence and the failure by the solicitors to say who gave instructions for the will, in all the circumstances of the case, led to the inference that the propounder’s wife, more or less contemporaneously with a procuring of the insurance policy [page 78] and the will, determined that the testator’s death should be compassed to the benefit of herself and her husband. This decision exemplifies the allegation of possible fraud instanced by Lord Cairns in Fulton v Andrew,177 where his Lordship stated that if there was a case in which persons who are strangers to the testator, and who have no claim on his bounty, have themselves prepared a will disposing a large portion of the property of the testator, for their own benefit, then a failure to bring home to the mind of the testator the effect of the testamentary act will undoubtedly amount to fraud.

Mistake and statutory rectification of wills Introduction 3.28 In relation to inter vivos transactions, such as contracts, there is an equitable doctrine, called rectification, which allows a court to correct a document if the document concerned does not truly reflect the actual intentions of the parties. Under the doctrine of rectification, words that may have been mistakenly included in the document may be omitted, or indeed,

altered, and words that have been mistakenly omitted can be added to the document. In order to obtain the remedy, it is necessary to show that the parties were in complete agreement on the terms of the transaction, but by error, wrote them down wrongly.178 Except where altered by statute (see 3.34–3.37 below) this doctrine of rectification does not apply to wills. There is nevertheless a limited jurisdiction in a court of probate to correct testators’ mistakes. The circumstances in which that jurisdiction may be exercised will be discussed first, and the statutory inroads into the common law in most jurisdictions will then be considered in 3.34–3.37. The law relating to mistake in wills at common law is confused and unwieldy, and in a number of cases the clear intentions of testators have been defeated because of simple errors.179 The importance of the statutory rectification powers discussed below is therefore undoubted, but to understand the scope of these legislative initiatives it is necessary to have some understanding of the common law position.

Mistake as to legal effect of words used 3.29 The general principle is that if a testator, either in drawing up his or her own will, or by employing someone to do so, makes a mistake as to the legal effect of the words used in the will, the testator is deemed to have knowledge and approval of the will. In other words, knowledge and [page 79] approval extends to the legal effect assigned to the words used in the will. The matter is best put by Salter J in Estate of Beech: A testator cannot give a conditional approval of the words which have been put into his intended will by himself, or by others for him. He cannot say: ‘I approve these words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them’. He must find, or employ others to find, apt words to express his meaning; and if, knowing the words intended to be used, he approves them and executes the will, then he knows and approves the contents of his will, and all the contents, even though such approval may be due to a

mistaken belief of his own, or to honestly mistaken advice from others, as to their true meaning and legal effect.180

A graphic example is given by the decision in Collins and Tuffley v Elstone.181 There, a testator left two wills, and a codicil to the first will. The second will, which disposed only of a small policy of insurance on her life, was prepared for her by one of her executors. It contained a general revocation clause revoking all her previous testamentary dispositions. When this clause was read over to her, she objected to it, but the person who prepared the will assured her, quite wrongly, that the words of revocation would not apply to her former testamentary dispositions. The court held, reluctantly, that the testator knew and approved the words of revocation and probate was granted with the words included. The earlier will and codicil could not therefore be admitted to probate.

Error of fact: power to omit words 3.30 It is crucial to analyse the nature of the mistake made, for if the mistake does not relate to the legal effect of the words used, the Probate Court has a limited jurisdiction to omit words that have been mistakenly inserted into wills. It has, however, no power to add words to a will that were intended by the testator to be inserted, but were left out by mistake: see 3.33. This jurisdiction to omit arises where the drafter of the will makes an error of fact in settling the testator’s intentions. This may arise either because of a misunderstanding regarding the nature of those intentions or because of a purely clerical error in recording them.182

Examples of courts’ jurisdiction 3.31 It should be noted in the first place that extrinsic evidence is admissible to show that the will does not represent the testator’s true intentions.183 If that evidence is available, and in the majority of cases, it will need to be, then the offending words can be omitted where it is clear that the testator did not intend to include such words and where those words alter the

testator’s true intentions. It is instructive to compare [page 80] the decision in Collins and Tuffley v Elstone,184 discussed above at 3.29, with a similar case, Re Phelan (dec’d).185 There, the testator executed a will in which he appointed his landlady and her husband the executors and beneficiaries. Shortly afterwards he executed three further wills by which he appointed the same executors and beneficiaries. Each of these later wills disposed of a single investment in a unit trust. The later wills all contained revocation clauses. Stirling J had no hesitation in admitting all the wills to probate but with the omission of the revocation clauses in the three later wills. Those clauses had been included in the will inadvertently or as a result of a misunderstanding on the part of the testator, and therefore did not give effect to the true intentions of the testator.186 A number of further cases serve to illustrate the general proposition. In Goods of Boehm187 the testator intended to give legacies to his two unmarried daughters, Georgiana and Florence. The drafter of the will, by accident, inserted Georgiana’s name in each clause and omitted any mention of Florence. It was held that the will should be admitted to probate with the omission of Georgiana’s name from the second clause, thus leaving a blank in the will where the name had been: see Chapter 8 for discussion of the role of the court regarding construction in these circumstances. In Re Morris188 the relevant clause of a codicil stated: ‘I revoke clauses 3 and 7 of my said will.’ In fact it was proved that the testator only wished to alter the provisions contained in clauses 3 and 7(iv) of her will. By a draftsman’s mistake the words ‘clauses … 7’ were inserted, instead of ‘clauses … 7(iv)’. The court granted probate of the will and codicil with the omission of the numeral 7 from the codicil; with the result that the clause in the codicil now read ‘I revoke clauses 3 and … of my said will’.

Limits on Probate Courts’ jurisdiction 3.32 While the court does have jurisdiction to omit material from wills, a major limitation on that jurisdiction is that the court will not omit words mistakenly inserted if the effect of that omission is to change the whole nature of the will itself. If the effect of omission has the result that the sense of the remaining words is altered, then omission will be refused. The reason for this is that the court would then be making a new will for the testator, a power that it clearly does not possess. Again, this principle is best illustrated by an examination of a number of authorities. In Re Horrocks189 a gift was made to certain objects that were described as ‘charitable or benevolent’. The use of the word ‘or’ meant that the gift [page 81] was void for uncertainty.190 The will had been drafted by a solicitor, and he gave evidence that the mistake was due simply to a typographical error in that he had intended at all times to insert the word ‘and’ for the word ‘or’. The mistake was one of fact. Proceedings were taken to have the will admitted to probate with the omission of the offending word ‘or’. A gift in favour of ‘charitable benevolent’ objects would have been valid, but the Court of Appeal refused to omit the word ‘or’ on the basis that to do so would be to modify the word ‘charitable’ in that charitable purposes would also have to be benevolent: … the omission of the word ‘or’ alters the effect of the word ‘charitable’ which was approved by the testatrix … It is as though a proviso were to be inserted to the effect that the discretion of the trustees was not to be exercised in favour of a charitable object unless it was also benevolent.191

In the event, the gift failed.192 In Re Hemburrow193 the testator’s instructions to the drafter of the will were to prepare a will that included a gift on trust of all of her real estate and the residue of her personal estate. The actual will read ‘I give … the whole of

my real estate’, the words ‘and the residue of my personal estate’ being omitted purely through a clerical error. The will was signed by the testator without detecting the mistake, and an application was made to admit the will to probate with the omission of the word ‘real’ from the relevant clause. The court refused the application, holding that while it had jurisdiction to omit words inserted by mistake, that jurisdiction did not extend to a case where the omission would result in the alteration of the words that remained. The suggested omission in this case would have had that effect.194 Consider also the High Court decision in Osborne v Smith.195 There, a testator left a legacy of £100 a year to the Home of Peace, Petersham, so long as her business should be carried on by her trustees. When that business was sold a sum of £200 was to be paid to the Home of Peace. There was evidence that the testator intended to give the Home of Peace a legacy, but not on an annual basis. The whole will failed in this case, an application to have the legacy in favour of the Home omitted from the will being rejected. Such omission would have meant that the Home would have failed to receive anything under the will and the residuary beneficiary, who was the appellant in the case, under the will would have received the whole estate. This result was not intended by the testator, and did not receive her knowledge and approval. In the words of Kitto J (at 162): The point is crucial in the present case. The findings in the earlier suit by which the appellant is bound make it necessary that the case should be decided on the footing that the deceased did not know and approve of [page 82] the clause which actually appears in the will in reference to the Home of Peace. But for the same reason the case must be decided on the footing that the deceased did not know and approve of a bequest to the appellant of the entire estate undiminished by a gift of £100 or £200 to the Home of Peace. Here lies the difficulty which is inherent in the proceedings and stands in the appellant’s way whatever may be thought about the question of due execution. As has been pointed out, if the existing clause in favour of the Home of Peace were to be struck out, the gift to the appellant would necessarily have an effect different both from that which it has on the face of the instrument and from that which the deceased intended it to have. It would stand as a

gift of the entire estate without qualification. While refusing recognition to one provision which the deceased did not know and approve, the court would be turning another, which she knew and approved subject to a qualification, into one which, being unqualified, she did not know and approve. That, plainly, would be to go beyond the jurisdiction of the Probate Court.

No jurisdiction to insert words 3.33 The Probate Court, for a number of reasons, has no power to add or alter words that have been omitted from a will by mistake, and this is so even if there is cogent evidence that the omission of the correct words was completely unintentional.196 The usual justification put forward for this rule is that to add words to a will would be contrary to the statutory requirement that wills must be in writing and signed for validity. To add words would be giving effect to oral testimony.197 It is instructive to illustrate the operation of this rule again by reference to a number of authorities. In Harter v Harter198 the testator gave instructions for the preparation of a will leaving his residuary estate to his sons. The actual residuary clause in the will read: ‘The trustees to stand possessed of all the residue and remainder of my real estate in trust [for the sons].’ Evidence was led to the effect that the drafter of the will had intended to write the words ‘residue and remainder of my real and personal estate’ but, through mistake, the words ‘and personal’ had been omitted. Accordingly, application was brought to have the word ‘real’ omitted from the will, which would have given effect to the intention of the testator. The application was refused, the court holding that the error was one of omission and it was therefore not open for the court to omit other words from the will as those words were known and approved by the testator. That course would amount in substance to the insertion of the missing words.199 A similar result was reached [page 83] in Re Hemburrow,200 the facts of which are discussed above: see 3.32.

Another ground of decision in that case was that the real effect of the application was to insert words inadvertently left out of the will and not to omit a word inserted by mistake. In the words of Gillard J (at 765): Clearly it was intended by the testatrix that the word ‘real’ was to be included in the will. By the ingenuity of counsel, however, it was suggested that by omitting the word ‘real’ the will would then be carrying out the obvious intention and instructions of the testatrix. The court cannot, however, omit a word that it was clearly intended by the testatrix should be inserted in the will.

To be contrasted with the decision in Harter v Harter201 and Re Hemburrow202 is the New Zealand case of Re Cogan.203 Again in that case the words ‘personal estate’ were mistakenly left out of a will leaving the real estate only. The court granted probate of the will with the word ‘real’ omitted so that the whole estate, real and personal, passed. It was held that this was what was intended by the testator, but the decision is contrary to Harter v Harter and Re Hemburrow and therefore should be treated with some caution.

Statutory rectification powers General 3.34 As noted above, the probate jurisdiction is confused, limited and difficult in application. As a result, all Australian jurisdictions now incorporate a general statutory rectification power, enabling the Supreme Court to make orders rectifying wills in certain defined circumstances. In effect there are two different models, which are considered below. In addition, the Australian Capital Territory has a statutory power to rectify in the case of unforeseen circumstances.

South Australia and Australian Capital Territory 3.35

Section 25AA of the South Australian Act204 provides as follows:

If the court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the court may order that the will be rectified as to give proper expression to those intentions.

In that state, s 25AA(2) provides that an application for rectification must

be made within six months of the date that probate or administration was granted, unless the court consents to a later application. Section 12A(1) of the Australian Capital Territory Act is in similar, but not identical language.205 It also provides that the application must be made within six months of probate or administration.206 [page 84] Given the width of the statutory language, the power equates with, and indeed may go beyond, the equitable rectification power given in respect of inter vivos transactions. Unlike the other jurisdictions, the rectification power is not confined to clerical errors or misinterpretation of instructions, and the primary object is to put in place the testator’s real intentions. Mistakes can vitiate the true intentions of a testator, quite apart from factual errors. These include cases where a testator drafts his or her own will and fails to appreciate the legal effect of the words used, or, more commonly, where the testator employs a professional drafter, communicates instructions clearly, but the drafter fails to appreciate the legal effect of the words used.207 The width of the section should encompass these types of mistake, as well as factual omissions and insertions. There has been limited judicial consideration of the power. Wesley v Wesley,208 a decision of Debelle J, was the first case in South Australia where there was a successful application. In that case, the testator’s will left his entire estate to eight named persons, being five children of the testator’s cousin and three nephews of the testator. At his death the testator had a niece and two unborn nephews (the mothers of both children being pregnant at the time of his death) who were not included as beneficiaries under the will. An application for the rectification was sought by the executor to have the niece and two posthumous nephews included as beneficiaries. His Honour was able to conclude on the evidence available that the testator intended to benefit all

of his nephews and the children of his cousin and did not intend to exclude one of them. He had thus inadvertently omitted one niece and the will was rectified accordingly so as to benefit all nieces and nephews. This rectification also allowed the posthumous nephews to be classed as beneficiaries as they were en ventre sa mere at the relevant time. While his Honour declined to embark on an extensive examination of the power, there was some useful dicta on the circumstances in which the power may be exercised. First, when an application is made to rectify a will, it will be necessary for the court to determine the meaning of the will, determine the testamentary intention of the deceased, determine whether the will accurately reflects that intention, and, if not, determine whether the will can be rectified and in what terms.209 Second, rectification is not a means by which a will is redrawn to accord with what others believe to be a just and equitable distribution. It is for the purpose only of making a will accord with the proved intention of the testator.210 Third, in an application the standard of proof is proof on the balance of probabilities, but as a will is the expression of the intention of a deceased person who is not available to give evidence, the observation of [page 85] Dixon J in Briginshaw v Briginshaw211 should be kept in mind. Fourth, one means of ascertaining the testator’s intention, if the will has been prepared by a solicitor, is to admit evidence of the testator’s instructions to that solicitor but: [E]vidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence, the evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will

have to be determined on its own facts and each will suggest the kind of caution which should be exercised.212

Fifth, generally speaking, the relevant date at which the court must determine the testator’s intentions will be the date when the will is made, for it is then that the testator has executed a will pursuant to his or her instructions. In Estate of Varley; Re Estate of Veldhuis,213 Debelle J repeated these principles and also stated that while a court can rectify a will so that it accords with the testamentary intention of the testator, it may not supply a gap in the expression of that intention or assume what that intention would have been in the case of failure of a gift. The court may rectify where there is clear evidence of the actual intention of a testator, but it cannot guess at the probable intention where the testator failed to address a particular contingency.214 The most recent judicial consideration of the South Australian provision is that of Gray J in Re Estate of Dawes (dec’d).215 In that case, a will was made without the benefit of legal advice on 1 March 2010 by the deceased when he was in hospital with rapidly declining health. The deceased married his wife on 2 March 2010 and died on 3 March 2010. The will left all his property to his wife, but, as it was not expressed to be made in contemplation of marriage, it was revoked by the marriage on 2 March 2010.216 There was sufficient evidence before the court that the marriage was in fact contemplated. An application to rectify the will to express that contemplation was successful. Gray J noted that the section, being remedial in purpose, was to be interpreted in a wide, rather than a narrow fashion, and continued: Section 25AA contains no implication that the type of ‘testamentary intentions’ of a deceased person, the subject of an application under the section, should be regarded as limited to certain categories of intentions. It appears that the jurisdiction to rectify given by the section is intended [page 86]

to apply to the case of an inaccurate reflection of a testamentary intention in a will regardless of the source or type of inaccuracy or reason for the inaccuracy. The term ‘testamentary intentions’ can be read in both broader and narrower senses. On the one hand, it is correct to say that a person’s testamentary intentions encompass the particular provisions that the person wishes to include in his or her will, for example, particular legacies or gifts that the person wishes to make, powers that the person wishes to confer, discretions given to trustees and the like. That is to say, the term ‘testamentary intentions’ clearly encompasses matters of detail and the particular provisions by which a desired end is to be achieved or regulated. However, the expression should not be regarded as being so confined. The term ‘testamentary intentions’, in my view, also properly refers to the broader ends or purposes or outcomes that the testator wishes to achieve by his or her will when described in a more general way even if the testator has not turned his or her mind to the particular means by which that end or purpose or outcome is to be achieved or where the testator would need to rely on a skilled drafter to supply the words for the will necessary to achieve that end or purpose or outcome.217

As well as the South Australian cases discussed above, there are a number of New South Wales decisions, which may also be valuable in the interpretation of the statutory provisions in South Australia and the Australian Capital Territory. The original New South Wales provision218 was identical to the current South Australian and Australian Capital Territory provisions until 2006, when it was amended to equate with the Uniform Succession Law recommendations: see 3.36 below. In Estate of Spinks,219 for example, which was cited with approval by Debelle J in Estate of Varley; Re Estate of Veldhuis,220 it was stated that while the equitable rules relating to rectification were to be taken into account when considering applications under the section, the application of the section should not be extended to cases involving consequences that were unforeseen by the testator, that is, cases where the testator never had any intention at all. Rectification was only available for mistakes, not lack of vision. An attempt to avoid the doctrine of lapse by an application under the section failed on this ground in that case. More recently in Rawack v Spicer,221 and prior to the change in the New South Wales provision, Campbell J (as he then was) stated as follows:222 Before the power of rectification can be exercised the court must be satisfied both that the will was so expressed that it fails to carry out

[page 87] the testator’s intentions and also what it was that the testator intended concerning the part of the will which is to rectified. Even if the court is satisfied that a testator would not have wanted his property to go in the way that in the events which have happened a particular clause results in the property going the court can rectify the will only if it is satisfied about what the testator actually intended to happen to his property in that particular event.

His Honour re-affirmed the principle enunciated in Estate of Spinks above that the court is unable to look at unforeseen circumstances and speculate as to what a testator might have done. What is required is an actual intention which has miscarried.223 His Honour also stated that while there is some ‘family resemblance’ between the principle on which a court grants rectification of a will and the principles on which an equity court grants rectification of a contract, the primary concern is that with the meaning of the section and no overt regard224 should be paid to the equitable principles. Similar principles were applied in successful applications in Public Trustee v Permanent Trustee Co225 and Long v Long.226 In the more recent decision of Tantau v MacFarlane, Ward JA re-emphasised that clear proof of the testator’s actual intentions is required.227

Other jurisdictions: New South Wales, Victoria, Queensland, Western Australia, Tasmania, Northern Territory 3.36 These jurisdictions have largely adopted the Uniform Succession Committee’s recommendations and thus have almost identical legislation.228 This is a more limited power than exists in South Australia and the Australian Capital Territory.229 The Victorian provision is typical. It provides as follows: The court may make an order to rectify a will to carry out the intentions of the testator, if the court is satisfied that the will does not carry out the testator’s intentions because — (a) a clerical error was made; or (b) the will does not give effect to the testator’s instructions.

Application must be made within six months from the date of the grant of probate if not extended by the court: s 31(2), (3).

[page 88] The power is generally modelled on the United Kingdom provisions contained in s 20 of the Administration of Justice Act 1982 (UK). There has been a lack of substantial Australian judicial discussion of the power, but obviously it is limited to mistakes where there is a failure to understand instructions and to mistakes in consequence of clerical error. Presumably, the general probate jurisdiction, discussed above in 3.31–3.33 remains with the addition of this power. A useful discussion of the principles that may be applied in respect of application under the provision is provided by Re Segelman,230 a case decided under the equivalent United Kingdom section. The court in that case stated that the statutory provision requires the court to examine three questions. The first is what were the testator’s intentions with regard to the disposition in respect of which rectification is sought. In order to determine those intentions the court must admit extrinsic evidence, such as instructions to the drafter, the actual evidence of that drafter, the evidence of any previous wills and presumably of any other persons as to the actual making of the will. This accords with what was stated by Debelle J in Wesley v Wesley,231 in respect of the South Australian provision, discussed above. The second question is as to whether the will is so expressed that it fails to carry out those intentions. If so, the court must then determine whether the reason for the improper expression was either a clerical error or a failure to understand instructions. A ‘clerical error’ has been construed as meaning ‘an error made in the process of recording the intended words of the testator in the drafting or transcription of his will’,232 although it is not confined to where the intended words of the testator can be identified with precision. It also extends to cases where the relevant provision in the will has either been introduced (or not been deleted, as in Re Segelman itself) in circumstances in which the drafter has not applied his or her mind to its significance or effect. It might simply be, in other words a failure to apply though. The circumstance for reflection, viz, that the will

did not give effect to the testator’s instructions, was not directly considered in the case, but it was suggested that the common law position will still remain. That is, a mistake as to the legal effect of the words used will possibly not be able to be rectified under the provisions, so that where the solicitor or drafter actually carried out the instructions, but fails to appreciate the legal effect of what he or she is doing, then no rectification is available. Pengelly v Pengelly233 also contains a useful discussion of the United Kingdom provision. There a testator left one third of the residue of his estate to trustees on discretionary trusts for ‘a class of beneficiaries as they shall decide, such a class to include … my children, my grandchildren and their spouses, and widows and widowers’. Under this wording, the trust would have failed as an executory trust since it failed to sufficiently define the class of beneficiaries and that meant that there was an impermissible [page 89] delegation of the testator’s will making power to the trustee. There was a successful claim for rectification by the addition of the word ‘only’ after the word ‘such class’, and so rectified, the provision was effective to create an immediate executory discretionary trust. As there was no evidence that the solicitors drafting the will had failed to understand, as distinct from implement, the testator’s instructions, rectification could only be ordered if the failure to carry out the instructions were in consequence of a clerical error. The court so classified the evidence on this matter being overwhelming. It was also stated that the omission of words could more readily be classified as a clerical error, as distinct from a failure to understand the instruction,234 than the insertion of words. As stated above, the Australian provisions have not yet received extensive judicial consideration. In Re Estate of Prevost (dec’d); Application of Perry235 there was unfortunately no attempt to analyse the statutory language, it being

assumed that the principle outlined in Rawack v Spicer,236 discussed above in 3.35, on the former New South Wales provision was also applicable to the Victorian provision. This was despite the difference in the statutory formulation. A similar approach was adopted in Re Hawkes.237 A more detailed consideration was given by Atkinson J in Public Trustee of Queensland v Smith,238 where her Honour stated that the section required the court to engage in a four-stage process:239 (1) Has a clerical error been made? (2) Does the will fail to give effect to the testator’s instructions? (3) If either or both of the above has occurred, has this caused the will not to carry out the testator’s intentions? (4) If so, then the court may make an order to rectify a will to carry out the testator’s intentions.

In the factual circumstances which occurred in that case, it was found as a fact that no clerical error was made nor did the will fail to give effect to the testator’s instructions. As a result, the will did carry out the intention of the testator and so rectification was refused. In her Honour’s words: As these are the only circumstances in which the court can enquire whether the will has failed to carry out the testator’s intentions, no further enquiry can be made into the testator’s intentions.240

The matter obviously awaits further substantial judicial consideration, particularly on the possible application of the United Kingdom cases, discussed above, but in the meantime the judgment of Atkinson J in the [page 90] Public Trustee of Queensland v Smith241 provides valuable guidance. That case was followed by the same court in Lawler v Herd (as Executor of Estate of Torrance (dec’d))242 where a badly drafted will was refused rectification, the judge commenting that the statutory rectification power can be exercised only by demonstrating not only that the will does not give effect to the testator’s

intentions but also demonstrating what those intentions were: If I were satisfied that the will does not give effect to the testator’s intention, but could not determine what the intention was then, as the executors rightly conceded, there could be no rectification.243

More recently in ANZ Trustees Ltd v Hamlet,244 Pagone J, in considering the Victorian provisions, in an instructive passage had this to say: It may be, therefore, that there are circumstances when the power in s 31 of the Act can be exercised where the proper construction of the Will ‘means the same as the clause as rectified,’ but it is still necessary for a court to be satisfied with the Will, as properly construed, ‘does not carry out the testator’s intentions’ for one of the two reasons specified in the section. Whether or not a court will be satisfied in those terms will depend upon the particular circumstances of the case and the particular Will in question but, in my view, it is not appropriate for a court simply to assume that the power to order rectification ‘obviates the need for an interpretation or construction of the document’. That does not mean that a party seeking rectification is always obliged to seek orders for the construction of the Will but it does mean that the statutory condition upon which the court’s power depends must be satisfied. In some cases the error will be so apparent that the condition will easily be satisfied making it unnecessary to seek orders construing the Will. In other cases it may be prudent for orders to be sought concerning the proper construction of the Will if for no other reason than to ensure that the parties to the proceeding may rely upon (or be bound by) the construction given by the court and by the formal orders and declarations of the court.

Similarly in Vescio v Bannister,245 Barrett J pointed out the importance of the instructions originally given by the testator in the overall assessment of the testator’s intentions,246 and the difficulty of applying the rectification power in the case of a home-drawn will. These principles were more recently applied by Philippides J of the Queensland Supreme Court in Palethorpe v Public Trustee of Queensland,247 which also followed and applied the decision of Atkinson J in Public Trustee of Queensland v Smith,248 discussed above. That judgment also contains a useful discussion of the meaning of the term ‘clerical error’ contained within the legislation and agreed with the United Kingdom cases, which are [page 91]

analysed above. His Honour specifically gave approval249 to the judgment of Latey J in Re Morris250 to the effect: First. Where the mind of the draftsman has really been applied to the particular clause, then, whether the error has arisen from the fact that he misunderstood the instructions of the testator, or, having understood the instruction, has used the inappropriate language in seeking to give effect to them, the testator who executes the will is — in the absence of fraud — bound by the error so made as if it were his own, even if the mistake were not directly brought to his notice; and the court will not omit from the probate the words so introduced into the will. Secondly. Where the mind of the draftsman has never really been applied to the words of the particular clause, and the words are introduced into the will per incuriam, without advertence to their significance and effect, by a mere clerical error or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice.

Finally, mention should also be made of the Tasmanian decision in Re Will of Zulj.251 The unfortunate factual circumstances of that case were that the will in question contained four clauses, the first declaring a last will, the second revoking all previous wills, the third and fourth being in the following terms: I APPOINT my brother DRAGO ZULJ of [address suppressed] Grove, Mount Druitt in New South Wales to be the sole Executor and Trustee of this my Will. I GIVE DEVISE AND BEQUEATH the whole of my estate of whatsoever nature and wheresoever situate to my brother DRAGO ZULJ ON TRUST to sell call in and convert into money the same or such part thereof as shall not consist of monies and from the net proceeds of such sale collection calling in and conversion and my ready monies ON TRUST to pay there out my just debts funeral and testamentary expenses and any probate or estate duty payable in connection with my ESTATE.

The applicant claimed that the form of the testator’s will was a result of a clerical error, and that it should be rectified by adding the following words after the words, ‘my Estate’ in the last line: ‘and after payment therefrom of those expenses, I GIVE DEVISE AND BEQUEATH the net residue of my estate to my brother, the said DRAGO ZULJ, absolutely.’ The testator had six other siblings apart from the applicant, all of whom lived in Europe. Two of them opposed the application. If the order as sought by the applicant was not made, there would be an intestacy. Tennent J stated that the applicant must satisfy the court that the testator’s will did not carry out the intention because a clerical error was made, but

there was no direct evidence at all of what the testator’s intentions were at the time of the making of the will. As her Honour concluded: The applicant has in effect failed at the first hurdle, and it matters not whether there was a clerical error. Having said that, there can be little doubt in my mind that there has been a clerical error. The will names the [page 92] applicant as sole executor. It then gives the estate to him upon trust to call in the estate and pay debts. There are no other words beyond that save for the attestation details. There is not even a full stop after the last word in the body of the document. Clearly a properly drawn will required more, and it is simply not there. The will as drawn failed to give effect to anything.252

Australian Capital Territory: unforeseen circumstances 3.37 Quite apart from the general power of rectification contained within s 12A(1),253 discussed above at 3.35, there is a unique provision in the Australian Capital Territory which deals with the situation where a testator fails to foresee a particular set of events that happen to come to pass after his or her death, and this set of events has the effect of defeating the testator’s ultimate intention. In that jurisdiction, rectification may still be ordered in these circumstances, provided that the terms of s 12A(2) have been complied with. The subsection provides as follows: (2) The Supreme Court may order that the probate copy of the last will of a testator be rectified to give effect to the testator’s probate intention if satisfied that — (a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will): (i) the circumstances or events were not known to, or anticipated by, the testator; (ii) the effects of the circumstances or events were not fully appreciated by the testator; (iii) the circumstances or events arose or happened at or after the death of the testator; and (b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probate intention of the testator if the testator had known of, anticipated or fully appreciated their effects.

No other Australian jurisdiction deals with probable intentions, as

opposed to actual intention in this manner.254 It appears to reverse the principle, expressed in all of the decisions discussed above,255 that the rectification power cannot be used in circumstances involving consequences that were unforeseen by the testator. The section under discussion appears to allow exactly that, but much will obviously depend upon the evidence brought before the court. Again, there has been no substantial judicial consideration of the power. [page 93]

Problem of ‘mirror wills’: execution of wrong wills 3.38 This problem usually occurs when a husband and wife make wills benefitting each other. They execute the wills at the same time, but due to a mistake in the proceedings the husband signs the wife’s will and the wife signs the husband’s will. On a strict view of the concept of knowledge and approval, the execution is clearly defective and neither will should be admitted to probate. It can be said that neither meant to sign the particular document at all, but rather the intention was to put their signature on another document. Animus testandi is lacking. It was so held in the English case of Re Meyer.256 The matter has been extensively examined by Gray J of the South Australian Supreme Court in Re Estate of Hennekan (dec’d),257 a classic case of ‘mirror wills’ involving a husband and wife. The case canvassed the possibility of the applicability of the rectification power, discussed immediately above, and the judicial dispensing power, discussed in Chapter 5, as possible solutions to the problem. The facts were that the deceased and his wife instructed a will’s officer of the Public Trustee to prepare ‘mirror’ wills and the wills were signed in the presence of two witnesses. The deceased signed the will prepared for his wife and she signed the will prepared for the deceased. Upon probate of the deceased’s will being sought, the Registrar referred the matter to the Supreme Court.

The matter originally came before the Supreme Court of South Australia in Estate of Blakely (dec’d),258 a case decided prior to the introduction of the statutory rectification powers. Again, there were ‘mirror’ wills wrongly signed by husband and wife. The will propounded for the husband but signed by the wife was admitted to probate as the husband’s will pursuant to the judicial dispensing power in that state.259 White J held that the absence of a signature was not fatal under that power, and there was no reasonable doubt that the deceased intended the document to constitute his will. To the contrary is the decision of Powell J of the New South Wales Supreme Court in Re Gillepsie,260 who held that the judicial dispensing power could not be used where the wrong will had been signed and preferred to rectify the wills by the statutory rectification power available in that state.261 Under that power, Powell J ordered that the document in fact signed by the deceased be rectified so that it confirmed in all respects with the document originally intended to be signed by the deceased: in other words, all the parts of the document signed by the deceased were deleted and the provisions of the other document were inserted. That principle was followed by the Queensland [page 94] Supreme Court in Re Goward262 but, due to the then restrictive nature of the judicial dispensing power in that jurisdiction at that time,263 the application was unsuccessful. Returning to the decision in Re Estate of Hennekam (dec’d),264 Gray J preferred the position as stated in Estate of Blakely,265 and therefore proceeded under the judicial dispensing power to admit the husband’s will to probate. His Honour reviewed the history of that provision in South Australia, noting that the clear parliamentary intention in passing the legislation was to alleviate injustices occasioned by a rigid application of the law in relation to the observances of the formalities. With respect, this is the

more principled and elegant solution. In his Honour’s words: Having regard to the materials outline above, it is appropriate to utilise s 12(2) in the circumstances before this Court. The legislative intention demonstrates that these circumstances are precisely the ‘mischief’ to which the section is directed. Section 12(2) is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, s 25AA is a devise to enable the court to correct a document which does not accurately reflect the testator’s intentions. It is generally concerned with rectifying the mistakes as to the meaning or the contents of the will. In my view, to delete the portions of the will of the deceased’s wife which the deceased actually signed, so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution.266

Subsequent authority has confirmed this approach. In Estate of Daly267 White J expressed similar doubt about the use of the rectification power in these circumstances, stating that the deceased never intended the document she signed to be her will – indeed she intended to sign a different document. Rectification was inappropriate in these circumstances as there was no valid will to rectify. Instead the appropriate course was to admit the document under the dispensing power. Similarly, in Re Estate of Johnson268 Lindsay J admitted the document under that power, but stated that both the dispensing power and the rectification power were sources of power to achieve the same substantive outcome of giving effect to the deceased testamentary intentions. His Honour was not adamant as White J was in Estate of Daly269 that the rectification power could be used in these circumstances. Mention must also be made of the Supreme Court of the United Kingdom decision in Marley v Rawlings.270 That case has attracted a good deal of [page 95] academic attention.271 Again, it was a case of ‘mixed-up wills’272 in that both husband and wife had signed, mistakenly, each other’s wills. At first instance and before the Court of Appeal the will was not admitted to probate, as the statutory power of rectification273 as applicable in that jurisdiction, was

dependent on the existence of a formerly valid will. The document failed on the signature requirement in that the testator had by his signature intended to give effect only to the will prepared for himself and not to his wife’s will. Ultimately, the Supreme Court overturned these decisions and held that the rectification power was indeed applicable in these situations. The decision was generally welcomed, with some criticism of the reasoning, and that reasoning should be compared with the Australian decisions discussed immediately above. As one commentator has pointed out:274 … this case, concerning a legacy of £70,000 is another example of the Court arriving at a common sense result — avoiding an intestacy — by stretching the words of legislation … . This case gives rise to question whether the English should introduce a provision equivalent to S8 of the Succession Act [the dispensing power] to allow generally for admission of informal documents to probate.

Relationships between statutory rectification powers and general principles of construction 3.39 The general principles of construction of wills are examined in Chapter 8. It may well be that application of those principles could result in rendering the application for rectification otiose, as the same result would be reached. All the authorities which have considered this question, however, are at one in stating that an application for rectification is still the correct procedure, and the ambit of the rectification powers is not limited to circumstances where a mistake in a will cannot be corrected under ordinary construction principles. As Campbell J pointed out in Rawack v Spicer: It is possible for rectification of an unclear clause in a will to be granted ex abundanti cautela, where rectification makes clear the testator’s intention, even if the clause which the testator actually executed, on its proper construction, means the same as the clause as rectified: Application of Spooner; Estate of J J Davis (Hodgson J, 28 July 1995, unreported); Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported).275

Thus in Public Trustee v Permanent Trustee Co,276 an amendment to a cross-claim so as to delete the claim on construction grounds, and to substitute a claim for rectification was acceded to, even though the judge

[page 96] indicated that the construction claim would have been successful and would have led to the same result.277 In Re Estate of Dippert,278 Young J stated that even though theoretically it was possible to include both questions in one summons, evidentiary problems would usually make it appropriate to deal with the matter separately.279 Conversely, of course, the availability of the statutory power to rectify does not need to remove the need for the proper construction of the will in certain circumstances. This was the approach taken by Hallen J in Lockery v Ferris,280 quoting with approval the view expressed by Pagone J in ANZ Trustees Ltd v Hamlet [2010] VCS 207 at [3]: … the power in provisions such as s 31 of the Act does not remove the need for the proper construction of a Will and is not an optional alternative for the proper construction of the terms of a Will. Indeed, it is a condition precedent to the exercise of the power in s 31 that the court be satisfied that the Will does not carry out the testator’s intentions and that this satisfaction be based on one of two specified reasons namely, either that a clerical error was made or that the Will does not give effect to the testator’s instructions. The existence of the second of these conditions requires the Will to be constructed and to be found upon its proper construction not to give effect to the instructions of the testator.281

Time limits and extensions of time for applications 3.40 All jurisdictions first provide that an application for rectification must be brought within certain time limits, but also provide a discretion in the court for an extension of time.282 As can be seen, there are various approaches as to the actual time limits, but those jurisdictions which have modelled their legislation on the Uniform Succession Committee’s recommendations have preferred the date of death rather than the date of probate.283 The reason for this is explained by Atkinson J in [page 97] Public Trustee of Queensland v Smith,284 where her Honour pointed out ‘that

that Committee had recommended that the date from which time begins to run should be changed from six months from the date of grant of probate to six months from the date of death’ to recognise that with the greatest occurrence of informal application, a grant of probate will often not be sought, thereby making the period within which to rectify a will uncertain.

1.

2.

3.

4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Succession Act 2006 (NSW) s 5; Wills Act 1997 (Vic) s 5; Succession Act 1981 (Qld) s 9; Wills Act 1936 (SA) s 5; Wills Act 1970 (WA) s 7; Wills Act 2008 (Tas) s 7; Wills Act 1968 (ACT) s 8; Wills Act (NT) s 7. Succession Act 2006 (NSW) s 5(2)(b); Wills Act 1997 (Vic) s 6; Succession Act 1981 (Qld) s 8(2); Wills Act 1936 (SA) s 5; Wills Act 2008 (Tas) s 7(2); Wills Act 1968 (ACT) s 8(2); Wills Act 2000 (NT) s 7. Succession Act 2006 (NSW) s 5(2)(a); Wills Act 1997 (Vic) s 6; Succession Act 1981 (Qld) s 9; Wills Act 1936 (SA) s 5(3); Wills Act 2008 (Tas) s 7(2); Wills Act 1968 (ACT) s 8(3); Wills Act (NT) s 7. Succession Act 2006 (NSW) s 16; Wills Act 1997 (Vic) s 20; Succession Act 1981 (Qld) s 19; Wills Act 1936 (SA) s 6; Wills Act 2008 (Tas) s 20; Wills Act 1968 (ACT) ss 8(4), 8A; Wills Act (NT) s 18. (2000) 50 NSWLR 401. (2000) 50 NSWLR 401 at 402–3. The case was decided under previous legislation, but which does not differ substantially from the present provision. Bailey v Bailey (1924) 34 CLR 558 at 571 per Isaac J. Vaughan v Marquis of Headfort (1840) 10 Sim 639 at 641 per Shadwell VC. Bird v Luckie (1850) 8 Hare 301 at 306–7 per Wigram VC. Timbury v Coffee (1941) 66 CLR 277 at 283–4 per Dixon J. See the discussion in Hutley, Woodman and Wood, Succession: Commentary and Materials, 5th ed, Law Book Co, Sydney, 2000, p 64. Wiley and Stallworthy, Mental Abnormality and the Law, Peryer Ltd, Christchurch, 1962, p 29. Re Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698. This decision was followed in Re Estate of TLB (2005) 94 SASR 450. Re Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698 at 704. Shaw v Crichton (unreported, CA(NSW), 23 August 1995). As was pointed out in that case, however, proof of such matters nonetheless provides extremely strong evidence of lack of capacity. Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377. Estate of Cockell; Cole v Paisley [2016] NSWSC 349 at [46]. Again, however, the fact that a person is subject to such an order will be a relevant factor in determining capacity. As will be seen (see Chapter 4), in all jurisdictions there are now legislative provisions that allow for a will to be made for persons lacking capacity.

17. 18. 19. 20.

21.

22. 23. 24. 25. 26. 27.

28. 29. 30. 31. 32. 33. 34.

35. 36.

37. 38. 39. 40. 41. 42. 43.

(1870) LR 5 QB 549. (1897) 23 VLR 197 at 199. Sherrin [2005] All ER Annual Review at 439. See, for example, Shaw v Crichton (unreported, SC(NSW), Powell J, 23 August 1995); Kerr v Badran [2004] NSWSC 735 per Windeyer J. See also Purser, ‘Assessing Testamentary Capacity in the 21st Century: Is Banks v Goodfellow Still Relevant?’ (2015) 83 UNSW Law Journal 854. In Shaw v Crichton (unreported, SC(NSW), 23 August 1995) this requirement was stated as meaning that the testator must be aware in general terms of the nature, extent and value of the estate over which he or she has a disposing power. [2004] NSWSC 735. (1995) 217 ALR 284. (1995) 217 ALR 284 at 292–3. (1995) 217 ALR 284 at 301. See also Revie v Druitt [2005] NSWSC 902 per Windeyer J; Saunders v Public Trustee [2015] WASCA 203. See Timbury v Coffee (1941) 66 CLR 277. Continual drinking of alcohol can, however, lead to hallucinations in the nature of insane delusions. It should also be noted that chronic alcohol abuse can lead to amnesiac syndrome which is a type of dementia. For application see Seeley v Back [2005] NSWSC 68. Bailey v Bailey (1924) 32 CLR 558. See particularly the comments of Kirby P in Re Estate of Griffith (1995) 217 ALR 284 at 295 on this point. [2011] NSWSC 1275 at [252]–[253]. See also Hoff v Atherton [2005] I WTLR 99. [2011] NSWSC 1275 at [246]. [2010] 1 WLR 2020; [2010] EWHC 408. At [115]. (1942) 66 CLR 295. (1942) 66 CLR 295 at 339. See also Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706: ‘not capable of rational explanation or amenable to reason and that is not explicable by reference to the subject person’s education or culture.’ (1942) 66 CLR 295 at 337. See, for example, Smee v Smee (1879) 5 PD 84 (testator deluded that he was the son of George IV); Smith v Tebbitt (1867) LR 1 P & D 398 (testator believed herself to be the Holy Ghost and left her estate to one Dr Smith, whom she believed to be God the Father). It should also be noted that there is no need to prove a general mental illness if there is a delusion: Re Estate of Griffith (1995) 217 ALR 284; Shaw v Crichton (unreported, SC(NSW), 23 August 1995); Spoehr v Health Services Charitable Gifts Board (2014) 121 SASR 174. Bull v Fulton (1942) 66 CLR 295. [2016] NSWSC 349. Ibid at [8]. [1938] 1 All ER 271. (1987) 11 NSWLR 267. That case provides a striking factual circumstance of delusional activity. (1941) 66 CLR 277. (1941) 66 CLR 277 at 281.

44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

[2004] VSCA 235. (1924) 34 CLR 558 at 570–4. (1988) 14 NSWLR 698. (1995) 217 ALR 284. [2004] VSCA 235. (1995) 29 ALJR 179 at 180 per Williams, Fullager and Kitto JJ. (2012) 83 NSWLR 757. (2015) 46 VR 123. [2012] 83 WSWLR 757 at [44]–[45]. (2015) 46 VR 123 at [168], [171] and [181]. [2010] 1 WLR 2020; [2010] EWHC 408 (Ch). Re Simpson (1977) 121 SJ 234. [2010] 1 WLR 2020 at [8]. [1962] SASR 99. [2004] NSWSC 735; noted (2004) 78 ALJ 719. [2005] NSWSC 902 at [34]. See also Re Brokenshire; Equity Trustee Co Ltd v Worts [2001] VSCA 235 and Kantor v Vosahlo [2004] VSCA 235 for consideration of expert evidence in these circumstances. (2011) 9 ASTLR 529. (1883) 8 PD 171. Re Flynn (dec’d) [1982] 1 WLR 310. See, for example, Hardingham, Neave and Ford, p 66. [1948] AC 161. For example, Maxton, ‘Testamentary Capacity — the Rule in Parker v Felgate Is an Illogical Exception?’ [1983] NZLR 98. [2010] WTLR 1415; [2010] EWCA Civ 840. [1901] AC 345. [2010] WTLR 1415 at [24]–[28]. Landers v Landers (1914) 19 CLR 222; Bailey v Bailey (1924) 34 CLR 558; Boreham v Prince Henry Hospital (1995) 29 ALJ 179; Re McCafferey [1938] SASR 403; Tasmanian Perpetual Trustees Ltd v Colbeck and Chuckowree [2007] TASSC 86. Le Bon v Lili, Will of Klara Lane [2013] VSC 431; Vukotic v Vukotic [2013] VSC 718; Re Spencer (d’ecd) [2014] 2 Qd R 435. (1868) 3 Sw & Tr 282 at 288; 164 ER 1282 at 1285. [1962] 2 All ER 829. [1962] 2 All ER 829 at 833. (1814) 2 Phill Ecc 189; 161 ER 1113. King’s Proctor v Daines (1830) 3 Hagg Ecc 218; 162 ER 1136. Re Meyer [1908] P 353. But cf Guardian Trust and Executors Co of New Zealand v Darroch [1946] NZLR 614. Re Govier [1950] P 237. For an excellent example, see Re Spratts Goods [1897] P 28. See, for example, In Goods of Dobson (1866) LR 1 P&M 88 per Lord Penzance. (2008) 100 SASR 464.

81. 82. 83. 84. 85. 86. 87. 88.

89. 90.

91. 92.

93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

108. 109. 110.

(2008) 100 SASR 464 at [68]. [1996] 2 All ER 914. Re Fenwick [1972] VR 646. [2012] NSWCA 285 at [46]. (1866) LR 1 P & D 109. See Hardingham, Neave and Ford, pp 53 ff. See particularly Re Morris [1971] P 62 at 75–9. Re Fenwick [1972] VR 646. But see Church v Mason (2013) 12 ASTLR 190 where the New South Wales Court of Appeal held that in some-circumstances the fact that the will is read aloud may assist and indeed be given significant weight in assessing knowledge and approval. (2015) 46 VR 123 at [184]–[192]. Legg v Duncan (unreported, SC(NSW), Needham J, 11 March 1987); Brand v Brand (unreported, SC(NSW), 10 December 1991, Rolfe J); Pates v Craig (unreported, SC(NSW), Santow J, 28 August 1995); Astrage v Pepper [1970]; NSWLR 542; Hawes v Burgess [2013] EWCA Civ 74. Re Fenwick [1972] VR 646 at 651–2. [1975] Qd R 210. See also Graham, ‘The Substantial Validity of Wills’ (1998) 72 ALJ 889. This article also deals with the matter of proof of suspicious circumstances, undue influence and fraud, which are considered below. Wintle v Nye [1959] 1 All ER 552. Wintle v Nye [1959] 1 All ER 552. Wintle v Nye [1959] 1 All ER 552 at 557–8. (1922) 18 Tas LR 10. See also Tanner v Public Trustee [1973] 1 NZLR 68, and more recently Dore (as Executor of the Will of Chenhall dec’d) v Billinghurst [2006] QSC 140. (1918) 25 CLR 519. (1918) 25 CLR 519 at 528. For a recent United Kingdom example of successful displacement see Fuller v Strum [2002] 2 All ER 87. See also Vukotic v Vukotic (2013) 12 ASTLR 238. [2014] NSWSC 1119. Ibid per Hallen J at [187]. Thomas v Jones [1928] P 162 (will drawn up by solicitor, benefit to solicitor’s daughter). Batten Singh v Amirchand [1948] AC 161; Re Ticehurst (1973) The Times, 6 March. [1998] 3 VR 543. [1997] 1 Qd R 429. See particularly the judgment of McPherson JA at 450–1. But see to the contrary the obiter statement of Burchett AJ in Vernon v Watson [2002] NSWSC 600 at [23]. [1998] 3 VR 543. [1975] QB 475. Note also In Will of Shannon [1977] 1 NSWLR 210 (remuneration in excess of that usually allowed). Of course, all Australian jurisdictions have rules dealing with the matter: see, for example, New South Wales Professional Conduct and Practice Rules (Solicitor’s Rules) 2013. See also the discussion in Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [164]–[165] per White J. [2012] 83 NSWLR 757. (2015) 46 VR 123. (2012) 83 NSWLR 757.

111. Ibid at [199]. And see the comment on this decision by Rizzi and Sonenbery, ‘Where There’s a Will’ [2016] Law Institute Journal 38. 112. Ibid at 40. 113. Tyrell v Painton [1894] P 151. For a more recent example, see Roos v Karpenkow (1998) 71 SASR 497 and Smith, ‘Suspicious Circumstances and Wills’ (1994) QLSJ 347. 114. Fulton v Andrew (1875) LR 7 HL 448. 115. Wintle v Nye [1959] 1 All ER 552. However, the circumstances would be rare: see Fuller v Strum [2002] 2 All ER 87. 116. (1918) 25 CLR 519 at 528. 117. (1885) 11 PD 81 at 82–3. 118. See also Hall v Hall (1868) LR 1 P & D 481 at 482: ‘A testator may be led but not driven.’ 119. (1885) 11 PD 81 at 82 and see further Williams, Mortimer and Sunnocks at [13.49]. 120. (1868) LR 1 P & D 481. 121. (1868) LR 1 P & D 481 at 482. A more recent statement of the English position may be found in Hubbard v Scott [2012] WTLR 29; [2011] EWHC 2750 (Ch) and Cowderoy v Cranfield [2011] WTLR 1699; [2011] EWHC 1616 (Ch). 122. (1875) 6 HLC 2 at 48–9. 123. As the Lord Chancellor stated in Boyse, (ibid): ‘The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created sufficient to deprive him of free agency.’ 124. [2009] VSC 64 at [149]. 125. [2007] NSWCA 136. 126. (1885) 11 PD 81. 127. (1868) LR 1 P & D 481. See also Revie v Druitt [2005] NSWCA 902 at [51] per Windeyer J. 128. (2010) 107 SASR 309. 129. (2010) 107 SASR 309 at [79]–[80]. 130. Boyse v Rossborough (1875) 6 H LC 1 at 51. However, the whole relationship may be taken into account when deciding the main issue, even without direct evidence: Craig v Lamoureux [1920] AC 349 at 365. 131. Johnson v Buttress (1936) 56 CLR 113 per Dixon J at 134. 132. M Tyson, ‘An Analysis of the Differences between the Doctrine of Undue Influence with Respect to Testamentary and Inter Vivos Dispositions’ (1997) 5 APLJ 38 at 40. 133. Ibid. The doctrine is further discussed in detail by Dal Pont, Equity and Trusts in Australia, 5th ed, Law Book Co, 2011, Ch 7. 134. Parfait v Lawless (1872) LR 2 P & D 462 at 469–70 per Lord Penzance; Boyse v Rossborough (1857) 6 HLC 1; Craig v Lamoureux [1920] AC 349 at 456 per Viscount Haldane. 135. (1991) 23 NSWLR 116 at 121. 136. (2010) 107 SASR 309 at 323. 137. See the detailed analysis by Tyson, ‘An Analysis of the Differences between the Doctrine of Undue Influence with Respect to Testamentary and Inter Vivos Dispositions’ (1997) 5 APLJ 38. 138. [1940] SASR 354 at 358 per Napier J. 139. See, for example, Low v Guthrie [1909] AC 278.

140. 141. 142. 143. 144. 145.

146. 147. 148. 149. 150. 151.

152. 153.

154. 155.

156. 157. 158. 159. 160. 161. 162. 163. 164.

[1998] 3 VR 543 at 562. Citing Page and Wills, Vol 3, p 548, [29.79]. Nicholson v Knaggs [2009] VSC 64 at [109] per Vickery J. Nicholson v Knaggs [2009] VSC 64 at [110]–[138]. [1857] 6 HLC 1 at 51. (1991) 23 NSWLR 116 at 122. See also Windeyer J in Revie v Druitt [2005] NSWSC 902 at [51]: ‘The onus is on the person alleging undue influence to prove it. It is not sufficient to establish pressure or importuning conduct bearing on the deceased. What is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such at it amounted to coercion so that it overbore the free will of the testator … .’ Nicholson v Knaggs [2009] VSC 64 at [116] per Vickery J. Nicholson v Knaggs [2009] VSC 64 at [116] per Vickery J. Nicholson v Knaggs [2009] VSC 64 at [119] per Vickery J. (1952) 85 CLR 352. (1984) 153 CLR 521. Nicholson v Knaggs [2009] VSC 64 at [127]. His Honour also conceded that if the Boyse principle was indeed so entrenched in the common law, it needed modification in any event as otherwise the concept of testamentary undue influence was rendered impotent. He suggested that any reasonable hypothesis, as opposed to any possible hypothesis, must be excluded before undue influence may vitiate a will in cases where circumstantial evidence is relied upon: Nicholson v Knaggs [2009] VSC 64 at [131]. Allen v McPherson (1847) 1 HLC 191 at 209; Fulton v Andrew (1875) LR 7 HL 448; Re Nicholson [1916] VLR 274 at 282. Betts v Doughty (1879) LR 5 PD 26; Allen v McPherson (1847) 1 HLC 191 at 214. It would appear from the latter case that if the will is admitted to probate, equity can only intervene if an appeal against admission has been successful. P Hallen, Note (1992) 66 ALJ 538 at 539. Kerridge, ‘Wills Made in Suspicious Circumstances, the Problem of the Vulnerable Testator’ (2000) 59 Cambridge Law Journal 310; Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 Law Quarterly Review 617; Burns, ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28 University of New South Wales Law Journal 145; Mason, ‘Undue Influence and Testamentary Disposition: An Equitable Jurisdiction in Probate Law?’ [2011] 75 Conv 115 and see the response to the latter article by Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] 76 Conv 129. Kerridge, op cit. Ridge, op cit. Burns, op cit. [1998] 1 NZLR 661. Nicholson v Knaggs [2009] VSC 64 at [150] per Vickery J. [1998] 1 NZLR 661. Nicholson v Knaggs [2009] VSC 64 at [150]. (1995) 125 DLR (4th) 431. (1995) 125 DLR (4th) 431 at 439.

165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199.

(2011) 111 SASR 424. (1995) 125 DLR (4th) 431. (1995) 125 DLR (4th) 431 at [18]. (1995) 125 DLR (4th) 431. (2011) 111 SASR 424 at [24]. (2011) 6 ASTLR 358; [2011] NSWSC 81. [2009] VSC 64. The position is the same as that in relation to undue influence: see 3.23; and Re Nickson [1916] VLR 274. [1929] SASR 262. (1866) LR 2 Eq 319. Such an allegation was made in Thompson v Bella-Lewis [1997] 1 Qd R 429. [1998] 4 VR 165. (1875) LR 7 HL 448 at 463. For full discussion of this doctrine see Meagher, Gummow and Lehane, Ch 26. See particularly New South Wales Law Reform Commission, Wills — Execution and Revocation, LRC 47, 1986, Ch 7. [1923] P 46, at 53–4. [1893] P 1. Hardingham, Neave and Ford, p 76. Guardhouse v Blackburn (1866) LR 1 P & D 109. [1893] P 1. [1971] 3 WLR 888. See also Re Luck [1977] WAR 148. [1891] P 247. [1971] P 62. [1939] P 198. The reason for this is that not all benevolent purposes are charitable and to be valid a trust for purposes has to be exclusively for charitable purposes. [1939] P 198 at 217–18. The legacy would not fail in Australia: see Dal Pont and Chalmers, Equity and Trusts in Australia and New Zealand, 4th ed, Law Book Co, Sydney, 2007, Ch 29. [1969] VR 764. See also Harter v Harter (1873) LR 3 P & D 11. (1960) 105 CLR 153. In The Goods of Schott [1901] P 190; Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487. But see New South Wales Law Reform Commission, Wills — Execution and Revocation, LRC 47, 1986, p 82. (1873) LR 3 P & D 11. Such an error in Queensland, Victoria and the Northern Territory would now be avoided under s 33(O) of the Succession Act 1981 (Qld), s 46 of the Wills Act 1997 (Vic) and s 41 of the Wills Act 2000 (NT) which provide that unless a contrary intention appears in the will a residuary disposition referring only to the real estate or only to the personal estate of the testator is to be

200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219.

220. 221. 222. 223. 224. 225. 226.

227. 228.

229.

construed to include all the residuary estate of the testator, both real and personal. [1969] VR 764. (1873) LR 3 P & D 11. [1969] VR 764. (1912) 31 NZLR 1204. Wills Act 1936 (SA). Wills Act 1968 (ACT). Wills Act 1968 (ACT) s 12A(3). Note the notice provisions in s 12A(4)–(6). As pointed out by the New South Wales Law Reform Commission, LRC, Report No 47, 1986, at 86. (1998) 71 SASR 1. (1998) 71 SASR 1 at 3. (1998) 71 SASR 1 at 8. (1938) 60 CLR 336 at 360–3. (1998) 71 SASR 1 at 6. [2007] SASC 420. [2007] SASC 420 at [6]. See also Re Estate of Epheser (dec’d) [2008] SASC 311. (2011) 112 SASR 117. Pursuant to s 20 of the Wills Act 1936 (SA). (2011) 112 SASR 117 at 121–2. See also Estate of Barrett (dec’d) (2013) II ASTLR 218 Formerly Wills, Probate and Administration Act 1898 (NSW) s 29A. (unreported, SC(NSW), 22 August 1990), upheld on appeal: Mortensen v State of New South Wales (unreported, CA(NSW) 9 December 1991). The matter is discussed by Powell J, ‘Recent Developments in New South Wales in the Law Relating to Wills’ (1993) 67 ALJ at 38–40. [2007] SASC 420. [2002] NSWSC 849. Followed in Estate of Miller (2002) 233 LSJS 133, but cf Australian Executor Trustees Ltd v Casanova [2005] SASC 93. At [26]. See also Re Estate of Dippert [2001] NSWSC 167 at [17]; Trimmer v Lax (unreported, SC(NSW), Hodgson J, 9 May 1997) at [12]. [2002] NSWSC 849. Citing Mortensen v State of New South Wales (unreported, CA(NSW), 9 December 1991) at [6] per Scheller JA. [2003] NSWSC 556. [2004] NSWSC 1002. See also Menna v Jacobs; Re Estate of Nolan [2004] NSWSC 1191; Donnolley v Clarke [2008] NSWSC 522; Miskelly v Arnheim [2008] NSWSC 1075; Narsi v Bhindi; Estate of Kalyanjt [2008] NSWSC 1160; Fawcett v Crompton [2010] NSWSC 219. [2010] NSWSC 224 at [56]–[58]. Succession Act 2006 (NSW) ss 27–28; Wills Act 1997 (Vic) ss 31–32; Succession Act 1981 (Qld) ss 33–33A; Wills Act 1970 (WA) ss 49–50; Wills Act 2008 (Tas) s 42; Wills Act (NT) s 27. Note that the Tasmanian legislative provision contains the criminal standard of proof of beyond reasonable doubt. But see Re Estate of Prevost (dec’d); Application of Perry [2004] VSC 737 where it is assumed (at [17]) that the provisions were also applicable in Victoria.

230. [1996] Ch 171. On the United Kingdom position generally, see Kerridge and Brierley, ‘Mistakes in Wills: Rectify and be Damned’ [2003] CLJ 750. 231. (1998) 71 SASR 1. 232. Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412 at 419. 233. [2008] 3 WLR 66. 234. Per Hodge J at [23]. 235. [2004] VSC 537. 236. [2002] NSWSC 849. 237. [2005] VSC 93. 238. [2009] 1 Qd R 26. 239. [2009] 1 Qd R 26 at [47]. 240. [2009] 1 Qd R 26 at [64]. See also McPherson v Byrne [2013] Qd R 516. 241. [2009] 1 Qd R 26. 242. [2010] QSC 281. 243. [2010] QSC 281; BC201225435 at [8] per Fryberg J. 244. [2010] VSC 207. 245. [2010] NSWSC 1274. 246. [2010] NSWSC 1274 at [15]. 247. (2011) 5 ASTLR 280; [2011] QSC 335. 248. [2009] 1 Qd R 26. 249. [2009] 1 Qd R 26 at [50]. 250. [1971] P 62 at 80. 251. (2014) 12 ASTLR 508. 252. Ibid at [19]–[20]. 253. Wills Act 1968 (ACT). 254. The scope of the section is considered by Rowland, ‘The Construction or Rectification of Wills to Take Account of Unforseen Circumstances Affecting their Operation’ (1993) 1 APLJ 87 and 193. 255. For example, Estate of Varley (dec’d); Re Estate of Veldhuis [2007] SASC 420 at [6]; Estate of Spinks (unreported, SC(NSW), 22 August 1990); Rawack v Spicer [2002] NSWSC 849 at [26]. 256. [1908] P 135. Followed in Australia by Re Petchell [1945] 46 WALR 62 but cf Guardian Trust v Unwood [1946] NZLR 614 and McCongale v Starkey [1997] 3 NZLR 635 to the contrary. 257. (2009) 104 SASR 289. 258. (1983) 32 SASR 473. 259. The then s 12(2) of the Wills Act 1936 (SA). For detailed discussion of this and similar powers in other jurisdictions, see Chapter 5. 260. Unreported, SC(NSW), 25 October 1991. 261. The then s 29A of the Wills, Probate and Administration Act 1898 (NSW). 262. [1997] 2 Qd R 54. 263. The then s 9 of the Succession Act 1981 (Qld). This was the ‘substantial compliance’ doctrine. See further, Chapter 5. 264. (2009) 104 SASR 289. 265. (1983) 32 SASR 473. 266. (2009) 104 SASR 289 at [36].

267. 268. 269. 270. 271. 272. 273.

274. 275. 276. 277. 278. 279. 280. 281. 282.

283. 284.

(2012) 8 ASTLR 48. (2014) 11 ASTLR 562. (2012) 8 ASTLR 48. [2014] UKSC 2; [2014] 2 WLR 213. See, for example, Hacker, ‘They Will Be Done’ (2014) 130 LQR 360; and Drummond, ‘Whose Will Is It Anyway?’ (2014) 78 Conv 357. A phrase used by Black LJ in the Court of Appeal decision: [2012] 4 All ER 630 at 674. Administration of Justice Act 1982 (UK) s 20(1). As discussed in 3.36 above, there is almost identical statutory language in all Australian jurisdictions except South Australia and the Australian Capital Territory. Turnbull, ‘Wills: Rectification’ (2014) 88 ALJ 718 at 720. [2002] NSWSC 849 at [25]. [2003] NSWSC 556. See also Long v Long [2004] NSWSC 1002 at [42]–[43]: Tantau v MacFarlane [2010] NSWSC 224 at [49] and [73]. [2001] NSWSC 167. [2001] NSWSC 167 at [21]. (2011) 8 ASTLR 529. See also Keulzmann v Attorney-General (NSW) (2013) 12 ASTLR 202 at [14] per White J. Succession Act 2006 (NSW) s 27(2), (3) (Application to the court within 12 months after the date of death of the testator. Extension if the court considers necessary, but not after final distribution of the estate); Wills Act 1997 (Vic) s 31(2), (3) (Application to the court within six months from the grant of probate. Extension if the court considers necessary; but not after final distribution of the estate); Succession Act 1981 (Qld) s 33(2), (3) (Application to the court within six months after the date of death of the testator. Extension if the court considers it appropriate and there is no final distribution of the estate); Wills Act 1936 (SA) s 25AA(2) (Application within six months after the grant of probate or letters of administration. Consent of the court required for extension); Wills Act 1970 (WA) s 50(2), (3) (Application within six months after death of the testator. Extension possible, but not if final distribution of the estate); Wills Act 2008 (Tas) s 42(2), (3) (Application within three months after the date of death of the testator. Extension if the court considers necessary, but not after final distribution of estate); Wills Act (NT) s 27(2), (3), (4) (Application within six months after the date of death of the testator. Extension if the court thinks ‘just’ but not after final distribution of estate); Wills Act 1968 (ACT) s 12A(3) (Application within six months of grant of probate or letter of administration with will annexed). That is, New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory. [2009] 1 Qd R 26.

[page 99]

Statutory Wills: Wills for Persons Who Lack Testamentary Capacity

4

Background 4.1 A statutory regime giving power to a court to make wills for persons who lack testamentary capacity was first introduced in Tasmania in 1995, South Australia in 1996, Victoria in 1997, the Northern Territory in 2000, Queensland, New South Wales and Western Australia in 2006, and the Australian Capital Territory in 2010.1 A similar power was introduced in the United Kingdom by an amendment to the Mental Health Act 1983 (UK),2 and the Australian legislation is broadly modelled on that concept, although with significant difference in the statutory language.3 In Australia the impetus for a statutory will regime essentially began with a New South Wales Law Reform Commission Report in 1992.4 That Report recommended that a will-making scheme should be introduced for those persons who had never had testamentary capacity (including minors) and those people who previously had mental capacity but who had lost that capacity. In 1994, the Victorian Law Reform Commission similarly recommended such a statutory scheme.5 In 1998, the Uniform [page 100]

Succession Laws Committee, in its general report on wills, recommended a statutory wills provision, taking into account the existing legislation provisions, and advising on some modifications.6 The current legislation is detailed below.

Reasons for statutory wills 4.2 These are numerous, and are covered in detail in the above Reports. Instances where the statutory power has been exercised are various, but cover the following: (1) Where the person lacking testamentary capacity has either never made a will (or if so, that will has since been revoked) and the beneficiaries under the intestacy rules of the incapacitated person are not appropriate beneficiaries and other persons should benefit.7 (2) Where the person lacking testamentary capacity has previously made a valid will but the provisions of that will, for a variety of reasons, are no longer appropriate.8 In a general sense, the desirability of the power to make statutory wills has been stated by the Law Reform Institute of Victoria in the following terms:9 To these examples may be added the general proposition that there will inevitably be occasions where a person would wish to make provision by will for a person or persons who could not benefit under the terms of an existing will, under intestacy provisions, or under existing family provision legislation. The type of person for whom a testator would wish to make provision would probably be either persons dependent upon making of such provision or deserving of such provision. If a will cannot be made for the benefit of such dependent or deserving person because of the incapacity of the person who would, if of full capacity, wish to make such provision, it is just that there should be some mechanism to make testamentary provision.

Procedure: applicants 4.3 The legislation in all jurisdictions provides that ‘any person’ may bring the application on behalf of the person who lacks testamentary capacity.10 Normally, applicants have been close family members, although there have been applications from solicitors, social workers, the [page 101]

Public Trustee and those having a protective function under the various state and territory Guardianship and Administration Boards. On the leave applications, in most jurisdictions the court must be satisfied that the applicant for leave is an appropriate person to make the application.11

Procedure: two-stage process 4.4 All jurisdictions, except Victoria and Western Australia, require an applicant to obtain leave to make an application, and, upon that leave being granted, an application for an order authorising the will.12 The purpose of the leave application is ‘a process by which to screen out baseless and unmeritorious applications and, in particular, baseless claims that a person lacks testamentary capacity’.13 An application for leave may be heard at the same time as the substantive application, and quite often is, particularly if the person who is the subject of the prospective order clearly lacks testamentary capacity and there is no likelihood that he or she will regain such capacity: Hoffmann v Walters.14 Conversely, if there is any doubt about the above, separate hearings as to the leave and actual application may be required, given that the final determination is that the person for whom the application is made must lack testamentary capacity.15 However, in that case Palmer J instanced the United Kingdom case of Re Davey16 where, in the circumstances, the application had to be made, and determined, with some urgency and before sufficient medical evidence proving incapacity could be obtained. His Honour stated that: In such a case, the screening process required by the leave application may be undertaken at once, leaving until later the gathering of further information to support the application for a final order. At the leave stage the court will be concerned to ensure … that the application for leave is not frivolous or vexatious.17

Finally, the necessity to obtain leave has been questioned by Debelle J in Hoffmann v Walters18 as otiose and unnecessary. His Honour argued that the fact that it is necessary to establish lack of testamentary capacity is a sufficient safeguard to prevent unmeritorious applications, particularly as the cost of

making applications are relatively substantial. If the [page 102] application is unmeritorious, those costs will be payable by the applicant on an indemnity basis and that would be a sufficient disincentive. The matter has more recently been examined by the Victorian Law Reform Commission.19 As pointed out by Macmillan J in Bailey v Richardson,20 in order to make the system more accessible, that Commission recommended abolishing the two-stage process of applying for leave to apply, and then applying for authorisation of a proposed will. The Commission noted that in practice, as pointed out above, the two stages were combined, and the legislation should be amended to reflect that practice. It also notes, agreeing with Debelle J in Hoffmann v Walter,21 that costs orders are sufficient deterrent to vexations or unmeritorious applications being made. The Victorian Government acted upon that recommendation, and abolished the two-stage process. The principles that were to be applied in the leave stage under the old legislation are now to be applied in the substantive application for authorisation of a proposed will.22

Statutory conditions for exercise of power General 4.5 Although there is difference in the statutory language, in each jurisdiction there are three conditions for the exercise of the power; viz: (1) that the person for which the application has been made does not have testamentary capacity; (2) the proposed will, alteration or revocation is or might be one that would have been made by the proposed testator if he or she had had testamentary capacity; and (3) it is or may be appropriate for an order to be made.23

In addition, the court is mandated to consider specific matters when

considering an application (both at the leave and application stage). Section 7(4) of the Wills Act 1936 (SA) for example provides as follows: In considering an application for an order under this section, the Court must take into account the following matters: (a) any evidence relating to the wishes of the person; (b) the likelihood of the person acquiring or regaining testamentary capacity; (c) the terms of any will previously made by the person; (d) the interest of — (i) the beneficiaries under any will previously made by the person;

[page 103] (ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate; (iii) any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die; (iv) any other person who has cared for or provided emotional support to the person; (e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will; (f)

the likely size of the estate;

(g) any other matter that the Court considers to be relevant.24

There is a consistent line of authority for this approach in more recent cases: See, for example, In the Matter of DeJager [2012] SASC 236; Re W, DJ [2015] SASC 45; In the Matter of E, CW [2015] SASC 80; In the Matter of Mamikan [2015] SASC 77; In the Matter of K, JL [2016] SASC 53.

Condition one: lack of testamentary capacity 4.6 The legal meaning of lack of testamentary capacity has already been dealt with in Chapter 3. It has no different meaning in the case of statutory wills. To recap, the test is that enunciated by Cockburn CJ in Banks v Goodfellow25 of sound mind, memory and understanding at the time of execution of a will: It is essential to the exercise of such a power that a testator shall understand the nature of the act

and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

This was followed by Hood J in the Victorian case of In the Will of Wilson,26 where it was said that in order to understand these matters it is essential that his mind should be free to act in a natural, regular and ordinary manner, particularly in respect to three matters: sufficient mental capacity to understand what he is doing (that is, that he is, by the will, disposing of his property to particular persons); sufficient capacity to realise the extent of that property he is dealing with by will and, third, sufficient mental capacity to understand and weight the claims which naturally ought to press upon him. These statements of principle were cited with approval by Dixon J in Timbury v Coffee.27 As far as proof of testamentary incapacity is concerned, the following observation of Palmer J in Re Fenwick; Application of JR Fenwick; [page 104] Re ‘Charles’28 is apposite. After pointing out that, except in cases of real urgency, the leave application itself should provide the best evidence available in the circumstances as to lack of testamentary capacity, his Honour continued: The best evidence will always be that of a specialist professional, for example, a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness rules of court. The report should state the testing which has been carried out and should give a conclusion by express reference to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. The latter requirement is unnecessary, of course, if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties. The next best evidence — which will suffice if there is insufficient time for the report of a

specialist — is that of the patient’s treating general practitioner. Again, the report should explicitly refer to the elements of testamentary capacity enumerated in Banks v Goodfellow, except in the kind of nil capacity case to which I have referred. The least satisfactory evidence is that of lay persons who would benefit under the proposed statutory will or codicil and who endeavour to prove testamentary incapacity by giving examples of the person’s erratic or demented behaviour. The court will treat that kind of evidence, uncorroborated by expert professional evidence, with the utmost suspicion.

Condition two: the proposed will, alteration or revocation is one or might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity 4.7 This condition has caused the most difficulty for the courts. It has not been helped by differing statutory language. It also does not differentiate between what has been termed the ‘nil capacity’ cases and ‘lost capacity’ cases, identified in the discussion below.29 As a consequence, separate consideration is given to each jurisdiction.

South Australia (and Victoria until 1997) 4.8

The South Australian provision relevantly provides30 that:

… before making an order under this section, the court must be satisfied that: the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity … .

[page 105] The original Victorian provision31 was in almost identical statutory language. The South Australian Supreme Court decision of Hoffmann v Walters32 contains an analysis of the possible meaning of the statutory provision. This case was a ‘nil capacity case’ in that the plaintiff applied to the court for an order authorising a statutory will to be made for her son. The son had been

struck by a car and severely injured when he was three years old, and, as a result, left intellectually disabled. He received a large sum of money in the resultant damages claim. The proposed will appointed his brother and sister as executors and trustees, provided that the trustees were to hold the residue on trust for the plaintiff if she survived the son by 28 days, and, if she did not, to the brother and sister in equal shares as tenants in common. The son’s parents had separated in 1988 and divorced in 1996. In 1989 the plaintiff had been granted custody of the three children. The father did not make maintenance payments for the son, and had intermittent contact. The plaintiff suffered a breakdown in 1994, and the son was placed in care for 10 years, with the plaintiff regularly visiting him during that time. In 2004, the plaintiff became the son’s full-time carer. In the event the court approved and authorised the making of the will (in accordance with the proposed will), the judge commenting that his father had no contact with him for 12 years. It was unlikely that he (the father) would be successful in a family provision claim and that if the will was not made, the estate would be divided upon intestacy equally between the father and the mother. As to the statutory provision, viz the likely intention of the testator, his Honour referred to United Kingdom decisions, particularly Re D (J)33 and Re C (a patient).34 In Re D (J), it was said that it was to be assumed that the incapacitated person was having a brief lucid interval, during which he or she had full knowledge of the past and a full realisation that as soon as the will was executed, he or she would relapse into the actual mental state that previously existed. The court must consider the particular person, and not a hypothetical ‘reasonable’ person, and make a will he or she is likely to have made. The court also stated that in all normal cases, a ‘broad brush’, rather than an ‘accountant’s pen’ approach should be adopted. Different considerations apply, however, if the incapacitated person has suffered from mental disability from a very early age, as occurred in Re C (a

patient). There, the person for whom it was sought to have a will made had never had testamentary capacity and had inherited some £1.6 million. Hoffman J stated that in these circumstances, ‘the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality’. In the judge’s [page 106] view, a person in the position of the patient, looking back over her life, would have been influenced by the fact that she had spent the whole of her life in the care of the community embodied in the National Health Service, the hospital and voluntary mental health charities and second that her estate had derived from her family. The moral obligations the patient would have felt were to both the community and her family and an appropriate will was drawn up accordingly. His Honour noted that unlike the United Kingdom statutory provision, the South Australian formulation does not use the expression ‘might have been expected to provide’, but ‘notwithstanding the absence of that expression, it is manifestly clear that it is an appropriate factor to consider’ (at [16]), and continued: [I]n many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the court to be able to determine what his likely intentions are.

A similar analysis was used by Gray J in Re RAK,35 who also referred to, and applied, the United Kingdom authorities (another ‘nil capacity’ case). Being a nil capacity case, his Honour concluded that the process of finding likely intention was necessarily artificial. In Re Brown,36 however, the same judge was able to find more utility in the provision in a ‘lost capacity’ case, commenting: It is here that a critical distinction should be drawn between nil capacity and lost capacity cases. This distinction lies primarily in the fact that in a lost capacity case, a proposed testator was

once able to give effect to their wishes and views. This provides a basis upon which the court can consider if the terms of the proposed will reflect the ‘likely intentions’ of the proposed testator, were they to have testamentary capacity.

It follows that the enquiry in the present proceedings is far less problematic than that embarked upon in a nil capacity case. This view is consistent with the observations of Megarry VC in Re D (J):37 Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections for the patient which are beyond reason.38

[page 107] This approach has more recently been followed in a series of decisions involving both ‘lost capacity’39 cases and ‘nil capacity’ cases.40 The ‘nil capacity’ decisions have reiterated that there the enquiry is an entirely objective one. In the most recent decision of Re K, JL41 it was held that this is not necessarily always the case. In that case, an application was made by the proposed testator’s mother for an order authorising a statutory will. The proposed testator at the time of application was 20 years of age and intellectually disabled as a result of brain damage shortly after birth. Doyle J, in granting the application, noted that while the proposed testator lacked testamentary capacity, she nevertheless had the ability to express views concerning her testamentary wishes which views were taken into account as to her likely testamentary intentions. The following extract from his Honour’s judgment is apposite: In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely

subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expressions of wishes relative to the application to make a statutory will. The present case is a “nil capacity” case. As such, the Court would ordinarily be reliant upon an entirely objective analysis. However, the present case differs from the typical nil capacity case because despite JLK being intellectual handicapped from birth, and in my view lacking in testamentary capacity, she nevertheless has sufficient intellectual and decision-making capacity to have formed, and expressed, some meaningful testamentary intentions. In my view, weight should be attached to the evidence of these expressions of her subjective intentions. Of course, the weight needs to be carefully assessed having regard to JLK’s disabilities, and limited age and maturity. However, her expressions of her subjective intentions are relevant and must be taken into account. While there is reference in the context of other nil capacity cases to the inquiry being an entirely objective one, this is merely a reflection of the fact that evidence of subjective intention is often not available, rather than it being irrelevant as a matter of principle. One could place this

[page 108] case in an additional category or subcategory of cases, perhaps labelled “partial capacity” cases. But I prefer to focus on the nature of the facts and evidence of a particular case rather than the general categorisation of the case. Put another way, while the division of cases into categories is often analytically helpful, the nature of the inquiry into “likely intentions” will ultimately depend upon the facts and evidence in the particular case rather than the general label or category under which the case falls.42

In contrast is the more cautious approach adopted by the Victorian Court of Appeal in Boulton v Sanders.43 Prior to that decision, there were a number of cases44 in which applications had been approved by the court. In Monger v Taylor,45 for example, a statutory will was authorised by Gillard J in circumstances where an elderly widow, without mental capacity, had failed to provide for her estranged sister where provision was appropriate. Gillard J

was of the view that the broad principles stated in the United Kingdom case of Re D (J)46 could usefully be applied in leave applications under the Victorian legislation. Similarly, in Hill v Hill,47 Byrne J authorised the making of a statutory will for a 93-year-old testator who had lost testamentary capacity but had previously made a will in 1996 leaving her modest estate to be divided equally between her only daughter and the cat protection society. There was strong and compelling evidence there to the effect that after the 1996 will was made, and while with mental capacity, she had decided that she had been wrong not to leave everything to her daughter, having recognised that daughter’s illness, and had expressed a desire to leave all to her. A statutory will was authorised to that effect. Similarly in State Trustees Ltd v Hayden,48 Mandie J authorised a statutory will. The circumstances were quite stark in that case. An existing will conferred substantial benefits on the defendant, who had acted quite disgracefully in the management of the testator’s affairs while acting as administrator under power conferred by the Guardianship and Administration Board. Mandie J noted: In order to meet the requirements of s 26(b) of the Wills Act, the court must be satisfied on the balance of probabilities that the proposed will or revocation accurately reflects the ‘likely’ intentions of the person. The use of the word ‘accurately’ indicates the need for the proposed will to reproduce the person’s intentions with a substantial degree of precision and exactitude. Nevertheless, it is the ‘likely’ intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitude and predispositions of the person from time to time in the past — but that is not to say, in any given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular, that it is more likely

[page 109] than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result.49

Mandie J referred to the United Kingdom decision in Re C (a patient),50

where in the case where there could be no evidence of likely intentions, the court must assume what would be intended by a normal decent person. His Honour found this formulation useful, though noted the difference in the statutory language. In contrast is the decision in Re Fletcher; Ex parte Papaleo.51 There an application for a statutory will was refused in circumstances where a valid will had effectively left the testator’s estate to her son and daughter in equal shares. Sometime after execution of the will the son had received substantial inter vivos advances from the testator which had not been repaid. In fact, the son eventually became bankrupt. After the loss of mental capacity, application was made for a statutory will which would have restored the equality between the two children taking into account the inter vivos advances. In refusing the application, Byrne J referred particularly to the requirement of ‘likely intentions’ and was not prepared to conclude that those likely intentions would have been to restore equality between the children. His Honour noted: Experience shows that people of sound mind do not alter their will even when subsequent events occur which change the effect of the existing testament. It is a serious step to make or modify a will. It is not for me to impose upon [the mother] an intention which I think she might or ought to have.52

As noted above, extensive examination of the Victorian power was given by the Victorian Court of Appeal in Boulton v Sanders.53 The case was concerned with an application for a statutory will in circumstances where an intestacy would have resulted as to the residuary estate, the testator having lost testamentary capacity. The application was dismissed by the trial judge and that decision was confirmed by the Court of Appeal. The following principles emerge from the judgment but it should be noted that the effect of these has now been modified in the light of amendments to the section in 2007 which are further discussed below. First, evidence as to intention is crucial in deciding the issue. If there is insufficient evidence before the court as to the ‘likely intentions’ of the testator, the court is not empowered to authorise a will by doing the ‘best it could’. This will be the case even if an intestacy resulted, which was probably

not intended by the testator. In other words, the court is required by the statutory language to determine whether the proposed will accurately reflected ‘likely intentions’. The absence of evidence as to such intentions, on the balance of probabilities, must result in a negative answer to the application of the proposed will. Of course, [page 110] if there is positive evidence as to ‘likely intentions’ and the proposed will reflects that, then the will will be approved if it accurately reflects those intentions. Second, it follows from the above that the requirement of ‘accurate reflection’ in the statute demands a substantial degree of precision and exactitude about the testator’s likely intentions. As a consequence, the court was precluded from authorising a will which no more probably reflected the likely intentions than any number of other possible wills (or, indeed, an assumed desire to avoid intestacy). As Dodds-Streeton AJA stated: ‘If the proposed will no more probably reflects “likely intentions” than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied.’54 Third, there is a general warning by the Court of Appeal in the case to the effect that care should be taken in application of the United Kingdom decisions and earlier Victorian decision, best summed up in the judgment of Ormiston JA: I agree with Dodds-Streeton AJA that care should be taken in applying decision under the English legislation over the years permitting the courts to make a will for a person under disability and that, to the extent that any of the decision of judges of the Trial Division have sought to apply the interpretation given by the English courts, those decisions in this jurisdiction should be treated with caution.55

In summary the South Australian provision has been adequately applied, and given some meaning, in ‘lost capacity’ cases but, as noted, is wholly

artificial and unrealistic in the ‘nil capacity’ cases. This was noted by Debelle J in Hoffman v Walters56 in a plea for reform.

Victoria 4.9 As noted above, the original legislation, identical to that in South Australia, was amended in 2007. The current provision is s 21B of the Wills Act 1997 (Vic) which provides as follows: Before making an order under section 21, the Court must be satisfied that … (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person has testamentary capacity.

As can be seen, the amended provision avoids the terminology of ‘accurately reflecting the person’s likely intentions’ so the previous requirement that the proposed will must reproduce the person’s intentions with a substantial degree of exactitude and precision is now not necessary. Further as the debate of the Bill in Parliament revealed, in a ‘nil capacity’ case it was artificial in the extreme to the task of accurately [page 111] reflecting intention. The new provision, in using the terminology ‘might reasonably be expected to be’ enabled the court to assess the presumed intention of persons who never had testamentary capacity. As a consequence of these amendments, judicial decisions on the previous provision, such as Re Fletcher; Ex parte Papaleo57 and Boulton v Sanders58 discussed above, must now be treated with extreme caution, as the standard of satisfaction as to intention which the court must reach is not now as high as it was previously. The amended provision in Victoria is yet to receive extensive judicial consideration. In Saunders v Pedemont,59 where the application was refused,

Habersberger J noted the change in the legislative requirement but agreed with the statement of Dodds-Sretton AJA, quoted above, subject to the weakening of the degree of reflection.60 However, his Honour found the best judicial guidance in the judgment of Palmer J Re Fenwick; Application of JR Fenwick Re ‘Charles’61 discussed immediately below in dealing with the New South Wales provision. On the other hand, there was a successful application in State Trustee Ltd v Do.62 Bell J stated as follows: The significance of the amendment is that the court is no longer required to be satisfied that the proposed will would ‘accurately’ reflect the person’s likely intentions. It is sufficient for the court to be satisfied that it would reflect their ‘likely’ or ‘reasonably … expected’ intentions. In that regard, the nature of the specified information eliminates the scope of the court’s function. The broadbrush approach is required, for otherwise the beneficial purpose of the function may be defeated.63

Finally, in Bailey v Richardson64 McMillan J addressed the matter by adopting the words of Habersbergen J in Saunders v Pedemont:65 Whilst the phrases now used in the Victorian Act required the proposed will to reflect ‘what the intentions of the person would be likely to be’ or ‘what the intentions of the person might reasonably be expected to be’, and are therefore different to the ‘reasonably likely’ wording of the New South Wales Act, I consider Palmer J’s analysis of that wording to be of assistance in constructing the alternative phrase in s 26(b). To adopt his Honour’s language, the phrase can mean ‘a fairly good chance that the proposed will reflects what might be the testator’s intentions’, or ‘some reasonable people could think that the proposed will reflects what might be the testator’s intentions’, or ‘some reasonable people could think that there is a fairly good chance that the proposed will reflects what might be the testator’s intentions’.

[page 112]

New South Wales 4.10

Section 22 of the Succession Act 2006 (NSW) provides as follows:

The Court must refuse leave to make an application for an order under Section 18 unless the Court is satisfied that: … (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity …

That provision received extensive judicial consideration by Palmer J in Re

Fenwick; Application of JR Fenwick; Re ‘Charles’.66 The Fenwick application involved an application by the older brother of the incapacitated person. That person, aged 60, had made a will some 10 years before he suffered an incapacitating accident. Medical evidence established that he was now incapable of making a will and would never regain testamentary capacity. Circumstances were such that because of the terms of the will, it was likely that the beneficiaries thereunder would die before the incapacitated person, in which case there would be an intestacy. It was also likely that the result of the intestacy would be that the estate, which was considerable, would vest in the Crown as bona vacantia. A proposed codicil to the will was sought to avoid this possibility. The ‘Charles’ application involved substantially different facts. There the incapacitated person was a child of 11 years who suffered severe and irreversible brain injury at the age of four months. The child was placed under the care of the Minister for Community Services. He was awarded substantial damages for the injuries by the Victims Compensation Tribunal. Charles’ parents were suspected of having deliberately inflicted the injuries on their son, but they were never criminally convicted. The Minister sought authorisation of a statutory will for Charles so as to avoid Charles’ estate passing on intestacy to his parents. The proposed will would pass his estate to his sister. In the event, leave to make the application was granted in both cases, and the codicil and statutory wills were made in terms propounded by the applicants by making final orders. As indicated above, the judgment of Palmer J contains an extensive consideration of the history of statutory will regimes, and is particularly critical of the course of United Kingdom authorities, up to the changes made by the Mental Capacity Act 2005 (UK).67 In the event his Honour stated that in interpreting and applying s 22(b) of the Succession Act 2006 (NSW): [T]his Court should not attempt to seek guidance from earlier authority … this Court should start ‘with a clean slate’, it must interpret the words of the section in the light of the problems and difficulties which seeks

[page 113] to remedy, bearing in mind that legislation of this kind should receive a benevolent construction.68

In considering the meaning of ‘reasonably likely’, his Honour pointed out (at [153]) that the term must be understood in one or other of its nuances in different applications of the provision, because the words will have to be applied in widely different types of cases. He instanced three major categories: (1) Intention in a lost capacity case. His Honour identified three possible scenarios here. The first is where the: … incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for statutory codicil or new will.69

In cases such as these the search for intention is the easiest. The court embarks on a fact-finding task, relating to whether the incapacitated person has actually stated or otherwise manifested a particular testamentary intention and also whether the person would have held that intention if possessed of testamentary capacity. The second scenario in a lost capacity case is where: … an adult with established family or other personal relationship has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances, such as the birth of a child or the death of a beneficiary under the existing will.70

In these cases, the court may be satisfied as to what the incapacitated person is reasonably likely to have done ‘in the light of what is known of his or her relationships, history, personality and size of the estate’.71 The final case is where the incapacitated person has never made a will. Then, according to his Honour, the court ought not to start with a presumed intention against intestacy: … the court must be satisfied by the evidence that it is ‘reasonably likely’ — in the

sense of a fairly good chance — that the person would have made a will at some time or other, had not testamentary incapacity intervened.72

It may be that the evidence, to the contrary, points to a decision to die intestate. In a lost capacity case, the court’s concern is with the actual, or reasonably likely, subjective intentions of the incapacitated person. [page 114] (2) Intention in a nil capacity case. According to his Honour the test here, unlike that in a lost capacity case, is entirely objective: … a search for any degree of subjective intention is impossible in a nil capacity case, where the person has been born with a mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition.73

In such a case, if a statutory will is not made, the person will inevitably die intestate, so the real question is whether there are significant assets. The court should authorise a statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all claims on the estate. In other words, in such a case it is ‘reasonably likely’ that the incapacitated person would have chosen to make a will, and is ‘reasonably likely’ that the incapacitated person would have made the proposed will: Whether a proposed will is ‘reasonably likely’ to have been made by a person who never had, and never will have, the smallest capacity to form testamentary intentions may be answered only in the sense, discussed above: ‘is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?’ In my opinion, in a nil capacity case, as distinct from a lost capacity case, this is the question which the words ‘reasonably likely’ in s 22(b) require the court to answer.74

His Honour emphatically rejected the ‘fictional’ United Kingdom position, expressed in Re C (a Patient)75 (discussed above) on this point.

(3) Intention in a pre-empted capacity case. His Honour classified this as a ‘teenager’ case, in that the incapacitated person is still a minor: … but has lost capacity at an age at which he or she had formed relationships and had, or reasonably could be expected to have had, a good understanding of will-making, intestacy and their consequences.76

He instanced the case of a 16- or 17-year-old who suffers severe and permanent brain damage in a motor vehicle accident and is subsequently awarded a large sum in damages. In such a case, but rarely, the ‘teenager’ may have expressed prior testamentary intention. If so, the same principle which governs the ‘lost capacity’ case should be applied. More likely, the ‘teenager’ has never expressed testamentary intention, in which case the proposed will must be one which is reasonably likely to have been one which he or she would have made. Here, as in a ‘nil capacity’ case, the court will start from the position that a teenager with [page 115] significant assets would not choose to die intestate. His Honour continued:77 The second, and most substantial question is: is it reasonably likely that the teenager would have made the will which is now proposed? This question involves both subjective and objective considerations. Because at least something — possibly a great deal — will be known of the teenager’s relationships and character before he or she lost capacity, the court will be able to form some view about possible subjective intentions. But because these intentions are no more than future possibilities, the court cannot take the search for subjective intention too far; it can be satisfied of ‘reasonable likelihood’ of the proposed statutory will only by taking into account of objective considerations also.

In summary, the judgment in this case provides a detailed and reasoned exposition as to the exercise of the power in New South Wales, particularly on the crucial question of the key concept of

intention. It may be contrasted with the pre-1997 position in Victoria (discussed above) duly noting that the statutory language is cast in a very different form. Certainly, there is a real and persuasive argument as to why the United Kingdom authorities should not be followed in most, if not all, Australian jurisdictions.78

Other jurisdictions 4.11 The Tasmanian79 and Australian Capital Territory80 provisions are in identical terms to the New South Wales provision, so presumably the suggested interpretation and guidelines provided in the judgment of Palmer J in Re Fenwick; Application of JR Fenwick; Re ‘Charles’81 will also be applicable to these jurisdictions, although as yet there has been no substantial judicial consideration. The Western Australian provision82 is not dissimilar and provides that the suggested will is one ‘which could be’ made by the person if the person were not lacking testamentary capacity. The Northern Territory [page 116] legislation83 avoids the term ‘reasonably likely’ but provides that the proposed will ‘is or might be one that would have been made by the proposed testator if he or she had testamentary capacity’. Finally, the Queensland legislation,84 which, in contrast, uses the terminology ‘that the person would make if the person would have testamentary capacity’. Obviously, there are subtle statutory differences in the terms of this legislation, but again, there has as yet been no substantial consideration.85 More recently, the Queensland provision was considered by Ann Lyons J in McKay v McKay.86 Her Honour frequently cited the judgment of Palmer J in Re Fenwick87 and adopted the distinction expressed there between the nil capacity, the pre-empted capacity and the lost capacity cases. There is a useful

review of the Queensland authority in all three situations,88 and particularly that of Re Keane89 where there is particular endorsement of the judgment of Megarry VC in Re D (J)90 (discussed above) as being applicable to the Queensland provision: I would reject the submission that the exercise under the Queensland legislation requires an assessment of whether the proposed will would more accurately reflect the testator’s likely intentions more probably than other possible dispositions. That may be the appropriate test under legislation in other States, but it is not the test under s 24(d).91

Her Honour considered this but continued: I consider that the present case can be clearly distinguished from Re Keane where the court was asked to approve a proposed will which was completely different to the will which had in fact been previously executed. I am not convinced that the approach by Megarry V-C in In Re D(J) is necessarily the appropriate approach in the circumstances of this case and also note the criticism of the approach by Palmer J in Re Fenwick who considered the approach as artificial, counterfactual and involving mental gymnastics.92

That approach was also reiterated by her Honour in Lawrie v Hwang93 and Re Matsis94 and also by Atkinson J in Sadler v Eggmolesse95 who expressly declined to follow the English approach in a nil-capacity case. [page 117]

Condition three: it is reasonable in all the circumstances (or appropriate) that an order should be made 4.12 In the Victorian Court of Appeal decision of Boulton v Sanders96 this condition was described as one of curial discretion: ‘want of testamentary capacity and the accurate reflection of likely intention are matter of fact. The third condition, that of reasonableness, invokes the exercise of curial discretion.’97 In that sense, it would appear that even if the first two conditions are satisfied, the court may nevertheless decline the application for the grant of an order. There is, however, little judicial guidance on the exercise of this discretion, as cases so far decided under the power have not necessitated substantial consideration of the condition.

In Re Fenwick; Application of J R Fenwick; Re ‘Charles’98 Palmer J indicated that the factors which the court must take into account when granting leave are of primary importance in the exercise of the discretionary power particularly concentrating on the possibility of a putative family claim.99 This approach was also adopted by Debelle J in Hoffman v Walters100 and Gray J in Re RAK.101 More recently, however, the matter has been considered by White J of the New South Wales Supreme Court in Hausfeld v Hausfeld.102 In that case the son of a testator who had lost testamentary capacity sought an order that a previous will of the testator be amended by substituting his wife for himself as one of the beneficiaries. The reason for this appeared to be that at the time of her application the son was being sued in the Federal Court, and if the claim was successful, the son would be forced to declare bankruptcy. Thus, if the claim was indeed successful, and the father died prior to the bankruptcy period, the creditors could have a claim on the estate. It was held that in these circumstances it was inappropriate to make an order in circumstances where the purpose of the proposed amendment was to defeat potential creditors and was contrary to the public policy. A similar result was reached in the Queensland decision of ADT v LRT,103 where, in a leave application, leave was refused in circumstances where the proposed changes to the will was to protect a son’s interests under the testator’s estate from the reach of property adjustment proceeding in the Family Court.104 On the other side of the line are the decisions in Doughan v Straguszl105 and Gau v Gau.106 The first concerned an application under the Queensland legislation involving a family farm. The daughter of the [page 118] testator who lacked testamentary capacity sought to amend her mother’s will by establishing testamentary trusts and also by replacing a gift to a brother

with a gift to his children. This was to ensure that the farm was to remain in the family for future generations. The difficulty was that the brother was liable for any outstanding debts of a business that had recently entered receivership. However, in approving the proposed will, it was held that the actual purpose of the amendments was not to defeat the prospective interests of the creditors of the estate, but were designed to protect the interests of the family as a whole, rather the interests of the son. It remains to consider the Queensland Court of Appeal decision in Gau v Gau. There a mother had by will left property to her adult son, with a gift over to his wife. The mother lost testamentary capacity and later the son separated from his wife and faced the prospect of a property division order being sought by his wife under the Family Law Act. The mother’s husband then made an application for a statutory will amending the original will by codicil, which would have had the effect of settling her property on a testamentary discretionary trust for her son and his children. At first instance, the application was denied on the ground that it was inappropriate to make the order which was intended to impact upon the Family Court proceedings. This decision was, however, reversed by the Court of Appeal where orders were made authorising the execution of the proposed codicil. The court stated: First, authorisation of the proposed alteration of the will by codicil would be in the interests of the testatrix because it would facilitate the taking of a step that she herself would most likely take was she able to do so. Secondly, it is a step that she would be freely able to take herself in organising the testamentary fate of her own property were she able to do so. Thirdly, as a senior counsel for the respondent conceded in argument, for her to take such a step would neither offend the policy of the law nor exhibit moral obloquy on her part.107

Unfortunately, the Court of Appeal made no reference to the decision in ADT v LRT.108 One commentator has noted that while the decision in Hausfeld was not expressly disapproved its authority may be doubted in the light of the reasoning of the Court of Appeal in this case.109

Time statutory will has effect 4.13

This matter was considered by Gray J of the South Australian

Supreme Court in Re Estate of Brown (decd).110 In an earlier decision, Re Brown,111 his Honour made an order authorising the making of a will for the proposed testator, who lacked testamentary capacity. In accordance [page 119] with that order, procedures were put in place for the drafting of the will. Section 7(9) provides as follows: A will of instrument altering or revoking a will made pursuant to an order under this section must be executed as follows: (a) it must be signed by the Registrar; and (b) it must be sealed with the Seal of the Court.112

The proposed testator died before the will was signed by the Registrar. The issue was whether the proposed testator needed to be alive at the time of the signing of the will for it to be valid. In the event it was held that it is the order of the court which creates the will, and not the signing of it by the registrar. It followed that the proposed testator need only be alive at the date of the order of the court authorising the making of a statutory will for it to be valid: ‘In this respect, the order of the court is the substantive order for the purpose of s 7 of the Wills Act, and the matters that follow from that order are essentially mechanical.’113 There is a general statutory requirement in all jurisdictions except South Australia114 that the proposed testator be alive at the date of the order authorising the statutory will.115 In New South Wales, the Northern Territory and the Australian Capital Territory,116 there is an additional requirement that when the registrar signs the will, he or she may only do so upon proof that the proposed testator is alive.

Costs 4.14

The ordinary rule in the case of testamentary causes jurisdiction is

that the costs of contending parties will follow the event.117 In statutory wills cases, however, the courts have generally distinguished between ‘lost capacity’ cases and ‘nil capacity’ cases. In the ‘lost capacity’ cases, as pointed out in Hill v Hill (No 2),118 where a will already exists, the contending parties are either seeking a benefit from the estate or are seeking to protect an existing benefit under the existing will. In these circumstances an order for costs will usually follow the event. That was the case in Hill v Hill (No 2)119 and in Boulton v Sanders (No 2).120 [page 120] This decision was upheld on appeal, Dodds-Streeton AJA stating as follows: Where an application is brought by and for the benefit of persons including the application, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful application, will be ordered to pay the costs of the proceeding merely because there is ‘a fair case of dispute’.

In determining whether it is appropriate to exercise the discretion to order that the costs of an application under Pt 3, Div 2 of the Act be paid from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person’s long-term security and welfare will always be an important consideration.121 In a nil capacity case, as noted by Debelle J in Hoffman v Walters,122 a number of interests might properly be before the court. His Honour pointed out that in such a case it is desirable that all relevant interests are before the court and that it would be a matter for regret if those persons were dissuaded from providing assistance to the court for fear that they might be obliged to do so at their own expense. After noting that in England the costs of a successful applicant are paid on a common fund basis out of the patient’s estate, his Honour continued: In my view, there is a strong argument that, since parties are seeking to advance individual

interests, each party should bear his own costs. Such an order was made in Monger v Taylor. That consideration must be weighed against the fact that there is a public interest in a person being able to make a will so as to enable the orderly disposition of his assets on death. So, where the applicant is the guardian of the person who lacks testamentary capacity, there might be good reason to allow the applicant to recover his costs out of the estate of the person who lacked testamentary capacity. Another relevant factor is the maintenance, well-being and support of the person who lacks testamentary capacity. In either case, it would be entirely inappropriate for the estate to be depleted by the costs of an application under s 7. Plainly, careful consideration must be given to the issue of costs. The order as to costs will depend upon the individual facts and circumstances of each case.123

1.

2. 3.

4. 5. 6. 7.

8.

9.

The current legislation is as follows: Succession Act 2006 (NSW) ss 18–26; Wills Act 1997 (Vic) ss 21–22: Tasmania is unique in that it empowers not only the Supreme Court but also the Guardianship and Administration Board with equivalent jurisdiction in this respect. However, this jurisdiction of the Guardian and Administration Board is limited in that the Board must be satisfied that the proposed testator has not previously made a will. Thus the Board does not have the power to amend or revoke a will. Tas: ss: 30–33. Succession Act 1981 (Qld) ss 21–28; Wills Act 1936 (SA) s 7; Wills Act 1970 (WA) ss 39–48; Wills Act 2008 (Tas) ss 21–41; Wills Act (NT) ss 19– 26; Wills Act 1968 (ACT) ss 16A–16I. Sections 96, 97 (originally commenced in 1969, but statutory changes since that date). It is to be noted that the United Kingdom legislation was itself amended by the Mental Capacity Act 2005 (UK), which fundamentally changed the focus of the provision, using the terminology of the ‘best interests’ of the person who lacked capacity as a guiding principle in the exercise of the power. The history of both the Australian and United Kingdom provisions are cogently traced by Palmer J in Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22. Wills for Persons Lacking Will Making Capacity: Report No 68, 1992. ‘Reforming the Law of Wills’, Law Reform Committee, Parliament of Victoria Final Report, May 1994. New South Wales Law Reform Commission, Uniform Succession Laws — The Law of Wills, Report No 85, 1986, Modern Wills Bill, C II 19–26. Secretary, Department of Human Services v Nancarrow [2000] VSC 450; Bryant v Blake [2004] SASC 369; Hoffmann v Walters (2007) 98 SASR 500; Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 (‘Charles’ application); Re RAK [2009] SASC 288; Re Kelso [2010] NSWSC 357. Monger v Taylor [2000] VSC 304; Hill v Hill [2001] VSC 83; State Trustees Ltd v Hayden (2002) 4 VR 229; Re Will of Maria Korp; DeGois v Korp [2005] VSC 326; Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 (‘Fenwick’ application); In the Matter of Brown [2009] SASC 345; Re Estate of Crawley [2010] NSWSC 618. ‘Reforming the Law of Wills’, Law Reform Committee, Parliament of Victoria, Final Report, May 1994 at s 5A.II.

10. 11. 12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

NSW: s 18(1); Vic: s 21(2); Qld: s 22; SA: s 7(1); WA: s 40(1); Tas: s 22(1); NT: s 20(1); ACT: s 16B. NSW: s 22(d); Qld: s 24(a); WA: s 42(1); Tas: s 24(a); NT: s 21(d); ACT: s 16E(d). NSW: s 19(1); Qld: s 22; SA: s 7(1); WA: s 40; Tas: s 23; NT: s 20; ACT: s 16B. Hoffmann v Walters (2007) 98 SASR 500 at [10], per Debelle J. See also Monger v Taylor [2000] VSC 304 at [22]; Boulton v Sanders (2004) 9 VR 495 at [11]; Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369; Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [119]; Saddler v Eggmolesse [2013] QSC 40 at [3]. But note the contrary view expressed by Hapersberger J in Saunders v Pedemont [2012] VSC 574 at [9] and the comments by the Queensland Court of Appeal in Gau v Gau [2014] QCA 303 at [44]–[52]. (2007) 98 SASR 500 at [10] per Debelle J. Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [121]–[125]. [1981] WLR 164. At [122]. (2007) 98 SASR 500 at [509]. Victorian Law Reform Commission, Succession Laws, Report No 26, 2013, [3.32]–[3.35]. [2015] VSC 255 at [26]–[29]. (2007) 98 SASR 500 at 509. Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) adding new ss 21A– 21D to the Wills Act 1997. NSW: s 22; Vic: s 21B; Qld: s 21(2); SA: s 7(3); WA: s 42; Tas: s 24; NT: s 21; ACT: s 16E. See also: NSW: s 19; Vic: s 21A; Qld: s 23; WA: s 41; Tas: s 23(2); NT: s 20; ACT: s 16B. (1870) LR 5 QB 549 at 565. (1897) 23 VLR 197 at 199. (1941) 66 CLR 277 at 283. (2009) 76 NSWLR 22 at [127]–[129]. See the analysis by Palmer J in Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [154]–[188]. SA: s 7(3)(b). Vic: s 26(b), until substituted by 38/2007 s 3. (2007) 98 SASR 500 per Debelle J. [1982] Ch 237 at 243–4. [1991] 3 All ER 866 at 870. (2009) 265 LSJS 263; [2009] SASC 288. [2009] SASC 345. [1982] Ch 237 at 244. [1982] Ch 237 at [34]. In the Matter of De Jager [2012] SASC 236; In the Matter of Manikas [2015] SASC 77. Re W, DJ [2015] SASC 45; Re G, CL [2015] SASC 80. [2016] SASC 53. Ibid at [51]–[53]. (2004) 9 VR 495. Reviewed in Boulton v Sanders (2004) 9 VR 495. [2000] VSC 304.

46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67.

68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78.

[1982] Ch 237. [2001] VSC 83. (2002) 4 VR 229; [2002] VSC 98. (2002) 4 VR 229 at 241. [1991] 3 All ER 866. [2001] VSC 109. (2002) 4 VR 229 at 241. (2004) 9 VR 495. (2004) 9 VR 495 at [111]. (2004) 9 VR 495 at 497. (2007) 98 SASR 500 at [30]. [2001] VSC 109. (2004) VR 495. [2012] VSC 574. Ibid at [90]. (2009) 76 NSWLR 22. [2011] VSC 45. Ibid at [11]. [2015] VSC 255. [2012] VSC 574 at [97]. (2009) 76 NSWLR 22. Followed more recently in Re Will of Jane [2011] NSWSC 624 per Hallen ASJ. It should be pointed out that those authorities no longer have any relevance to the new statutory provision in the United Kingdom: Re P [2009] WTLR 651; Re M, Itz and Others [2009] WTLR 1792. (2009) 76 NSWLR 22 at [148]. (2009) 76 NSWLR 22 at [145]. (2009) 76 NSWLR 22 at [159]. (2009) 76 NSWLR 22 at [161]. (2009) 76 NSWLR 22 at [166]. (2009) 76 NSWLR 22 at [171]. (2009) 76 NSWLR 22 at [176]. [1991] 3 All ER 866 at 870. Re Fenwick; Application of JR Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at [177]. (2009) 76 NSWLR 22 at [185]. But note the editorial comment in the report of the case in Re Fenwick (2009) 1 ASTLR 440 at 440: ‘While the difficulty of applying the test of “reasonably likely” intentions to a person who had never had capacity is evident, it is not “entirely objective”. Like the approach that has been established in the family provision arena, of the “just and wise husband and father” — referred to by Palmer J at [20] — the issue is being considered through the lens of the person in question. Perhaps a better description is that the court’s assessment, being reflective of a person in the position of the real proposed testator, is objective (being that of a reasonable, or “normal decent person”), but is subjectively anchored, with the moral duties and expectations of those around the

79. 80. 81. 82. 83. 84. 85.

86. 87. 88.

89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110.

proposed testator’. The case has been consistently followed and applied in New South Wales in subsequent decisions. See, for example, Re Will of Jane [2011] NSWSC 624; Estate of S (2012) 10 ASTLR 422; Burns v Estate of Burns (2013) I ASTLR 326; Application of Mary-Anne Lukic [2015] NSWSC 822. Tas: s 24(e). ACT: s 16E(b). (2009) 76 NSWLR 22. WA: s 42(1)(b). NT: s 21(b). Qld: s 24. Successful applications under the Queensland provision were made in Deecke v Deecke [2009] QSC 65 and Payne v Smyth as Litigation Guardian of Welk [2010] QSC 45, which were both straightforward cases. (2011) 4 ASTLR 429; [2011] QSC 230. (2009) 76 NSWLR 22. Nil capacity cases: Re Winstanley (unreported, SC(Qld), Daubney J, 18 January 2008); Re Joachim (unreported, SC(Qld), Dutney J, 22 December 2008); Payne v Smyth [2010] QSC 45. Pre-empted capacity cases: Deecke v Deecke [2009] QSC 65; Re Weick (unreported, SC(Qld), Applegarth J, 27 August 2009); Re Bock (unreported, SC(Qld), de Jersey CJ, 23 September 2010); Hickson v Humphrey (unreported, SC(Qld), de Jersey CJ, 11 April 2011). Lost capacity: Re Keane [2011] QSC 49 (Daubeney J). [2011] QSC 49. [1982] Ch 237. [2011] QSC 49 at [73] (Daubeney J). [2011] QSC 230 at [79]. [2013] QSC 289. (2012) 8 ASTLR 361. [2013] QSC 40. (2004) 9 VR 495. (2004) 9 VR 470 at [13]. (2009) 76 NSWLR 22. (2009) 76 NSWLR 22 at [193]–[199]. (2007) 98 SASR 500 at [18]–[20]. (2009) SASC 288 at [25]–[26]. (2011) 9 ASTLR 535. [2014] QSC 169. Compare with Re Matsis (2012) 8 ATSLR 361 (discretionary trusts). [2013] QSC 295. (2015) 12 ASTLR 593. Ibid at [63]. [2014] QSC 169. McKenna, ‘Statutory Wills and Public Policy’ (2013) 89 ALJ 227. (2010) 106 SASR 516.

111. 112. 113. 114. 115. 116. 117.

118. 119. 120. 121. 122. 123.

[2009] SASC 345. Wills Act 1936 (SA). (2010) 106 SASR 516 at [13]. Although in Re Estate of Brown (decd) (2010) 106 SASR 516, Gray J held that it was implicit in the legislation that the proposed testator be alive at the date of the making of the order. NSW: s 18(3); Vic: s 21(3); Qld: s 21(2)(b); WA: s 40(2)(a); Tas: s 22(3); NT s 19(3); ACT: s 16A(3). NSW: s 23(2); NT: s 19; ACT: s 16F(2). As pointed out by Debelle J in Hoffman v Walters (2007) 98 SASR 500 at [21], one exception to this rule is where the litigation has been occasioned by the conduct of the testator in which case the costs of the parties are to be paid out of the residuary estate of the testator. Note also the wide discretion as to costs contained within s 7(8) of the Wills Act 1936 (SA). [2001] VSC 135. [2001] VSC 135. [2003] VSC 409. Boulton v Sanders (2004) 9 VR 495 at [153]–[154]. (2007) 98 SASR 500 at [24]–[25]. (2007) 98 SASR 500 at [25].

[page 121]

Making a Will — the Formal Requirements

5

Introduction 5.1 In all Australian jurisdictions, certain formalities must be complied with before a will is valid. There are minor points of difference in the legislation,1 but fundamentally the following are required: (1) the will must be in writing; (2) the will must be signed by the testator or by some other person in the presence and by the direction of the testator; (3) the will must be signed or the signature must be acknowledged in the presence of two or more witnesses who are present at the same time; and (4) each witness must attest and sign the will in the presence of the testator.

These requirements apply to all wills, with the exception of privileged wills, which are considered below at 5.40. The approach of the courts in considering these requirements has been one of strict compliance. All requirements must be satisfied before a will can be admitted to probate. A testator may have fully intended the document to operate as a will, but it will still fail if it does not satisfy the formalities. As a consequence of this approach, all jurisdictions in Australia have enacted legislation allowing the admission to probate of wills that do not strictly comply with these formalities. This legislation is separately considered in 5.18–5.29 below. The power it gives the courts is conveniently referred to as the judicial dispensing power. Conversely, of course, a will may strictly comply with the formalities,

but nevertheless the mental element, as discussed in Chapter 3, may be lacking. Both the mental and formal requirements must be present for a valid will. [page 122]

Need for formalities 5.2 In relatively recent years, there has been a substantial amount of academic literature relating to the formalities for will-making.2 That literature has identified a number of functions that may be served by the formalities. These are conveniently summarised by Lang:3 (1) Evidentiary function. The principal purpose of the formalities is to provide proof of what the testator intended. As a will only comes into effect on death, a testator obviously cannot be questioned about intentions, and the written document is therefore the chief physical manifestation of testamentary wishes. It preserves in permanent form the language chosen by the testator to express those testamentary wishes and to indicate testamentary intention. Quite apart from the requirement of writing, the testator’s signature authenticates the document and identifies its maker, and attestation by disinterested witnesses acts as an important safeguard against matters being inserted into a will without the testator’s knowledge. (2) Cautionary or ritual function. Will-making is a serious business, not to be undertaken without due deliberation. The formalities may be said to emphasise the solemnity of the testamentary act. Faced with the need for formalities, potential testators will be more cautious and careful with the expressions of their intentions. In the words of Lang:4 The presence of the signature shows that the instrument was adopted by the testator as his will and that the writing was not merely deliberative, or a preliminary draft, or haphazard scribbling. The requirement for attestation also confirms the testator gave due consideration to the consequences of the testamentary act. (3) Protective function. Probably one of the original justifications for formality in will-making,5 it has been argued that the presence of the formal requirements tends to discourage undue influence, fraud, forgery and impropriety. Whether they do so or not is debatable.6 (4) Channelling function. Given the multitude of wills that must be considered for a grant of probate before estates may be distributed, the formalities tend to make the task of establishing the integrity of the will that much easier. In other words, they standardise testamentary activity to a form that is readily recognisable. The risk of litigation is also thereby reduced.

[page 123] Bearing in mind these functions, an analysis of each of the formal requirements will be made in this chapter. Each has attracted a large volume of case law, and in many cases judges have expressed regret that a testator’s clear intentions have been defeated by the necessity of strict compliance. Thus in Re Colling,7 for example, Ungoed-Thomas J stated (at 731): It is perhaps unfortunate … that the section [the formality section] has manifestly on occasion, defeated the intention of the testator and in some cases, of which this is one, glaringly so. The requirements of the section, however, are established as strict and technical.

After holding the will invalid, the judge continued (at 732): I come to this conclusion with the greatest regret, and only because I feel compelled to do so despite its so patently defeating the intention of the testator and involving no advantage, as far as I can see, in the avoidance of any fraud.

This is not to deny, however, that in other cases, the courts have been extraordinarily liberal in the interpretations of the formalities, as in Goods of Hornby:8 see 5.7 below. It is not difficult to agree with Mellows9 that: [T]here has resulted the undignified spectacle of the courts indulging in schizophrenia, sometimes bending backwards to save a will despite apparent formal defects, and sometimes standing firm on trivial and highly technical defects.

As a consequence of this, as has already been noted in 5.1 above, all Australian jurisdictions now possess judicial dispensing powers that allow the courts to dispense with strict compliance with the formalities in certain defined circumstances. The importance of these powers is undoubted and they are discussed in some detail in 5.12–5.29 below.

Formalities Writing 5.3 Except for privileged wills, a will must be ‘in writing’ to be valid. While that expression is not defined by the Wills Acts, the Acts interpretation

legislation of the various jurisdictions10 provides that writing includes any mode of representing or reproducing words in a visible form. A will may, therefore, be handwritten, typed, printed, lithographed or photographed. If the will is in fact handwritten, care should be taken that the same method is used throughout, as it has been held that in a case where both ink and [page 124] pencil writing have been used, the pencil writing was deliberative only, and not testamentary.11 For this to apply, the writing in ink must be able to stand alone. There is no restriction on the language used by the testator. A will written in code, for example, may be admitted to probate, provided there is extrinsic evidence available to decipher its meaning.12 Further, the writing need not be continuous so that blank spaces on pages will not invalidate the will, although it may lead to problems of construction.13 There are also no restrictions upon the material on which the testamentary intentions are expressed. In the oft-quoted case of Hodson v Barnes14 a will written on an empty egg shell satisfied the requirement of writing, although the court held that the writing was not intended as a will. More recently, in In the Estate of Slavinskyj15 Legoe J of the South Australian Supreme Court admitted to probate a will written on the wall of the testator’s house. The problem of lodging the original will with the Probate Registry was overcome by photograph and affidavit, although it appeared that as the will was written on plasterboard it was physically possible to file in the registry.16 Similarly, in a Canadian decision,17 holograph writing scratched on a tractor fender was upheld (and filed).

Requirement of a ‘signature’ 5.4 The requirement that the testator must sign the will has been construed by the courts with considerable liberality. The construction adopted is that

the testator must place some mark on the will with the intention that that be a signature. As was stated by Lowe J in Re Male18 ‘the real test is whether what has been written by the testator was written by him as an authentication of what precedes it as his will’. In accordance with this construction, the following have been held sufficient to constitute a sufficient signature: (1) a mark regardless of whether the testator can write or not;19 (2) an inky thumb print20 and a rubber-stamped impression of the testator’s name;21 [page 125] (3) an assumed or incorrect name;22 (4) a phrase descriptive of the testator, such as ‘your loving mother’;23 and (5) initials,24 and part of the testator’s signature — provided that the actual mark made was intended to constitute a signature for the purpose of execution.

Thus in Re Chalcraft’s Goods25 the testatrix signed ‘E Chal’ when her normal signature was ‘E Chalcraft’. She was too weak to continue, but the court held that the part signature was all that she intended to put as her signature. For the purposes of attestation, however, a part signature will not suffice if the testator intended to complete the whole signature. In Re Colling,26 for example, a testator started to sign his name in the presence of two witnesses. Before he had completed the signature, one of the witnesses was called away, and the testator completed his signature in her absence. As the testator had intended to sign his full name, the will was not properly witnessed: see 5.13 below. The issue of electronic signatures has not yet arisen in Wills cases, but certainly in the commercial environment the common law has ‘quickly adapted to electronic commerce’.27 As that author points out, an electonic signature is no more than an electronic means of performing the function of a signature, that is an intention to be bound and authentification.28 The Wills Acts make it clear that the will may be signed by some other person for the testator, provided the signing is in the presence and at the direction of the testator. This provision obviously allows a person who is

illiterate or physically incapable of signing to execute a valid will. The person signing may sign either their own name or the testator’s name, or indeed both.29 The person signing on behalf of the testator may also witness the will.30 The requirement of ‘presence’ is similar to that in relation to attestation: see 5.8 below.

Position of the signature 5.5 The Wills Acts originally required that the testator sign the will ‘at the foot or end thereof’.31 Testators naturally disregarded this requirement, with the result that many wills were held to be invalid. In 1852 an amendment to the UK Wills Act was passed,32 and initially followed in all Australian jurisdictions,33 the purpose being to relax the strict original [page 126] requirements. The language of the amendment was verbose, but essentially allowed some departure from the physical position of the signature. The rationale behind the legislation is clearly to prevent unauthorised interpolations, and modern scientific evidence should reveal these. In all jurisdictions there is thus now no requirement that the will be signed at the foot or end. In Western Australia, the testator’s signature is only required so that it is apparent, on the face of the will, that it is intended to give effect to the terms of the will. The position of the signature is irrelevant. The New South Wales and South Australian legislation is similar, but goes further in that the intention may also be ascertained by extrinsic evidence.34 In Victoria, the signature must be made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will.35 Queensland, New South Wales, the Northern Territory and Tasmania all provide that the signature need not be at the foot of the will.36 The legislation nevertheless requires the testator’s signature must be made

with the intent of authenticating the will, regardless of its position. Extrinsic evidence is admissible in respect to this. There have been cases where a signature has been attacked as not disclosing operative intention: Wood v Smith37 is an example. The testator there had, in his own handwriting, written out a will which started with the words ‘my will by Percy Winterbone’. Dispositions of his property followed. Upon completion he requested the witnesses to sign as witnesses. They pointed out that he himself had not signed the will, to which he referred to the opening words of the will where his name appeared. It was argued that there was no operative signature, as the ‘signature’ had been written on the document prior to the dispositions and therefore could not have been intended to ‘give effect’ to the contents of the will. This argument was rejected by the Court of Appeal as the testator had indicated in clear terms to the witnesses that he intended his name at the beginning of the document to give effect to the whole document, which was completed in one operation. A similar decision was reached in Weatherhill v Pearce,38 where again there was one operation. In that case, the signature was contained in the attestation clause. It is a requirement, however, that the testator’s signature be somehow connected to the will to satisfy the intention element. Again, however, there is some liberality in that respect, but if the will consists of more than one page, the several sheets should be fastened together by some means before exectution to protect against loss or fraud39 and to rebut any suggestion that the testator did not consider all of the sheets or one document. This principle will also be satisfied if the will is enclosed in an envelope on which the testator’s signature appears. In which case the paper [page 127] and envelope are capable of together constituting the will of the testator.40 Nevertheless, it still must be shown that the signature was intended to give

effect to the will, rather than to merely identify the contents.41 This will be particularly the case where the testator is under the mistaken impression that the paper contained in the envelope was effectively signed. Finally, sufficient connection and intention will also be satisfied where even though there are a number of unattached sheets, it is proved that the sheets were in the same room at the time of the execution.42

Signing or acknowledgment of signature in presence of two witnesses 5.6 The testator must sign the will in the presence of two or more witnesses or, if the will is already signed, the testator may acknowledge the signature in the presence of such witnesses. The meaning of signature has been considered above. For a valid acknowledgment a number of elements are required: (1) The will must already have been signed before acknowledgment. (2) A signature may only be acknowledged if the witnesses either see or have the opportunity of seeing the signature. It was held in Re Groffman43 that this rule will apply even where the concealment is unintentional. (3) The acknowledgment is of the signature and not the will itself. Accordingly, it is not essential that the witnesses should know that the document is a will. (4) No formality is required. It is sufficient if the testator merely requests the witnesses to sign the document the testator produces and they see or have the opportunity of seeing his or her signature on it. A testator may indeed acknowledge by gesture.44

Presence of two witnesses 5.7 The requirement is that two or more witnesses must be present at the same time when the testator’s signature is made or acknowledged. This means that the witnesses must not only be physically but also ‘mentally’ present: they must not be ‘asleep or intoxicated or of unsound mind’.45 It would appear that a blind person cannot be a witness46 although of course such a person may make a will. [page 128]

As already discussed in considering the requirement of acknowledgment (see 5.6 above), the witnesses must either see or have the opportunity of seeing the testator’s signature or acknowledgment, so that if one witness, for example, is so far away at the relevant time that he or she did not have the physical opportunity of seeing the signature at the same time as the other witness the will is invalid.47

Meaning of attestation and subscription 5.8 The witnesses must attest and subscribe the will in the presence of the testator, but not necessarily in each other’s presence. On the other hand, the testator must sign, or acknowledge his or her signature, in the presence of both witnesses. Attestation here means the mental act of witnessing the testator’s signing or acknowledgment; subscription, the actual signing of the will by the witnesses. To be valid, therefore, the witnesses must attest and subscribe the will after the testator has signed or acknowledged. Signature in this respect has the same meaning as considered above (see 5.4) in the context of the signature of the testator, but, unlike in that case, another person cannot sign on behalf of the witness. There is no need for the signature of a witness to be placed in any particular position on the will. In other words, it need not be at the end of the will, or next to or below the testator’s signature. Nor are both witnesses required to sign in the same place. It is prudent, however, for both witnesses to subscribe their signatures below that of the testator at the foot or end of the will, to avoid suggestions that the signatures were for some other purpose other than attestation.48 The witnesses must sign the will with the intention of witnessing the testator’s signature, and not, for example, for the mere purposes of identification.49 It is also essential that the witnesses attest the actual signature of the testator, and not some other signature.50 A will may consist of a number of pages, each signed by the testator, but the signature attested must be the operative (usually the last) one.

Finally, legislation in most jurisdictions now provides that it is not necessary to show that the witnesses actually knew that they were attesting and signing a will for a sufficient attestation and subscription.51

In presence of testator 5.9 The meaning of ‘presence’ has again been liberally interpreted, as meaning not only the actual sighting of the signing by the testator, but [page 129] also whether the testator was in a position to see the signing if the testator chose to so do.52 Thus, if a testator should sign a will, and a witness takes it into another room and signs, the attestation will only be valid if it can be shown that the testator could, from the position which he or she occupied at the time of signing, have seen the witness sign the will.53 ‘Presence’ also connotes a mental awareness of what is happening; again it must be shown that the testator was aware that the witnesses were signing the will. One particular problem relating to presence is highlighted by the wellknown case of Re Colling.54 The testator in that case was a patient in hospital and requested another patient and the ward sister to witness his signature to his will. He commenced to write his signature, but while doing so, and before completion, the ward sister was called away to attend to another patient. The testator completed his signature in her absence, but in the presence of the other witness, who then signed. When the sister returned, the testator and the other witness acknowledged their signatures, and she signed as witness to the acknowledgment. The will was held invalid on the ground that the subsequent acknowledgment by the testator of his signature in front of both witnesses was not sufficient where only the witness who had left had subscribed her signature at that time. To validate the will, the ‘first’ witness would have had to sign again.55 In other words, the testator must make or

acknowledge his or her signature in the presence of both witnesses before attestation. The witnesses cannot be split up between a signature and a subsequent acknowledgment, or indeed between two separate acknowledgments. The problem posed by such cases as Re Colling56 directly led to the imposition of the judicial dispensing powers in Australia, discussed below at 5.12, which now allows a court to alleviate the effect of such technical defects.

Attestation clauses and presumption of due execution 5.10 The Wills Acts make it clear that no form of attestation is necessary.57 It is desirable, however, to include such a clause, as it facilitates the grant of probate. The clause is designed to provide prima facie evidence that the requirements of the Act have been fulfilled. A simple form, approved in Re Selbey-Bigge,58 is as follows: ‘Signed by the abovenamed testator in our presence and attested by us in the presence of him and each other.’59 [page 130] In the absence of such a clause, or indeed, where evidence is forthcoming that the will was not executed, it will be necessary to prove that the statutory requirements are fulfilled. This will usually require affidavit evidence by one or both of the witnesses, or by other persons present at the time of execution. Further, there is a presumption of due execution of wills60 that arises where both witnesses are dead or are unavailable or undiscoverable or where one or both may still be alive but have no recollection of the events surrounding the execution of the will.61 That presumption will operate very strongly indeed in the presence of a formal attestation clause, although it is rebuttable.62

Summary

5.11 The discussion of the case law above reveals that the interpretation of formalities has been the subject of prolific litigation and it is not difficult to lose sight of the basic principles. The best way to make sure that the will is valid in its formal elements is to have both testator and the witnesses together,63 the will first signed by the testator at the foot or end of the writing, with the witnesses signing immediately after with a formal attestation clause. To recap upon some of the elements: (1) The will must be in writing, preferably of the one type. (2) It must first be signed by the testator, preferably with the testator’s usual signature. If it is signed by someone else at his or her direction, it must be so signed in the testator’s presence and the witnesses’ presence and that fact made clear to the witnesses. (3) The will should be signed at the foot or end of the will; that is, after all the dispositions. If the will is more than one page, the pages should be numbered and attached. (4) The two witnesses must both be present when the will is signed. (5) The witnesses must then sign (that is, after the testator) in the presence of the testator and preferably in the presence of each other. (6) There should be a formal attestation clause and the will should be dated. (7) In some jurisdictions, the witnesses must not be beneficiaries (or the spouse of the beneficiaries) under the will. If they are, they will lose the benefit, though the will itself will not be invalid. This rule is dealt with in greater detail below: see 5.30. (8) The above discussion should also be considered in relation to the judicial dispensing powers and these are explored immediately below.

[page 131]

Judicial dispensing powers Informal wills Introduction 5.12 The law discussed above, relating to the formalities, has led to a complex and, indeed, inconsistent body of judicial decisions, and in many cases has resulted in the testator’s clear testamentary intentions being

defeated by technical defects. As one American commentator has pointed out, relentless formalism is characteristic of the law of wills.64 Judicial dissatisfaction with strict formalism has also often been expressed, as by Morris J in Re Davies: I am satisfied that the testatrix knew what she was doing and desired that her wishes, as set out in the will of February 9, 1949, should be carried out, but as this point, which is merely a technical one, has been taken by the defendant. I am compelled to decide the case in accordance with law, even though my decision has the effect of defeating the purpose and intention of the testatrix.65

And by Ungoed-Thomas J in Re Colling: It is, perhaps, unfortunate, particularly in circumstances where the section itself contemplates oral evidence as necessary, that the section [9] has manifestly on occasion, defeated the intention of the testator and, in some cases, of which this is one, glaringly so. The requirements of the section, however, are established as strict and technical.66

After holding the will invalid, his Honour continued: I come to this conclusion with the greatest regret, and only because I feel compelled to do so despite it so patently defeating the intention of the testator and involving no advantage, as far as I can see, in the avoidance of any fraud.67

The history of reform to the requirement of strict formalism, allowing a court to admit wills to probate despite defects in the formal requirements, commenced with legislation passed by the South Australian Parliament in 1975. That legislation, with various but not substantial amendments, has formed the model for the current law in all the Australian jurisdictions. The original South Australian provision was contained in s 12(2) of the Wills Act 1936 (SA) and provided: A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.

[page 132]

This provision was replaced in 1994 by the following: Subject to this Act, if the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses testamentary intentions of a deceased person, the document will be admitted to probate as a will of the deceased person.

Aside from removing legislative surplusage from the original provision, the revised s 12(2) reduced the standard of proof from the criminal to the civil standard and also limited the inquiry to whether the document expressed testamentary intentions. The section was again amended in 1998 and 2000, with the current provision being as follows: Subject to this Act, if the Court is satisfied that — (a) a document expresses testamentary intention of the deceased person; and (b) the deceased intended the document to constitute his or her will, the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.68

In 1986, the New South Wales Law Reform Commission,69 in an extensive examination of the issue, recommended the adoption of a judicial dispensing power based upon the original South Australian provision (but with some significant amendments) and that recommendation was furthered by the insertion of s 18A of the Wills, Probate and Administration Act 1898 (NSW) in 1989 (now repealed and replaced by the Succession Act 2006 (NSW) s 8). Subsequently, most jurisdictions, with the exception of Queensland (as to which see below) passed legislation broadly based on the South Australian model, but with modifications. That legislative activity occurred in Tasmania,70 Western Australian,71 the Australian Capital Territory72 and the Northern Territory.73 In Victoria, the last jurisdiction to consider the matter, legislation was passed in 199774 implementing the recommendations of that state’s Law Reform Committee in 1994.75 That Committee had the benefit of assessing the considerable judicial consideration of the power in the other jurisdictions and particularly South Australia and Queensland. It recommended legislation based on that in South Australia in order to provide the judiciary with persuasive precedents.76 As a consequence of this, the National Committee

[page 133] for Uniform Succession Laws decided that uniform legislation on the matter should be based upon the Victorian Model, but with some minor modifications.77 In effect, all jurisdictions have now amended legislation. The current legislation is as follows: Succession Act 2006 (NSW) s 8; Wills Act 1997 (Vic) s 9; Succession Act 1981 (Qld) s 18; Wills Act 1936 (SA) s 12(2); Wills Act 1970 (WA) s 32; Wills Act 2008 (Tas) s 10; Wills Act 1968 (ACT) s 11A; and Wills Act (NT) s 10. The legislation in New South Wales, Queensland and the Northern Territory is almost identical, with minor differences in the other jurisdictions.

Informal wills — previous Queensland provision 5.13 In 1981, the Queensland Parliament adopted an alternative approach to the reform of formalism enacting a provision recommended by the Queensland Law Reform Commission,78 and based upon a ‘substantial compliance’ doctrine originally advocated by Professor Langbein.79 The then Succession Act 1981 (Qld) s 9(a) provided as follows: (a) the Court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the Court is satisfied that the instrument expresses the testamentary intention of the testator.80

This provision obviously required that admission to probate without the requisite formalities could only occur if the court was satisfied that there had been substantial compliance with those formalities. Only then could the court examine the matter of the intention.81 In other words, even if the court was satisfied that the document did express the testamentary intentions of the testator, that was not a decisive criteria. There had also to be substantial compliance with the formalities. As was stated by Williams J in Re Eagles: If that [intention] was the decisive consideration then there would be no need for the formalities which have for centuries been associated with the due execution of a will.82

Unsurprisingly, given the terms of the legislation, the reported cases on the

provision adopted a restrictive interpretation. There were a number of decisions which analysed the relative importance of each formality. In Re Grosert,83 the will was signed by the testator and also bore the signatures of two persons as witnesses. One witness gave evidence that only she was present upon signing and the other witness could not be [page 134] found. Vasta J held that while there was no doubt that the instrument expressed the testamentary intention of the testator, ‘there has been a lack of compliance with what I would regard as a most important provision of the section’.84 In Re Johnston,85 the deceased signed the document in the absence of witnesses. Over a course of a period of approximately one week, he then secured, separately, the signature of two witnesses, neither of whom saw the contents or any part of the document, but one was told that it was a will. Thomas J held that the facts revealed a substantial departure from even the basic formal requirements. It was not therefore necessary to consider the intention requirement. In Re Eagles,86 the testatrix, aged 94, signed her will in her doctor’s presence, who witnessed it. Sometime later, a neighbour signed as witness. The application was refused, Williams J holding that the onus is on the party seeking to propound the will to establish, with some degree of precision, what occurred and when with respect to the attestation. That evidence was lacking in this case.87 There were some later decisions which took a more supportive view of the intention requirement, particularly by her Honour Atkinson J in Public Trustee v Attorney-General,88 but Professor Langbein, in an analysis subsequent to that of his earlier support for the reform, suggested that because of the restrictive interpretation the provision had been nearly useless.89 Given the judicial response and the actual terms of the legislative provision, it was not surprising that the ‘substantial compliance’ doctrine was

abandoned in 2006 and replaced by the judicial dispensing power in s 18 of the Succession Act 1981 (Qld).

General approach to the legislation 5.14 As a fundamental starting point in considering the nature of the legislation, there have been many judicial statements to the effect that the provisions are remedial in purpose and liberal in approach. The legislation allows a document to be admitted to probate notwithstanding noncompliance with the statutory formalities, provided the three fundamental conditions are met, as to which see below. Apposite are the words of Jacobs J in Re Estate of Graham (decd): But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.90

[page 135] And those of King CJ in In the Estate of Williams (decd): Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the subsection other than in accordance with the natural meaning of the words used.91

In the New South Wales Court of Appeal decision in Re Estate of Masters (decd); Hill v Plummer,92 Kirby P favoured the same broad approach to be adopted in respect to the New South Wales provision and endorsed the above judicial statements.93 Nonetheless, the actual formalities as considered above remain, and there are also statements to the effect that notwithstanding the remedial nature of the provisions, care must be taken that the statutory formalities enshrined in

the Wills Acts generally are not unduly relegated in importance.94 Further, the existence of the power does not alter the fundamental principles of probate law in respect to the mental elements. Thus, even if the informal will satisfies the criteria for admission to probate, it still will not be admitted in the (admittedly unlikely event) that it lacks the requisite testamentary intention.95 If the informal will is affected by fraud or undue influence, there will be a similar prohibition. Finally, and more fundamentally, it must still be shown that the testator had mental capacity, as discussed in Chapter 3. Such matters are more likely to arise, or be argued, in cases where the maker of the informal will has committed suicide,96 but is applicable to all cases if there is evidence that the testator lacked the requisite mental capacity.97

Use of previous authorities 5.15 As two of the essential elements in the application of the doctrine involve the ascertainment of individual intention, there are expressions of judicial opinion that each case ultimately depends on its own facts.98 While this is so, there are also expressions of judicial opinion that [page 136] previous decisions may indeed be useful as offering guidance in respect to cases with similar factual circumstances. Thus Gray J in Re Estate of Schartzkopff,99 after reviewing ‘guiding’ authorities stated: These authorities show the approach by the court to particular factual circumstances. They demonstrate the care taken to ascertain whether in those circumstances it is inappropriate to invoke the provisions of s 12(2) in the form that the section existed at the relevant time. The cases are of limited value as precedents. They do, however, provide a degree of general guidance.100

Scope of the dispensing power

5.16 As the South Australian provision has been in force now for a considerable period of time, there have been a large number of judicial decisions identifying the principles to be applied in relation to the provision. A substantial body of case law has also been developed in New South Wales.101 That case law, together with that from other jurisdictions, has revealed that all aspects of the formal requirements have been considered under the judicial dispensing power, with a substantial number of successful applications. Thus, there are cases where the testator has failed to sign the document at all or fails to sign all pages, where the will is unwitnessed, where two or more witnesses are not present at the same time and where there are unauthorised alterations and additions being made to the document. There may be a combination of these defects. Due to the fact that Probate Registrars in all jurisdictions are given jurisdiction to deal with applications without intervention of a Probate Judge in clear and uncontested cases, it is difficult to quantify the type of errors which have nevertheless resulted in probate being granted, but relevantly the reported and unreported cases have ranged through the whole spectrum of errors. Some attempts have been made to quantify and characterise the case law, with Powell J writing extra-judicially, considering the New South Wales provision up to 1992.102 There is also a valuable survey by Lester,103 concluded in 2007, which examined the case law in South Australia and New South Wales 20 years after Professor Langbein’s 1987 Australian research.104 There has also been some reform to the strict compliance [page 137] rule in other common law countries; but it has not been as extensive or comprehensive as that in Australia, and therefore is of limited value in assistance in consideration of the legislation.105

Legal criteria 5.17 These are well-established and follow the legislation. They are conveniently summarised in the judgments of O’Loughin J of the South Australian Supreme Court in In the Estate of Ryan (decd),106 Powell J in Re Application of Brown: Estate of Springfield107 and the New South Wales Court of Appeal in Re Estate of Masters (decd); Hill v Plummer.108 The following dicta from Powell JA in Hatsatouris v Hatsatouris109 is oft cited: It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being: (a) Was there a document? (b) Did that document purport to embody the testamentary intentions of the relevant deceased? (c) Did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, will?

Consideration of all three criteria follows. [page 138]

Definition of document 5.18 As a threshold requirement, there must be a document. A merely oral statement, therefore, is ineffective under the dispensing powers.110 However, the document need not be in the traditional or classic form, and reference is often required to be made to the various Interpretation Acts of each jurisdiction for the definition of a ‘document’. Thus, in New South Wales, the Interpretation Act 1987 in s 21(1) defines that term as: … any record of information, and includes: (a) anything on which there is writing; (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings are capable of being reproduced with or

without the aid of anything else; or (d) a map, plan drawing or photograph; …

and this is made specifically applicable to the general dispensing power.111 There is a similar definition in the Northern Territory.112 Similarly in Tasmania, the legislation defines a document as having the same meaning as contained in s 24(bb) of the Acts Interpretation Act 1931 (Tas).113 In respect to the other jurisdictions, while there is no specific link, the generally broad definition of document in the various Interpretation Statutes will govern.114 Given the remedial nature of the legislation, the courts have construed the meaning of ‘document’ in a wide sense, and this has of course, been assisted by the breadth of the statutory provisions.115 Given that, the following have been held to be a sufficient document for the purpose of the legislation: (1) Suicide notes. In Ryan v Kazacos,116 it was held that the mere fact that the document propounded as a will under the dispensing power is also a suicide note does not disqualify it. That decision has been followed by a number of more recent authorities.117 (2) Lost wills. Orders have been made with reference to these, reconstruction being effected by the court from memory and notes.118 [page 139] (3) Writing on a wall. The decision in In the Estate of Slavinskyj119 has already been discussed above at 5.3. (4) An audio-tape. While clearly not satisfying the requirements of ‘writing’ for the purpose of the normal formalities (not being a visual representation of the words used), it may nevertheless be a ‘document’ for the purposes of the dispensing power. In Treacey v Edwards,120 Austin J of the New South Wales Supreme Court admitted to probate an audiotape under the dispensing power on this reasoning. Reference was placed on the Interpretation Statute in that jurisdiction,121 which defines a document as, ‘inter alia, … anything from which sounds, images or writing can be reproduced with or without the aid of anything else’. An audio-tape clearly fell within this definition and Austin J was also satisfied as to the intention element, discussed below. (5) A videotape: DVD. This was first addressed by Windeyer J in the New South Wales decision of Cassie v Koumans122 where his Honour held, albeit reluctantly, that a videotape constituted a document for the purposes of the New South Wales legislation. A similar result was reached by Dalton J of the Supreme Council of Queensland in Mellino v Wnuk123 by Gray J of the Supreme Court of South Australia in Estate of Wilden124 and by Lindsay J of the New South

Wales Supreme Court in Estate of Chan.125 In the latter case, however, his Honour had this to say: Although, as a matter of jurisdiction, a testamentary statement in the form of a video will satisfies the requirements of section 8, the nature of the informality attending an oral statement of testamentary intentions might, in practice, present an impediment to the Court being satisfied that the requirement of the section have been met (as Cassie v Koumans [2007] NSWSC 481 at [14]–[15] illustrates); the transaction costs of satisfying the Court that those requirements have been met may be an unnecessary burden on the will-maker’s deceased estate (as the present case demonstrates); and the informality of expression that commonly characterises an oral statement may be productive of uncertainty as to the terms, or proper construction, of a video will, with a consequential, heightened risk of litigation following the death of the will-maker. On that account, a casual approach to recording testamentary intentions in a video will is not recommended.126 (6) Electronic recording on iPhone. In Re Yu127 the deceased committed suicide but shortly before he died he created a series of documents on his iPhone, most of them final farewells but one which contained a [page 140] document which commenced ‘This is the Last Will and Testament …’ of the deceased. Peter Lyons J held that that which was created and stored on the iPhone was a document for the purposes of the dispensing power in that jurisdiction and was satisfied that the other two conditions as discussed above were also satisfied. A declaration was accordingly made that the document created on the iPhone be admitted to probate. (7) Photographs. The Interpretation Statutes of most jurisdictions specifically include a photograph as being within the definition of a ‘document’, but in any event, even in the absence of such definition, it has been held that such is the case at common law. In Re Estate of Torr,128 Besanko J admitted to probate, under the dispensing power, unsigned photographs of personal property as a codicil to the will of the testator. (8) Computer files. In Re Trethewey,129 the deceased told a number of people that he had left a will on his computer. After his death, a search of the computer indeed revealed a file containing a ‘will’. The document produced from the file was unsigned (in the normal sense) but its contents were consistent with what the deceased had told his friends about his testamentary intentions. It was held that the computer file was a ‘document’ for the purpose of the legislation and that the other conditions for the granting of probate, discussed immediately below, had been satisfied. Probate of the file was accordingly granted.130 There are similar decision in Yazbek v Yazbek131 and Estate of Currie.132 (9) Part of a document. The legislation contemplates that only part of a document may be informal, in which case that part may be admitted to probate if it satisfied the criteria.

Document must purport to record the testamentary intention of the deceased 5.19 The second requirement involves ‘a consideration of whether the documents contain a statement of her intentions as to what was to happen to the property described in the documents upon her death’.133 This is simply a question of fact, but there is a considerable overlap with this and the third requirement, that is whether the testator, without more, intended [page 141] the document to operate immediately as his or her will.134 Nevertheless, the second and third requirements need satisfaction of two discrete intentions. Not only must the testator intend to record a testamentary intention, but he or she must also intend the document to constitute his or her will. The legislation is not designed to admit documents to probate where there is a record of testamentary intention, but where there is no intent that that document is to constitute the will of the maker of the document. The relationship between the two is further considered immediately below under the examination of the third requirement.

Testator intended the document, without more, to operate immediately as a will 5.20 First, it is established law that it is not necessary that the testator attempts to comply with the formalities as indicative of intention to operate as a will. In Re Estate of Graham (decd),135 for example, Jacobs J stated, in an answer to a submission that such an attempt was necessary: I find no warrant for such a limitation in the language that Parliament has used, and, indeed, if it were adopted, it would defeat the present will, notwithstanding that I am clearly satisfied … that the deceased intended the document to constitute her will. It cannot really be said that she ever attempted to comply with [the formality provisions] at all.

On the other hand, the greater the departure from compliance with the

formal requirements, the harder it will be for the court to reach the required standard of satisfaction in respect of both elements two and three.136 Second, the distinction between the intention required by the second requirement and that of the third has been well articulated by dicta in a number of authorities. Thus Mahoney JA stated in Re Estate of Masters (decd); Hill v Plummer: There is principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will.137

And Kirby P in the same case: … by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting ‘his or her will’, the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased’s will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions and a document which, although falling short on formalities, sufficiently

[page 142] evidences the fact that by it the deceased intended to govern the disposition of his or her property after death.138

The test, therefore, is really one of ‘immediacy of intention’, a term used by Vines in her examination of the issue.139 As that commentator explains, this means that for a successful application there is a real difference between proving the second element (that is, that the document must purport to record the testamentary intention of the deceased) and the third element (that is, that the testator must intend that the document constitute his or her will). There has been some recent judicial consideration both from the Supreme Courts of New South Wales and Victoria of the phrase ‘without more’ in the formulation of the third criteria by Powell JA in Hatsatouris v Hatsatouris.140 The most recent dicta is from the judgment of Hallen J in Bechara v Bechara141 where his Honour stated:

In relation to the authorities that refer to cases in which the words ‘without more on his or her part’ are used, I dealt with the current view in Newman v Brinkgreve; Estate of Floris Verzijden [2013] NSWSC 371 at [94]–[98]. At [95], I wrote: In my view, the use of the words ‘without more on her, or his, part’, where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to ‘state the testamentary intentions of the deceased person’, and then determine whether the court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question. Since then, the same view has been followed by me in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [260], by Lindsay J in Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [28] and by Stevenson J in In the Estate of the Late Ronald Robert Irvine; Evans v Gibbs [2015] NSWSC 432 at [27]–[29].

Similar sentiments have been expressed by McMillan J of the Victorian Supreme Court in a series of decisions.142

General considerations applicable to third requirement Determining the requisite intention 5.21 It is obvious that documents containing written instructions for a will, or a draft of a will, may lead the court to find that the testator’s actual intention was that a formal document was prepared and executed [page 143] so that the testator did not have the intention that the instruction or draft would operate as his or her ‘will’.143 Similarly, a document which is merely precatory in nature, such as one where there is an expression of ‘my wishes’ or ‘my request’ will also not normally be admitted under the judicial dispensing power, as it lacks the requisite intent that it be a will of the deceased.144 An illustrative case, among many, is Re Application of Brown; Estate of Springfield.145 There the deceased entered hospital with a serious illness and shortly before his death was advised by a friend to make a will,

which suggestion was resisted. Ultimately, however, on the deceased’s instructions, the friend purchased a law stationer’s will form, and took it to the deceased prior to his death. After some delay, it appeared that the deceased instructed the friend as to the disposition of his property, which instructions were written down by the friend on the document, with the intention that they later be transferred to the will form. This was later done by the friend, but in the meantime, the deceased died. Thus, the will was not in fact written out by the deceased; nor was it shown to, or read over to him. The document was neither signed nor witnessed. An attempt to admit the document to probate under the dispensing power failed, Powell J holding quite clearly that the evidence was not sufficient to satisfy the court that the deceased intended the document to constitute his will. As stated by his Honour: It will, I think, be apparent from what I have said — and, as well, from the declarations which I have already made in similar matters which have been referred to me since my appointment as Probate Judge — that, in cases where the subject document is either wholly written out, or, being in a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however, the subject document was not seen or read, or written, or in some way authenticated, or even if seen, or read, by the relevant deceased, was, in truth, no more than ‘instructions’, or a note of ‘instructions’, for a will (see, eg, In Estate of Allan (Needham AJ, 24 September 1990, unreported); Cloonan v Allingham (Needham AJ, 14 December 1990, unreported) I would, I believe find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.146

The document therefore was to be regarded as no more than notes by a friend as to his understanding of what the deceased wished to be included in a formal will which was to be later executed, but could not because of the deceased’s death. [page 144]

Thus, the legal test is that the document, without more, is intended to constitute the deceased’s will. As stated by Austin J in Re Polyak Estate; Amy v Permanent Trustee,147 a distinction is to be made: … between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will.

The test was satisfied in this case, where the testator had made a will in 1982 benefiting relatives in the United States but after becoming ill and entering a nursing home, he formed the intention to make a new will to benefit those who had more recently looked after him. He typed out a document to that effect, but neglected to get it formally witnessed, despite advice to that effect. Austin J held nevertheless that the intention was that the document was intended to operate as a will; in the testator’s mind, it was not a draft will, but an active will. A similar decision, among others, may be found in the New South Wales Court of Appeal case of Hatsatouris v Hatsatouris,148 and the more recent decision of Gray J of the South Australian Supreme Court in Re Estate of TLB.149 On the other hand, there are many decisions which have failed the legal test as not satisfying the immediacy of intention. Most have concerned draft wills or instructions for a will.150

Specific factors in ascertaining requisite intention 5.22 Courts have taken into account, in a general assessment of the intention criteria, some specific circumstances which may point to the finality or immediacy of that intention or otherwise.

Awareness of formal requirements for wills 5.23 As stated by her Honour Hollingworth J in Re Estate of Brock; Chambers v Dowker: The court may take into account the existence of a prior solicitor-drawn will when examining the extent of the failure to comply with formalities. In appropriate circumstances, an inference

may be drawn that the deceased was aware of the formalities required for a will. This may have an effect on whether the court is prepared to accept that the deceased intended the informal document to be his or her will.151

Her Honour instanced the decision of the New South Wales Supreme Court in Estate of Dunn; Anderson v Scrivener,152 where application was [page 145] made to admit an informal document to probate headed ‘Alterations to my Will’. The application was refused, the court accepting evidence that the deceased’s previous three wills had been drawn up by solicitors and the deceased was aware that full formality was necessary to make a valid will. It appeared that the deceased had complained about what his solicitor would charge for making minor amendments to the will. A similar decision may be found in Kedzier v Postle,153 where an unwitnessed codicil was also not admitted, the deceased being well aware of the witnessing requirement through a distinct pattern of drawing up home-made wills, using a template of a solicitor-drawn will. As her Honour again pointed out,154 conversely, if the testator is not fully familiar with either the nature of a will or the way in which the law operates, the court may more readily infer that the deceased intended the informal document to have legal effect according to its terms on death. As has often been stated,155 it would be a mistake to regard the third element as requiring evidence that the deceased set his or her mind to the legal formalities for will making. More recently the matter was considered by Martin J of the Queensland Supreme Court in Massey v Smith156 where an informed codicil was refused admission, the primary ground being that the testator worked as a legal secretary and probate clerk for 47 years and was thus familiar with the will making process. Habersberger J of the Supreme Court of Victoria also addressed the matter

as follows in Fast v Rockman:157 I accept that a deceased’s awareness of the formalities required for a will may bear on the court’s assessment as to whether he or she intended and a formal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have a legal effect according to its terms after his or her death. Further, if the deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or ‘act of God’ beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate. In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.

[page 146]

Custody of document 5.24 There have been a number of decisions in which the testamentary intention of the deceased, in all circumstances of the case, has been inferred by the manner in which the deceased treated the document which has been used in the application for probate. So in Re Estate of Masters; Hill v Plummer,158 the New South Wales Court of Appeal considered that the handing over of the informal document along with the accompanying words shortly before death159 were important matters, indicating the testator had attached importance to the document and regarded it as capable of affecting what happened to his property on death.160 Location of the document was also an issue in Williams v Public Trustee of New South Wales (No 2),161 where, contrary to the established practice of the deceased, the document did not involve the Public Trustee in either the preparation of the ‘will’ or

delivery of it, after execution to the Public Trustee for safe-keeping. Rather it appeared that the deceased had placed the document in a tin box which contained items of no value or other significance: ‘It is not the sort of place one would keep an important document which would need to be located quickly after one’s death.’162 Probate was refused. Location also played a major part in the decision of Sackville AJA in Re Quartermain Estate; Steggall v Quartermain,163 where the most significant indication of the testator’s intention was that the document was placed in an obvious place and not with other documents so that it could be easily seen and so given effect. The document in this case was admitted to probate. Finally location was a major factor in the recent decision of the New South Wales Court of Appeal in Burge v Burge.164 In upholding the trial judge’s decision not to admit an informal will to probate, the court placed particular emphasis on the fact that the document was found in a location separate from the deceased’s other testamentary documents. This was supported by additional evidence that the deceased was a meticulous person who would on occasion initial or sign documents even though they were apparently not intended to have legal effect.

Deliberate attempt to avoid formalities 5.25 As her Honour Hollingworth J again pointed out in Re Estate of Brock; Chambers v Dowker,165 the dispensing power is designed primarily to deal with the cases of inadvertence. Where, therefore, there is a conscious decision by the testator, being duly aware of the formal requirements, but declining nevertheless to follow them (including a reluctance to do so), it is unlikely that the court will admit the document [page 147] to probate. Her Honour instanced the case of Re Estate of McNamara,166

where the deceased completed all sections of a stationer’s will form, except the execution clause. There was no signature and no witnessing. According to the evidence, the reason for this omission was that the deceased was reluctant to have a nurse, who was present at the time of the completion of the will form, witness his signature. The testator died some six weeks after completion of the will form, the document remaining in a drawer beside the deceased’s bedside. The court declined to admit the document to probate.167

Delay 5.26 Significant delay between the time of the creation of the original document and the deceased’s death may also be a factor in ascertaining the relevant intention of the deceased in respect to the document. This may not be particularly pertinent in respect to draft wills. As White J observed in Re Estate of Parkinson (decd): [T]he law books are full of cases where intending testators have shown irresolution and changed their minds at the last minute or altered their wills by interlineating in the course of execution. It does not require much professional or bench experience to realise that intending testators do change their minds between the time of ‘finally’ giving instructions and the time of ultimate execution of their wills.168

That dicta was applied by Gray J in Re Estate of Schartzkopff,169 where his Honour declined to admit a draft will to probate in circumstances where the deceased had not seen or approved the draft at the time of his death. More than two months had passed between the draft being ready for execution and death. There was some suggestion that the delay was caused by financial constraints, but Gray J stated that the delay may well have occurred for a number of reasons, including a wish by the deceased to consider further terms of the draft. There was thus sufficient doubt as to whether the draft accurately reflected the testamentary intention of the deceased.170 Similarly, in Bechara v Bechara171 it was found as a matter of fact that there were a number of occasions when the deceased was encouraged to sign an unsigned ‘will’ but he chose not to do so, and it was not the case that throughout this period (some two years) he suffered from ill-health such that

he was prevented from signing the document if he had chosen to do so. No plausible reason for not signing had been advanced on the evidence. So too in Robinson v Jones172 where there was an opportunity of signing an original copy of the proposed will. In that case, the deceased committed suicide and his death was therefore not unexpected or sudden, and therefore did not unexpectedly prevent him from signing. [page 148]

Timing of intention 5.27 While the normal time for assessing the testator’s intention is the time of making the will,173 there are authorities to the effect that both acts and statements made after the making or publication of the document may be admitted to show the necessary intent.174 Thus in Re Estate of Masters (decd); Hill v Plummer,175 Priestly JA noted that the trial judge had found that the testator had no testamentary intent at the time he wrote the document, but later made it clear by his physical dealing with the document, accompanied by a statement, that he then had the requisite intent. His Honour held that sufficient.176 Some problems are caused in this respect by so-called stop-gap wills. In Permanent Trustee Co Ltd v Milton,177 the testator made a properly executed will in 1962 and in 1963 wrote two letters to her solicitor purporting to change the beneficiaries. She died some 30 years later, not having formalised the arrangements. Hodgson J held that an informal testamentary document may be intended to take effect as a stop-gap until a formal will is made. If the deceased had died without the opportunity to make a formal will then the document could be admitted to probate, but in the circumstances, some 30 years later, the intention was not that the document should constitute an alteration to the will. There was a successful application, however, in Leslie v McDowell; Estate of Cummins,178 where the testator in 1994 made an

informal document, altering her previous will. It was left in an envelope marked as her last will. The next day she went for a flight over Antarctica. An argument that the document was intended only to be a stop-gap will during her trip to Antarctica was rejected, as there was evidence that since that trip she had lived for four years, the document was altered after the trip and was found in a prominent position among other documents dealing with proposed funeral arrangements. It was accordingly admitted to probate. This decision was followed by Gray J of the Supreme Court of South Australia in Estate of Pearson179 on similar facts. One other matter raised in obiter in Permanent Trustee Co Ltd v Milton,180 was the suggestion that an informal document could be revoked without any actual alteration to the document by a clearly manifested change of intention. This suggestion was rejected by Powell JA in Hatsatouris v Hatsatouris,181 who stated: … once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events — unless they fall within the provisions of s 17 of the Act — to deprive the relevant document of its status as a testamentary instrument. To the extent to

[page 149] which the judgment of Hodgson J (as he then was) in Permanent Trustee Co Ltd v Milton suggests otherwise, I disagree.

The preferred view is that if the intention has been established, subsequent events or statements, which may indicate a change of mind, may only be considered if they satisfy the statutory test for revocation or alterations of wills, as to which see Chapter 6.

Admissibility of evidence 5.28 All jurisdictions except South Australia have specific provisions in respect to the admissibility of extrinsic evidence to determine the intention issue. Thus, s 8(3) of the Succession Act 2006 (NSW) provides that in forming

its view as to the matters required by the legislation the court: … may, in addition to the document … have regard to: (a) any evidence relating to the manner in which the document or part was executed; and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.182

Whether these provisions extend the admissibility of such evidence at common law is doubtful, in that there are authorities to the effect that statements made by the deceased are admissible as to intentions in relation to a document in any event.183 Given the width of the statutory language, there appears to be no limitation placed on the court as to matters to which it may have recourse in deciding the intention issue. Thus, in respect to statements made by the deceased, they are admissible, even if they would not have been at common law. Thus, hearsay statements or others contrary to the general law of evidence may be admitted and considered. The only exception appears to be evidence which is illegally obtained, which is still inadmissible.184

Burden of proof 5.29 The original South Australian legislation in 1975 required the court to be satisfied beyond reasonable doubt as to the requirements. That standard was changed to the civil standard in 1994. In the meantime the original legislation in Tasmania, Western Australia and the Northern Territory also adopted the beyond reasonable doubt standard. Vines185 points out that that standard was expressly equated with the criminal standard by a number of authorities. The other jurisdictions commenced with the civil standard: proof on the balance of probabilities. Apart from Tasmania [page 150] where, despite substantial amendment to its Wills Act in 2008, the criminal standard of beyond reasonable doubt was nevertheless retained,186 all the other jurisdictions now adopt the civil standard.187

There were two fundamental reasons for this change from the criminal to the civil standard. First, and most obvious, is the fact that the reforming nature of legislation would possibly be undermined by a more stringent standard of proof other than the civil standard.188 Second, there was evidence that, even in uncontested cases, the delegation of the matter for determination by the Registrar of the Supreme Court was not possible because of the higher standard.189 There are orthodox judicial statements to the effect that there is no third standard of proof, somewhere between the civil and criminal standard.190 Nonetheless, there is also some judicial support for a Briginshaw onus viz: … the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the [court].191

In Re Estate of Brock; Chambers v Dowker,192 Hollingworth J stated that because of the nature of probate and the consequence of any finding that may be made and the inability to hear evidence from the deceased as to his or her actual intentions, the court needs to evaluate the evidence with great care. There is a more emphatic endorsement of that approach by Gray J in Re Estate of Schartzkopff,193 where his Honour referred to Langbein’s seminal article on the power,194 stating that the standard of proof is higher than the mere preponderance standard and speaks of a ‘clear and convincing standard’, which he equated with the Briginshaw approach.195 His Honour, after stating the Briginshaw ‘ test’, continued as follows:196 A finding that a court is satisfied will result in a final distribution of the estate in accordance with the document sought to be propounded. This may have significant consequences for named beneficiaries. It is because of the nature of probate, and the consequences of any findings that may be made, that the court should apply what has been described as ‘the Briginshaw

[page 151] onus’ — the greater the seriousness, gravity or magnitude of the issue to be proved, the stricter

the proof required.197

On the other hand, it is worthwhile setting out the statement of Kirby P in Re Estate of Masters (decd); Hill v Plummer:198 Often it will be difficult to tell into which category a propounded document falls. Section 18A(2) of the Act permits extrinsic evidence to be given which may sometimes help. But in this case as in most, that evidence will contain elements pointing in conflicting directions. The conflict will quite often reflect the not unfamiliar ambivalence of the deceased, when contemplating death. The ambivalence is born of the tension between psychological disinclination of many perfectly rational human beings to contemplate their own death (especially perhaps when it is impending) and the rational appreciation of the same persons of the need to provide for the disposition of property when the unwanted occurs. Section 18A(1) of the Act permits courts to recognise this ambivalence.

Disqualification of witnesses The rule 5.30 Section 15 of the Wills Act 1837 (UK) originally provided that if a person who takes a gift under the will also acts as a witness then, although the will is valid, the gift in favour of the witness/beneficiary is void. A gift to the spouse of the attesting witness is also void. In Victoria, South Australia, Western Australia and the Australian Capital Territory, the rule has been abolished. The Victorian provision, for example, provides as follows: ‘A person who witnesses a will or his or her spouse, at the time the will is witnessed, is not disqualified from taking a benefit under the will.’199 In the other jurisdictions, it has been considerably modified. To appreciate the effect of the statutory modifications, a brief examination of the original rule follows.

Construction of rule 5.31 The section had been construed narrowly by the courts,200 the following being the major principles established by the authorities: (1) The time for establishing whether the rule applies is the actual time of attestation. Accordingly, it was held in Thorpe v Bestwick201 that where the testator made a will leaving a

gift to an unmarried woman, the subsequent marriage of that woman to one of the attesting witnesses [page 152] did not have the effect of voiding the gift in the beneficiary’s favour. To disqualify a spouse, therefore, it must be shown that the spouse was married to the witness at the time of witnessing. Needham J applied similar reasoning in Burns Philp Trustee Co Ltd v Elliott202 where a testatrix by her will gave her estate to her brother, with a proviso that should he predecease her, the estate should devolve in the same manner as if he had survived her and died immediately after her death. In the event the brother did predecease the testatrix, leaving by will gifts to the persons who had attested the testatrix’s will. The attesting witnesses were not debarred from taking the benefits.203 (2) A gift to a witness (or spouse) as a trustee is not affected by the provision. The section requires a ‘beneficial’ disposition, and a trustee takes no benefit under the will. Thus in Re Ray204 a gift to an attesting witness in her capacity as abbess of a convent was held valid, the gift not being a beneficial legacy but rather to be held in trust for the purposes of the convent. (3) Except originally in Queensland,205 the section applied to what are commonly known as solicitor’s charging clauses. These are clauses whereby solicitors, who are also appointed executors, may make a proper professional charge for the work done as executor. As such they confer a benefit upon the solicitor, and the clause was void if the solicitor was also an attesting witness,206 but not if an employee or a partner of that solicitor attests.207 (4) The only gift avoided by the provision is a gift by the same testamentary instrument that is attested. Thus, if a beneficiary attests the will and the testator subsequently makes a codicil to that will, which the beneficiary does not attest, the will is said to be republished by the codicil, and the gift to the beneficiary is valid. The beneficiary takes under the codicil.208

More than two witnesses 5.32 In Estate of Bravda,209 the testator, by his will, left the whole of his estate to his two daughters. Two independent witnesses signed the will, but unfortunately the two daughters both then signed the will ‘to make it stronger’. It was held that there was nothing in the evidence sufficient to rebut the inference that the daughters’ signatures were as witnesses, and therefore the gifts to the daughters were void under the [page 153]

witness/beneficiary rule. The result was condemned by the court as ‘monstrously unfair’.210 Thus, if there were two independent witnesses but there was also an additional signature by a beneficiary, for the gift to be valid it had to be shown that the signature of the beneficiary was not for the purposes of witnessing the will but for some other purpose. Evidence may have been available, for example, to show that the signature of the beneficiary was added simply for the purposes of self-identification or perhaps for general approval of the terms of the will. Much depended upon this evidence, but there is a presumption, which had to be rebutted, that a person signing a will does so as a witness.211

Current position in New South Wales, Queensland, Tasmania and the Northern Territory 5.33 The legislation in all these jurisdictions is almost identical.212 The effect of the legislation is as follows: (1) The primary rule remains; that is, a beneficial disposition to an interested witness (that is, an attesting witness) or a person claiming under that witness is void. (2) The disqualification in respect to spouses of the interested witness has been removed. (3) A beneficial disposition for the purpose of the rule does not include a charge for the payment of reasonable remuneration ‘to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator’s estate’. Thus solicitors’ charging clauses, as discussed above in 5.31, no longer attract the rule. (4) A beneficial disposition is not void if at least two of the people who attested the execution of the will are not interested, but rather, independent witnesses. The decision in Estate of Bravda,213 discussed above in 5.32, has thus been effectively abrogated. (5) The rule will not apply if all the persons who would benefit directly from the avoidance of the disposition consent in writing to the actual distribution under the will. Capacity to consent is required here. This provision is designed to allow the gift to take effect, despite the beneficiary or beneficiaries being a witness, if those who would otherwise benefit from the exclusion of the interested witness all agree. (6) In the absence of such agreement, the Supreme Court in the four jurisdictions is given power under the legislation to declare that the [page 154]

rule is not to apply in the circumstances. In general, the court must be satisfied that the testator knew and approved of the disposition and that it was given or made freely and voluntarily by the testator and that it was made in the absence of fraud, duress or undue influence.

The function of the Supreme Court in exercising the power discussed in point 6 above, was first considered by Young J in the New South Wales decision of Miller v Miller.214 There the plaintiff beneficiary witnessed the will of the testator. The will had been purchased from a newsagency in Cairns and filled in on a bonnet of a car, prior to the testator’s departure to Papua New Guinea to walk the Kokoda Track. If the gift to the plaintiff was to be held void, then the testator’s children would have taken on intestacy. The children refused consent, under the principles discussed in point 5, and the court was then required to consider whether the rule should be waived. After an interesting discussion of the history of the interested witness rule, and the background to the legislation, his Honour stated (at 56) that in consideration of the rule and the statutory power: One starts with suspicion. That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness and that the gift was a free and voluntary one.

On the factual circumstances, the suspicion here was low, and easily dispelled by compelling evidence of knowledge and approval. The court is required to be vigilant and zealous in the scrutiny of the evidence, but should also be sensible in doing so. Similar sentiments were expressed by Campbell J in Tonkiss v Graham,215 who also pointed out that while there are in fact two matters which need to be satisfied under the legislation, viz, ‘knowledge and approval’ and ‘freely and voluntarily’, in practice there is a significant overlap between evidence which proves the first and evidence which proves the second. According to his Honour, the practical way of allaying suspicion is to place before the court the ‘full story of giving instructions for the will, and execution of the will’.216 More recently, the Tasmanian Supreme Court in Bisdee v Smith 217 agreed that the principles relating to suspicious circumstances in the execution of wills (as to which see Chapter 3, 3.15,

above) were also applicable in consideration of the statutory power to waive the interested witness rule.

Disqualification of interpreters in Queensland 5.34 In Queensland, though in no other state, a similar provision to that applying to witnesses/beneficiaries also applies to interpreters. Section 12 of the Succession Act 1981 (Qld) provides that where in connection with the making of a will the services of an interpreter are used to interpret [page 155] or translate from or to a language understood by the testator, any disposition to that interpreter (or the spouse of the interpreter) is void. Similar exceptions are made as to those applying to interested witnesses.

Incorporation by reference Introduction 5.35 It is possible for a testator to incorporate into a properly executed will documents that have not been properly executed. If the conditions for incorporation are satisfied, then the document becomes part of the will and is accordingly admitted to probate. The conditions for incorporation are: (1) the document to be incorporated must be in existence at the date of the will; (2) the document must be referred to in the will as being in existence at the date of the will; and (3) the will must make such reference to the document so that it can be clearly identified.

These conditions require strict compliance, as otherwise a testator could make a skeleton will that could be ‘fleshed out’, as it were, without the formalities being observed.218 Each condition will be considered in turn.

Existence of document at date of execution of will

5.36 This requirement is self-evident. A future document cannot be validly incorporated by reference, and the onus of proof lies on those seeking to incorporate.219 It should be noted, however, that where a document comes into existence after the date of the will, but before a codicil confirming the will, this requirement is satisfied because the will is regarded as having been re-executed or republished at the date of execution of the codicil: see Chapter 7. For this to apply the other two conditions must be satisfied.220

Document referred to as already in existence 5.37 The second condition requires that the will itself refers to the document as already being in existence when the will is executed. This must be apparent from the face of the will and may not be shown by extrinsic evidence.221 Thus in University College of North Wales v Taylor222 the testator left a gift conditional on compliance with ‘any memorandum found with my papers’. The expression used could have meant a future document, and no incorporation was possible. Similar phrases, such as [page 156] ‘I direct my trustees to give to such of my friends as I may designate in a book or memorandum that will be found with this will’;223 ‘as shall be stated by me in a sealed letter in my own handwriting and addressed to my trustee’;224 and ‘friends to be named in a letter’225 have failed the incorporation requirement as being references to future documents. Furthermore, even if the will does refer to an existing document, but reserves the right to substitute or modify that document, incorporation will not be possible, even of the existing document.226

Document identified in will 5.38

This condition requires that the document be sufficiently described in

the will to enable it to be identified, so that if the description is so vague it is incapable of being applied to any particular document, it will not be adequate.227 In Re Williams Will,228 for example, the testator executed a valid will, but left a number of clauses, intended to contain dispositions, completely blank. There was, however, a document in existence that contained instructions as to how to fill in the blank clauses but no reference was made to that document in the will itself. An attempted incorporation of that document failed.

Use of incorporation 5.39 Incorporation by reference may have the effect of validating prior unattested testamentary dispositions. That is, if the requirements for incorporation are satisfied, a will that does not satisfy the formal requirements may be incorporated in a later testamentary instrument, such as a codicil, which does satisfy the formalities. In Allen v Maddock229 the testatrix, in 1851, drew up a paper as the ‘last Will and Testament of me, Anne Foot, of Bath, which I make and publish for all my worldly substance’. The paper appointed executors and left several legacies, but was witnessed by only one person. In 1856, on her deathbed, she duly executed a codicil, heading it, ‘This is a codicil of my last Will and Testament’ and leaving a disposition to her servant. The codicil was properly executed and attested. The court held that the conditions of incorporation were satisfied with the effect that the 1851 paper was duly incorporated by reference into the later codicil. Apart from this, the doctrine may be useful where there are detailed provisions that are too bulky to be conveniently included in a will, but care [page 157] should be taken given the interpretation of the conditions by the courts. It is

best, if possible, not to have to rely on the doctrine but simply to put all the matters in the one document, which is then duly executed and attested.

Privileged wills Introduction 5.40 The law relating to privileged wills derives from Roman law, which, though it prescribed strict formalities for the execution of wills, allowed soldiers and sailors, while on actual military service, the privilege of making informal wills.230 That privilege eventually became part of the law of England and was first given statutory recognition in 1677.231 It now forms part of the wills legislation in only two jursidictions in Australia, South Australia and the Australian Capital Territory,232 it having been abolished in the others. Generally, the effect of the privilege is that a testator may make an informal will. Such a will may be completely oral, or it may be written. If written, then there is no need for a signature or witnessing. Naturally, privileged wills often create problems regarding proof and construction although the approach of the courts has been liberal in giving effect to such testamentary wishes. It should also be noted that while privileged wills do not require formalities, it is still necessary to show testamentary intention. While privileged wills are based on Roman law, and the civil law which followed that, a major difference is that the will of a privileged testator remains effective for an unlimited period. It might be thought that the rationale for such wills (see 5.44 below) would demand that when the time in which such wills may be made has elapsed, the privilege should no longer apply. This is indeed the case in civil jurisdictions, but it is not the case in the two Australian jurisdictions, where a privileged will continues until death, unless altered or revoked in the meantime. Lang notes two cases in which privileged wills were admitted to probate when the testators died 42 years and 22 years, respectively, after having made the will.233

Who is a privileged testator? Statutory definition of privileged testator 5.41

The Wills Act 1936 (SA) s 11, simply states as follows:

Any person who is on active service as a member of a military, naval or air force of the Commonwealth may dispose of his or her real and personal property by nuncupative will.

[page 158] In contrast, the Australian Capital Territory provision is far more detailed. Section 16(6) of the Wills Act 1968 (ACT) provides that the privilege extends to: (a) members of the Defence Force who are in actual armed service; (b) persons employed outside Australia as representatives of organisations rendering philanthropic, welfare or medical service to members of the Defence Force; (c) prisoners of war or persons interned in a country under the sovereignty, or in the occupation, of the enemy or in a neutral country who became prisoners of war or were so interned as a result of war or warlike operations and were, immediately before their capture or internment, persons included in a class of persons specified in paragraphs (a) or (b).

Both thus require, for the privilege to apply, first, that the person must be on ‘active service’ or ‘actual armed’ services or persons in the position of category (b) and (c) in the Australian Capital Territory formulation.

Meaning of actual military service 5.42 Both statutes require that the person was in actual military service at the time the will was made. This is again a difficult question. May it be extended, for example, to ‘soldiers’ as defined above, awaiting embarkation, or as prisoners of war, or simply as members of a peace-keeping force? It was originally thought that in order to be engaged in actual military service the soldier had to be either at or close to the place where the fighting was going on. Associated with this principle was another: a soldier on actual

military service was in the same position as a Roman soldier in expeditione. Such a soldier was permitted to make a privileged will on the basis that he was unable to obtain assistance to make a formal will. Both principles have now been discredited, the judgment of Denning LJ in Re Wingham234 authoritatively rejecting the Roman analogy in the following terms (at 195): Sitting in this court I am free to say that that test should no longer be applied. The words of our statute are in plain English: ‘in actual military service’. I find them easier to understand and to apply than the Latin: ‘in expeditione’. If I were to inquire into the Roman law, I could perhaps after some research say how Roman law would have dealt with its soldiers on Hadrian’s wall or in a camp at Chester, but I cannot say how it would have dealt with an airman in Saskatchewan, who is only a day’s flying from the enemy. Nor can anyone else. This supposed throw-back to Roman law has confused this branch of the law too long. It is time to get back to the statute.

The test now appears to be that a soldier is on actual military service if he or she is serving with the armed forces in connection with military operations that are or have been taking place or are believed to be imminent. As a consequence, during peacetime, soldiers in barracks do not have the privilege, but if military operations are imminent, then soldiers on embarkation or mobilisation and in training, are privileged. After actual [page 159] hostilities cease, the privilege may be extended to include soldiers who are on duty as members of the occupation forces, or who are recovering from injuries or are prisoners of war.235 A soldier can be on actual military service even if no war is declared, and the actual activities are directed to support civil power. In Will of Anderson236 an Australian soldier was killed when part of an Australian contingent was made available for the assistance of the government of the Federation of Malaya to suppress terrorism. His privileged will was upheld, Myers J holding (at 335): In the present case there was no state of war and it is difficult to see how there could have been, for there was no nation or state with which a war could have been proclaimed to exist, but in all

other respects there was no difference between the situation of a member of this force and that of a member of any military force in time of war. In my opinion the deceased was in actual military service and it would be unreasonable to hold otherwise.

Moreover, the civil insurrection may be in one’s own country, such as in Re Jones,237 where a corporal of the British Parachute Regiment was shot while on patrol in Northern Ireland. The court held that the fact that the ‘enemy’ was not a uniformed force engaged in regular warfare, or even an insurgent force organised upon conventional military lines, ‘but rather a conjunction of clandestine assassins and arsonists’238 did not affect the question as to whether the soldier was engaged in actual military service. It was held that the corporal was entitled to the privilege.

Mental element 5.43 While privileged wills do not require formality, it is still necessary to show that the written or oral statements made by the deceased were made with the intention to operate as a will. It is not necessary, however, to establish that the testator knew that he or she was making a will or that he or she had power to make a will — what is essential is that there must be a deliberate intention to give expression to his or her wishes as to the disposal of property after death.239 Thus, in Re Lowe,240 the oral statement by a soldier to his commanding officer, ‘I want to leave everything to Miss Tipton’ was held to be a sufficient expression of intention, the judge holding that while it was clear that Lowe did not believe that he was making a will, such a belief was not necessary. A similar decision was reached in Re Stable241 where the operative words used by the testator were, ‘If anything happens to me, and I stop a bullet, everything of mine [page 160] will be yours’. On the same principle, passages in letters and on postcards have been held to constitute privileged wills.242

Care should be taken in relation to statements of future intention. The deceased may make a statement, for example, which indicates that at some time in the future a will is to be made, or may state what he or she believes will happen under the rules relating to intestacy: in both cases, there is no animus testandi.243 Similarly, statements made in the course of casual conversations, such as occurred in Estate of Knibbs (see 3.9 above),244 will not be admitted as a privileged will. In that case, a barman on a ship made the following statement to a fellow employee at the closing time of the bar: ‘If anything ever happens to me, Iris will get everything I have got.’ The statement was not admitted as a privileged will.

Rationale 5.44 The justifications that have been put forward in the past for the concept of privileged wills are various. They include the relatively low level of education of privileged testators, the unavailability of consultation and professional advice to soldiers, especially in combat, the riskiness of warfare and sea travel and the psychological benefits to such testators in time of war and danger. Be that as it may, the concept has been almost universally criticised. The New South Wales Law Reform Commission, in its examination of privileged wills, made the following comments on these justifications, which are worth quoting in full: Many of these reasons, if ever fully justified, are quite inappropriate to modern conditions of warfare, service in defence or merchant marine forces, or sea travel. The concept of a special class of persons who alone are exposed to the dangers of active service is no longer true. Many civilians are placed in positions that would call forth one or more of the justifications enumerate in the previous paragraph, and not necessarily in time of war (for example, policemen, firefighters). Sea travel in peacetime is relatively free of danger. The general level of literacy and education in the community as a whole is markedly higher than in 1677. Will-making is nowadays regarded as a relatively simple activity and the ready availability of printed will forms attests to a widespread belief in the community that there is no necessary need for skilled advice … In any event the modern rules governing succession of persons who died intestate when coupled with the Family Provision Act 1982 tend to ensure that the failure to make or revoke a will does not necessarily defeat the proper moral and social obligations of deceased persons.245

The approach of the Commission was to abolish the concept of privileged wills altogether, and this was enacted in legislation in 1989. Victoria [page 161] likewise abolished the concept in 1998 followed by the Northern Territory in 2000, Queensland in 2006, Western Australia in 2007 and Tasmania in 2008. The other two jurisdictions have yet to adopt this reform, but given that all now have judicial dispensing powers, it is suggested that an informal will should be judged under that power, rather than creating a separate category of privileged testators. Of course, if such a reform should occur, purely oral wills could never be admitted to probate, as the judicial dispensing powers require as a precondition to the exercise of the court’s jurisdiction, the existence of a document.

International wills 5.45 Australia’s impending accession to the International Institute for Unification of Private Law (UNIDROIT) — Convention on Providing a Uniform Law on the Form of an International Will has meant that many jurisdictions have now either passed or proposed legislation to have effect when Australia accedes to the Convention.246 The object of acceding to the Convention is to enable wills made in Australia to be recognised as valid in other nations that have adopted the Convention. These include the United Kingdom, Canada and the United States. The Convention provides for the validity of a will to be accepted if it is made with the prescribed formality requirements. These exhibit the same core characteristics as existing legislative requirements, as discussed above in 5.3–5.11.

1.

2.

3. 4. 5. 6. 7. 8. 9. 10.

11. 12.

13. 14. 15. 16. 17.

18. 19.

20. 21. 22. 23. 24.

Succession Act 2006 (NSW) s 6; Wills Act 1997 (Vic) s 7; Succession Act 1981 (Qld) s 10; Wills Act 1936 (SA) s 8; Wills Act 1970 (WA) s 8; Wills Act 2008 (Tas) s 10; Wills Act (NT) s 8; Wills Act 1968 (ACT) s 9. See Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv LR 489; ‘The Crumbling of the Wills Act: Australians Point the Way’ (1979) 65 Am Bar Assoc J 1192; ‘Excusing Harmless Errors in the Execution of Wills; A Report on Australia’s Tranquil Revolution in Probate Law’ (1987) 87 Columbia LR 1; Nelson and Starck, ‘Formalities and Formalism: A Critical Look at the Execution of Wills’ (1979) 6 Pepperdine LR 331; Ormiston, ‘Formalities and Wills: A Plea for Caution’ (1980) 54 ALJ 451; Miller, ‘Substantial Compliance and the Execution of Wills’ (1987) 36 ICLQ 559; Lang, ‘Formality v Intention — Wills in an Australian Supermarket’ (1985) 15 MULR 82. Ibid at 87–9. Ibid at 88. For the history of the formal requirements, see Hardingham, Neave and Ford, pp 23–6. See Mellows, The Law of Succession, 5th ed, Butterworths, London, 1993, p 60. [1972] 3 All ER 729. [1946] P 171. Mellows, op cit, pp 59–60. Interpretation Act 1987 (NSW) s 21; Interpretation of Legislation Act 1984 (Vic) s 38; Acts Interpretation Act 1954 (Qld) s 32; Acts Interpretation Act 1915 (SA) s 4; Interpretation Act 1984 (WA) s 6; Acts Interpretation Act 1931 (Tas) s 24(b); Legislation Act 2001 (ACT) Dictionary s 17; Interpretation Act 1978 (NT) s 26. In the Goods of Adams (1872) LR 2 P D 367. Kelly v Charmer (1856) 23 Beav 195; 53 ER 76. The sums bequeathed in that case were represented in letters using a jeweller’s private code. If a foreign language is used, authenticated translation is required: Re Berger [1989] 1 All ER 591; Re Kleinsang (1925) 28 SR (NSW) 455. In the Goods of Wooton (1874) 3 P & D 159. (1926) 43 TLR 71. (1988) 53 SASR 221. The will was admitted to probate under the judicial dispensing power contained in s 12(2) of the Wills Act 1936 (SA), as there was only one witness. This power is discussed in 5.17 below. In Estate of Harris, noted in [1948] Can Bar Rev 1242. A holograph will is a will written in the testator’s own writing and in some civil legal systems, but not in Australia, may be admitted to probate without further formality. [1934] VLR 318 at 320. Re Male [1934] VLR 318. But a mark made by accident, as where the testator’s arm moved across the document, cannot amount to a signature, as the testator does not intend it as such: Dodd v Lang (unreported, SC(NSW), 20 July 1989). In Estate of Finn (1935) 105 LJP 36. In Goods of Jenkins (1863) 3 Sw & Tr 93; 164 ER 1208. Re Sister Albinos [1924] NZLR 880; In Goods of Glover (1847) 5 Notes of Cases 553. In Estate of Cook [1960] 1 All ER 689. In Estate of Theakston (1956) 74 WN (NSW) 113.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

[1948] P 222. [1972] 3 All ER 729. Latimer, ‘Signatures, Squiggles and Electronic Signatures’ (2011) Law Society Journal 62 at 64. See, for example, Electronic Transactions Act 1999 (Cth). In Goods of Clark (1839) 2 Curt 329; 163 ER 428. In Goods of Bailey (1838) 1 Curt 914; 163 ER 316. See footnote 1, this chapter, for the legislation. Wills Amendment Act 1852 (UK) s 1. But later amended in all jurisdictions and in the United Kingdom. See Hardingham, Neave and Ford, p 39. The terminology used is ‘on the face of the will or otherwise’. Wills Act 1997 (Vic) s 7(1)(b). Succession Act 1981 (Qld) s 10(6); Succession Act 2006 (NSW) s 6(2); Wills Act 2000 (NT) s 8(3); Wills Act 2008 (Tas) s 58(2). [1992] 3 All ER 556. [1995] 2 All ER 492. Estate of Mann [1945] P 146. Estate of Mann [1945] P 146. See also Re Will of Curry [1945] 46 SR (NSW) 158. As In the Estate of Bean [1944] P 83, and see Re Beadle [1974] 1 All ER 493. Cf Re Petchell (1945) 46 WALR 62. In Goods of Tiernan [1942] IR 757 at 580. [1969] 2 All ER 108. In Goods of Davies (1850) 2 Rob 577; 165 ER 1419. Hudson v Parker (1844) 1 Rob Ed 14 at 24; 163 ER 948. In Estate of Gibson [1949] P 434. There is a statutory bar in New South Wales (Succession Act 2006 s 9), Victoria (Wills Act 1997 s 10), Queensland (Succession Act 1981 s 10), Tasmania (Wills Act 2008 s 11) and the Northern Territory (Wills Act s 11). In the Will of Morgan [1950] VLR 335. Cf Couser v Couser [1996] 3 All ER 256 although that case was decided under English legislation, which has modified the traditional position. In Will of Wagg (1933) 50 WN (Pt 1) (NSW) 226. Re Beadle [1974] 1 All ER 493. Re Bercovitz [1961] 2 All ER 481 at 552; Re Lucas [1966] VR 267. For example, Succession Act 2006 (NSW) s 7; Wills Act 1997 (Vic) s 8; Succession Act 1981 (Qld) s 10(5); Wills Act (NT) s 9. Casson v Dade (1781) 1 Bro CC 99; 28 ER 1010; Re Callow [1918] VLR 406. A window between the rooms, provided a line of sight is present, would probably suffice: Casson v Dade (1781) 1 Bro CC 99; 28 ER 1010. [1972] 3 All ER 729. See also Wyatt v Berry [1893] P 5; Re Davies [1951] 1 All ER 920; Re Bladen [1952] VLR 82. [1972] 3 All ER 729. Succession Act 2006 (NSW) s 6(3); Wills Act 1997 (Vic) s 7(2); Succession Act 1981 (Qld) s 10(9); Wills Act 1936 (SA) s 8(d); Wills Act 1970 (WA) s 8(d); Wills Act 2008 (Tas) s 8(3); Wills Act 1968 (ACT) s 9(2); Wills Act (NT) s 8(4).

58. 59.

60. 61. 62. 63. 64. 65. 66. 67. 68.

69.

70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81.

82. 83. 84. 85. 86. 87.

[1950] 1 All ER 1009 at 1010 per Hodson J. A more verbose clause, also approved in that case, reads: ‘Signed by the above named testator as his last will in the presence of us, both present at the same time, who, in his presence at his request and in the presence of each other, have hereunto subscribed our names as witnesses.’ Expressed in the principle omnia rite esse acta praesumuntur (presumed that all things have been properly done). For discussion see Re Bladen [1952] VLR 82. In Estate of Musgrove [1927] P 264. The United Kingdom case of Sherrington v Sherrington [2004] All ER 203 and on appeal [2005] All ER 359, contains a useful summation of the presumption. But be careful of parties, even if only coffee is consumed: Re Groffman [1969] 2 All ER 108. Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv LR 489. And see also the literature referred to in footnote 22 of this chapter. [1951] 1 All ER 920 at 922. [1972] 3 All ER 729 at 731. [1972] 3 All ER 729 at 732. The facts and decision in that case are discussed above. The history of the South Australian legislation is traced by Gray J in Re Estate of TLB (2005) 94 SASR 450 at [20]–[28]. Its genesis is in the 28th Report of the South Australian Law Reform Committee to the Attorney-General, Reform of the Law of Intestacies and Wills, 1974. Law Reform Commission New South Wales, Wills — Execution and Revocation, Report 47, 1986, NSW. The legislative history was considered by Kirby P in Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 450–1. Wills Act 1992 (Tas) s 26 (now repealed and replaced). Wills Act 1970 (WA) s 34 (now repealed and replaced). Wills Act 1968 (ACT) s 11. Wills Act 1938 (NT) s 11A (now repealed and replaced). Wills Act 1997 (Vic) s 9. Law Reform Committee Victoria, Reforming the Law of Wills, Victoria, 1994. As noted by Hollingworth J in Re Estate of Brock; Chambers v Dowker [2007] VSC 415 at [16]. Law Reform Commission New South Wales, Uniform Succession Laws: The Law of Wills, Report 85, 1998. Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978. Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv LR 489. Wills executed between 1981 and 1 April 2006 in that jurisdiction are still subject to this provision: Succession Act 1981 (Qld) Endnotes: Part 6. The authorities are discussed in de Groot, ‘Will Execution Formalities — What Constitutes Substantial Compliance?’ (1990) 20 Q Law Soc J 93, and are listed in the judgment of Williams J in Re Nicholls [1996] Qd R 179. [1990] 2 Qd R 501 at 506. [1985] 1 Qd R 513. [1985] 1 Qd R 513 at 515. [1985] 1 Qd R 516. [1990] 2 Qd R 501. But cf Re Mathews [1989] 1 Qd R 300.

88. 89. 90. 91. 92. 93.

94. 95. 96.

97.

98. 99. 100. 101.

102. 103. 104. 105.

[2004] QSC 328, particularly at [16]. Langbein, ‘Excusing Harmless Errors in the Execution of Wills; A Report on Australia’s Tranquil Revolution in Probate Law’ (1987) 87 Columbia LR 1 at 41. (1978) 20 SASR 198 at 202. (1984) 36 SASR 423 at 425. (1994) 33 NSWLR 446. (1994) 33 NSWLR 446 at 452. But note the difference of opinion which may eventuate even given this broad approach. Compare, for example, the majority judgments in the Queensland Court of Appeal decision in Lindsay v McGrath [2015] QCA 206; [2016] 2 Qd R 160; (Gotterson JA and Boddice J) with those of the minority (Philippides JA). As pointed out by Hollingworth J in Re Estate of Brock; Chambers v Dowker [2007] VSC 415 at [21] citing Belcasto v Belcasto [2004] WASC 111 at [6]. For example, if it is made as a joke or for some other non-testamentary purpose. As in Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698; Ryan v Kazacos (2001) 183 ALR 506; Schlesinger v Bowman (2007) 16 Tas R 350; Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223. Owen v Public Trustee of Western Australia [2006] WASC 276; Estate of Clayton (1982) 31 SASR 153 at 157. Jaguers v Downing [2015] VSC 432. See also the discussion in Re Stuckey (2014) 11 ASTLR at [40]–[42] and Re Spencer [2015] 2 Qd R 435. For example, Re Estate of Brock; Chambers v Dowker [2007] VSC 415 per Hollingworth J. (2006) 94 SASR 465. (2006) 94 SASR 465 at 478. See also Re Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 at [17]. For a full discussion of the earlier South Australian cases, see Lang, Langbein and Miller, referenced in footnote 2 of this chapter. An excellent summary of the New South Wales position is given by Mr Justice Powell, ‘Recent Developments in New South Wales in the Law Relating to Wills’ (1993) 67 ALJ 25. More recently, Vines has given a succinct account of the power in ‘The Quality and Proof of Intention in the Dispensing Power Lessons from a Short History’ (2002) 9 APLJ 264. Justice Powell, ‘Recent Developments in New South Wales in the Law Relating to Wills’ (1993) 67 ALJ 25. Lester, ‘Admitting Defective Wills to Probate, Twenty Years Later: New Evidence for the Adoption of the Harmless Error Rule’ (2007) 42 Real Prop, Prob and TR J 577. Langbein, ‘Excusing Harmless Errors in Execution of Wills’ (1987) 87 Columbia LR 1. The Uniform Probate Code in the United States provides in s 5-203 as follows: Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

106. 107. 108. 109.

110. 111. 112. 113. 114.

115. 116. 117.

118.

119. 120. 121. 122. 123. 124. 125.

(8 UCA 146) (1998). According to Lester, op cit at footnote 103, as at 2007 only eight US states have implemented the ‘harmless errors’ rule, and there has been little case law, which is discussed in that article at pp 600–3. The states are Colorado, Hawaii, Michigan, Montana, South Dakota, New Jersey, Utah and Virginia. Orth notes that the drafters of the Code amended in 1990 by the inclusion of s 5-203 were ‘apparently convinced’ by the Australian evidence. He also notes that the Restatement (Third) of Property: Wills and Other Donative Transfers 3.3 (1999) has taken the same position: Orth, ‘Wills Act Formalities: How Much Compliance is Enough?’ (2008) 43 Real Prop, Trust and Es J 73. Of the Canadian provinces, Manitoba has a specific provision (s 23 of the Wills Act) which is similar to the current South Australian provision. For judicial consideration, see Re Pouliot (1984) 30 Man R (2nd) 178. There are similar provisions in Saskatchewan (Wills Act 178 CW 14, s 35(1)) and Quebec (SQ 1991 c 64 Article 714 (1994)). (1986) 40 SASR 305 at 309–10. (1991) 23 NSWLR 535. (1994) 33 NSWLR 446. [2001] NSWCA 408 at [56]. An extremely useful, and detailed statement of the applicable legal principles may also be found in the judgments of Hallen J of the Equity Division of the Supreme Court of New South Wales in Bechara v Bechara [2016] NSWSC 513 at [127]–[130]. See also Campton v Hedges [2016] NSWSC 201. Unlike in the case of privileged wills. See below at 5.40. Succession Act 2006 (NSW) s 3(1). Wills Act (NT) s 10(1). Wills Act 2008 (Tas) s 10(4). Interpretation of Legislation Act 1984 (Vic) s 38; Acts Interpretation Act 1954 (Qld) s 36; Interpretation Act 1984 (WA) s 5; Legislation Act 2001 (ACT) Dictionary, Pt 1; Interpretation Act (NT) ss 10, 19; Acts Interpretation Act 1915 (SA) s 4(1). A matter addressed by Besanko J in In Estate of Torr (2005) 91 SASR 17 at [32]. (2001) 183 ALR 506. Schlesinger v Bowman (2007) 16 Tas R 350; Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272; Aaron v Griffiths [2008] WASC 26; Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223; Re NSW Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501; and Re Application of Tristram [2012] NSWSC 657 where a similar result was reached. Cf, however, Yazbek v Yazbek [2012] NSWSC 594. There is a good review of the authorities by Slattery J in that case. For example, In the Estate of Blakely (decd) (1983) 32 SASR 473; Whiteley v Clune (No 2) (unreported, SC(NSW), Powell J, 13 May 1993); In the Estate of Gwynne (decd) (1988) 48 SASR 209. (1988) 53 SASR 221. (2000) 49 NSWLR 739. Interpretation Act 1987 (NSW) s 21. [2007] NSWSC 481. [2013] QSC 336 (a suicide). (2015) 121 SASR 516. [2015] NSWSC 1107.

126. 127. 128. 129. 130.

131. 132.

133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150.

151. 152. 153. 154. 155. 156.

Ibid at [2]. [2013] QSC 322; (2013) II ASTLR 490. (2005) 91 SASR 17; noted (2005) 79 ALJ 540. (2002) 4 VR 406. Cf Mahlo v Hehir (2011) 4 ASLR 515 where the computer file failed the intention test. While it is not fatal to an application under the dispensing powers that a will is unsigned, Beach J also held that the typed name at the bottom of the document in any event constituted a signature: at [20]–[21]. [2012] NSWSC 594. [2015] NSWSC 1098; (2015) 12 ASTLR 361. The issue of computer wills, generally, are well canvassed by Jasiner, ‘From Written Record to Memory in the Law of Wills’ (1997–1998) 29 Ottawa LR 39. See also Lang, ‘Formality v Intention – Wills in an Australian Supermarket’ (1985) 15 MULR 82 at 90. Per Besanko J in Re Estate of Torr (2005) 91 SASR 17 at [34]. Per Besanko J in Re Estate of Torr (2005) 91 SASR 17 at [34]. (1978) 20 SASR 198 at 205. In Estate of Williams (1984) 36 SASR 423. (1994) 33 NSWLR 446 at 455. (1994) 33 NSWLR 446 at 452. Vines, ‘The Quality and Proof of Intention in the Dispensing Power: Lessons from a Short History’ (2002) 9 APLJ 264 at 270ff. [2001] NSWCA 408 at [56]. [2016] NSWSC 513 at [128]–[129]. Re Rosaro [2013] VSC 531; Robinson v Jones [2015] VSC 222; Jaguers v Downing [2015] VSC 432. See Atherton, ‘Dispensing with Wills Formality in Australia: The Problem of the Draft Will’ (1994) 2 APLJ 68. See, for example, Re Estate of Wilson (1991) 24 NSWLR 334. (1991) 23 NSWLR 535. (1991) 23 NSWLR 535 at 540. [1999] NSWSC 862 at [4]. [2001] NSWCA 408. (2005) 94 SASR 450. See, for example, Baumanis v Praulin (1980) 25 SASR 423; Estate of Parkinson (decd) (1988) 143 LSJS 336; In Estate of Iasiello (decd) (unreported, SC(Testamentary Causes Jurisdiction), No S4459, 28 March 1994); In the Estate of Mead (decd) (unreported, SC(SA), Williams J, 13 February 1998); Equity Trustees Ltd v Levin [2004] VSC 203; Re Estate of Schartzkopff (2006) 94 SASR 465; Bell v Crewes (2011) 5 ASTLR 298; [2011] NSWSC 1159. [2007] VSC 415 at [34]. [2002] NSWSC 900. [2002] NSWSC 875. [2007] VSC 415 at [37]. See, for example, Re Estate of Johnston (2001) 3 ASTLR 599 at 601 per Slattery J. [2015] QSC 86.

157. [2013] VSC 18 at [112]–[113]. 158. (1994) 33 NSWLR 446 at 453 (per Kirby P) and at 469 (per Priestley JA). 159. ‘This is what I want done, you’re my best friend and this is what is to happen to my estate when I die’: at 465, ibid (per Priestley JA). 160. Cf Kedzier v Postle [2002] NSWSC 875 (no safe-keeping). 161. [2007] NSWSC 974. 162. Ibid, at [85] (per Palmer J). 163. (2009) 2 ASTLR 283. 164. [2015] NSWCA 289. 165. [2007] VSC 415. 166. Unreported, 10 April 1992, BC92011949. 167. See also Re Estate of Sharman; Ex parte Versluis [1999] NSWSC 709. 168. (1988) 143 LSJS 336 at 340. 169. (2006) 94 SASR 465. 170. See also Re Estate of Hines [1999] WASC 111. 171. [2016] NSWSC 513. 172. [2015] VSC 222. 173. In Estate of Kelly (decd) (1983) 32 SASR 413. 174. For example, as in In the Estate of Vauk (decd) (1986) 41 SASR 242. 175. (1994) 33 NSWLR 446. 176. (1994) 33 NSWLR 446 at 469. 177. (1996) 39 NSWLR 330. 178. [2000] NSWSC 727. 179. [2014] SASC 77. See also Re Estate of Wood [2014] NTSC 14. 180. (1996) 39 NSWLR 330. 181. [2001] NSWCA 408 at [59]. 182. See also Wills Act 1997 (Vic) s 9(3); Succession Act 1981 (Qld) s 18(3); Wills Act 1970 (WA) s 32(3); Wills Act 2008 (Tas) s 10(2); Wills Act 1968 (ACT) s 11A(2); Wills Act (NT) s 10(3). 183. See, for example, In Will of Page [1969] 1 NSWLR 471; Vines, ‘The Quality and Proof of Intention in the Dispensing Powers: Lessons from a Short History (2002) 9 APLJ 264 at 277–9; and In the Estate of Slavinskyj (1988) 53 SASR 221 at 226. 184. Ryan v Kazacos (2001) 183 ALR 506. 185. Vines, ‘The Quality and Proof of Intention in the Dispensing Power: Lessons from a Short History’ (2002) 9 APLJ 264 at 280, citing In Estate of Crossley (decd) [1989] WAR 227; James v Burdekin [1990] 3 WAR 298. She also points out (at 279) that the reason for the adoption of the higher standard in South Australia was that the legislation was experimental and there was some nervousness about its introduction. 186. Wills Act 2008 (Tas) s 10(1). 187. Succession Act 2006 (NSW) s 8(2); Wills Act 1999 (Vic) s 9(2); Succession Act 1981 (Qld) s 18(2); Wills Act 1936 (SA) s 12(2); Wills Act 1970 (WA) s 32(2); Wills Act 1968 (ACT) s 11A(1); Wills Act (NT) s 10(2). 188. See Kirby P in Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446 at 452. 189. See Victorian Law Committee, Reforming the Law of Wills, Final Report 1994, p 70.

190. 191. 192. 193. 194. 195. 196. 197. 198. 199.

200. 201. 202. 203. 204. 205.

206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217.

218.

For example, Re Estate of Brock; Chambers v Dowker [2007] VSC 415 at [46] per Hollingworth J. Briginshaw v Briginshaw (1938) 60 CLR 336 at 362–3 per Dixon J. [2007] VSC 415 at [47]. (2006) 94 SASR 465. Professor Langbein, ‘Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law’ (1987) 87 Columbia Law Review 1 at 14–15. (2006) 94 SASR 465 at [37]. See Vines, ‘The Quality and Proof of Intention in the Dispensing Power: Lessons from a Short History’ (2002) 9 APLJ 264 at 280–1. (2005) 94 SASR 465 at [36]. Similar sentiments were expressed by Habersberger J in Fast v Rockman [2013] VSC 18 at [48]. See also Rowe v Storer [2013] VSC 385. (1994) 33 NSWLR 446 at 452. Wills Act 1997 (Vic) s 11. See also Wills Act 1936 (SA) s 17(1); Wills Act 1968 (ACT) s 15. In these jurisdictions the doctrines of ‘suspicious circumstances’ and ‘knowledge and approval’ discussed above in Chapter 3 may assume greater importance if there is a witness beneficiary. But see In Estate of Bravda [1968] 2 All ER 217. (1881) 6 QBD 311. [1976] 1 NSWLR 14. See also Re Royce’s Will Trusts [1959] Ch 191 at 198. [1936] Ch 520. ‘Secret’ trusts also are not avoided: Re Young [1951] Ch 344. For secret trusts see Dal Pont and Chalmers at 331–5. Succession Act 1981 s 15: the person entitled to make the charge may witness the will without the charging clause being held invalid. See now Succession Act 1981 s 11(4), which commenced in 2006. Re Barber (1886) 31 Ch D 665 and see 34 Ch D 77. Re Oberg [1952] QWN 38; Re Bunting [1974] 2 NZLR 219. Anderson v Anderson (1872) 13 Eq 381; Re Trotter [1899] 1 Ch 764. [1968] 1 WLR 479; [1968] 2 All ER 217. [1968] 1 WLR 479; [1968] 2 All ER 217 at 224 per Russell LJ. In Estate of Bravda [1968] 2 All ER 217. The presumption was rebutted in Will of Williams (unreported, SC(Tas), 2 December 1986). Succession Act 2006 (NSW) s 10; Succession Act 1981 (Qld) s 11; Wills Act 2008 (Tas) s 12; Wills Act 2000 (NT) s 12. [1968] 2 All ER 217. (2000) 50 NSWLR 81. The legislation considered in the decision differs from the current which came into force in 2006, but not considerably. [2002] NSWSC 891. [2002] NSWSC 891 at [104]. [2004] TASSC 152. But note that the statutory language varies from that in the other jurisdictions. These considerations also apply to informal wills admitted under the judicial dispensing power: Estate of Chan [2015] NSWSC 1107. However, note that the doctrine must be read subject to the judicial dispensing powers: NSW Trustee and Guardian v Halsey; Estate of von Skala [2012] NSWSC 872.

219. 220. 221. 222. 223. 224. 225. 226.

227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246.

Singleton v Tomlinson (1878) 3 App Cas 404. See In the Goods of Smart [1902] P 238; In Goods of Lady Truro (1866) LR 1 P & D 201. Re Jones [1942] Ch 328. [1908] P 140. In Goods of Smart [1902] P 238. Re Batemans Will Trusts [1970] 3 All ER 817. In Goods of Reid (1868) LJ P & M 1. Re Jones [1942] Ch 328. For a recent example of a failure to satisfy both the first and second requirements, see Prosper v Wojtowicz [2005] QSC 177. The interrelationship between incorporation by reference and the judicial dispensing powers has yet to be expansively explored but see Treacey v Edwards (2000) 49 NSWLR 739, which suggests that the incorporation doctrine is not limited to traditional ‘documents’ and may encompass an audio-tape. Allen v Maddock (1858) 11 Moo PCC 427; 14 ER 757. (1897) 7 QLJ 151. (1858) 11 Moo PCC 427; 14 ER 757. For the history of privileged wills, see Lang, ‘Privileged Will — a Dangerous Anachronism?’ (1985) 8 U Tas LR 166. Statute of Frauds 1677 29 Car 11 c 3. Wills Act 1936 (SA) s 11; Wills Act 1968 (ACT) s 16. Lang, note 169, p 176. The two cases are Re Booth [1926] P 118 and Re Ward [1966] QWN 15. [1949] P 187. [1949] P 187 at 196. (1958) 78 WN (NSW) (Pt 1) 334. [1981] 1 All ER 1. [1981] 1 All ER 1 at 5 per Arnold P. In Goods of Spicer [1949] P 441. [1949] VLR 169. [1919] P 7. See, for example, Re Godfrey [1944] NZLR 476. Re Edgar [1919] VLR 683; Re Donner’s Estate (1917) 34 TLR 138. [1962] 2 All ER 829. New South Wales Law Reform Commission, Wills — Execution and Revocation, Report 47, 1986, p 146. For example, Wills Amendment (International Wills) Acts 2012 (NSW, SA, Tas, Vic).

[page 163]

Revocation and Alteration of Wills

6

Introduction 6.1 One of the fundamental characteristics of a will mentioned in Chapter 2 was that a will may always be revoked. A contract not to revoke may be enforced but it cannot restrict the testator’s ability to revoke the will. Revocation may be either voluntarily, or by operation of law. The four methods of voluntary revocation are as follows: (1) by another will or codicil executed in the same manner as is required for the making of a will; or (2) by some writing declaring an intention to revoke and executed in the same manner as is required for the making of a will; or (3) by destruction, by the method of ‘burning, tearing or otherwise destroying’; or (4) except in South Australia, Western Australia and the Australian Capital Territory by writing on the will or dealing with the will in such a manner that the court is satisfied from the state of the will that the testator intended to revoke it.1

In the case of voluntary revocation, it must also be shown that the testator had the necessary capacity to revoke the will and did so with the intention to so revoke. Capacity in this sense is the same as that required to make a valid will, as discussed in Chapter 3. Revocation by operation of law does not require an intention to revoke. There are two distinct methods: (1) by marriage; and (2) by divorce.

The methods of voluntary revocation will first be considered, but before doing so reference should be made to s 19 of the Wills Act 1837 (UK) repeated in some Australian jurisdictions.2 That section provides [page 164] that ‘no will shall be revoked by any presumption of an intention on the ground of an alteration of circumstances’. It is thus made clear that a will may not be revoked apart from the methods set out above, so that if the circumstances of the testator, for example, should change between the time the will is made and death, the will remains effective, unless revoked in the proper way. Wills should therefore be reviewed from time to time to take into account such changes. Of course, major changes, such as marriage, divorce, are now provided for separately.

Revocation by another will or codicil Express revocation by another will or codicil 6.2 It is the invariable practice to include an express revocation clause in a professionally drawn will. A simple clause is: ‘I revoke all former testamentary dispositions.’ The clause indicates in unambiguous language that the testator has now revoked all prior wills and codicils. Even if the testator states in his or her instructions that there have been no previous wills, a revocation clause should be included as it indicates to the personal representatives of the testator that this is the only will that they now need to consider. Further, there may be prior wills that have been overlooked by the testator which again may be safely disregarded. Any form of words may be used to revoke expressly, but intention to revoke must be shown and it has been held that the use of the words ‘last will’ and ‘last and only will’, do not, by themselves, express that intention sufficiently.3

A revocation clause may be confined to only part of a prior testamentary disposition, or it may be limited to the revocation of only one of several prior dispositions, for example, the revocation of a specific codicil. In all cases, it is a matter of construction to determine the true ambit of the clause. Again, the testator should state with some precision what is intended. An example is ‘I revoke all former testamentary dispositions except clause … of my testamentary disposition dated … which clause I hereby confirm’.4 Even if the clause is general and unqualified there have been a number of cases where the courts have held that the clause should have a more limited effect. Much will depend upon the intention of the testator, but a heavy onus is placed upon those who assert that the clause should be limited. It has generally been accepted that the existence of a revocation clause in a will is prima facie evidence of the testator’s intention and evidence sufficient to rebut it must be clear and unequivocal,5 but in [page 165] considering the process, the following extract from the judgment of Helsham J in Re Page,6 although lengthy, is instructive: The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweigh it; for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased’s intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased’s intention at all or only reflect that intention conditionally upon some other event happening. Cases of mistake are instances of the former

and cases of dependant relative revocation are instances of the latter type of situation.

Four cases will suffice to illustrate the principle. In Re Wayland,7 a British subject who was domiciled in England made a will in Belgium, in accordance with Belgian law, that dealt only with property owned by him in that country. Some years later he made a will that clearly pointed out that he was disposing of only his English property. This will contained a general revocation clause. It was held that the clause only applied to prior wills affecting the property in England. The testator had no intention of revoking his Belgian will, which was unaffected by the clause. A similar result was reached in Guardian Trust and Executors Co of NZ Ltd v Darroch8 where a will was executed in New Zealand, the testator later moving to Australia making another will containing a general revocation clause. The court held that the clause should be read as applying only to the disposition of assets in Australia and therefore the New Zealand will, dealing with assets in that country, remained unrevoked. This case was followed by the Victorian Supreme Court in Re Barker.9 There the testator was born in Europe in 1914, came to Australia in 1951 and returned to Europe in 1969. She died in Austria in 1992 leaving an estate that comprised personal property in both Victoria and Europe and real property in Victoria. She made a will in May 1985 that was prepared by her solicitor in Australia. In the same year she made another will in Germany, the later German will containing a revocation clause to the effect that it invalidated any previous written wills. The court admitted extrinsic evidence, including statements made to her [page 166] Australian solicitor, and inferred from that evidence that the testator had no intention when making the German will to revoke the Australian will and that each will was intended to be self contained and to have its own sphere of influence. The Australian will was intended to deal only with Australian assets and the German will only with German assets. Probate was accordingly

granted of the Australian will. The decision in Barker was itself followed and applied in Estate of Crawford10 in similar circumstances, Besanko J holding that in determining the testator’s intention in respect to the revocation clause, statements made by a testator are admissible as evidence of that intention, whether made at the time of the will or thereafter.11 As the testator must have the intention to revoke, it follows that a revocation clause inserted into a will of which the testator did not know and approve does not have revocatory effect. It may be shown, for example, that the clause was inserted by accident or mistake, or that the testator did not intend it to have effect. Thus in Re Luck12 the testator executed a will in 1963 in which he left all his real and personal estate to his sister. At the time, he held no real estate, but subsequently acquired a parcel of land. He then made another will, which contained a general revocation clause but which left only his real estate to his sister. Burt J, in deleting the revocation clause from the second will, stated the general principle as follows (at 150): The question I think is not whether by the second will the testator intended to revoke the first will conditionally, but whether he intended to revoke the first will at all, and upon that question the presence of the revocation clause as it appears in the second will although, as has been said, it is a ‘grave and weighty circumstance’ bearing upon intention it is not decisive. The question is one of testamentary intention and that is not necessarily to be found within the will. If upon a consideration of the terms of and of the form of and of the effect of the second will which contains the revocation clause and upon a consideration of the facts and circumstances outside that document, including statements made by the testator bearing upon his intention, it should clearly appear that the testator did not intend by his second will to revoke the first will then a court of probate can give effect to that intention by omitting the revocation clause from the grant: see Re Page [1969] 1 NSWR 471 and Guardian Trust Co Ltd v Darroch [1973] 2 NZLR 143 in which cases all the authorities are collected and discussed, the most relevant of which on its facts and for present purposes being the decision of Stirling J in Re Phelan [1971] 3 WLR 388. In my opinion the consideration of the matters to which I have referred makes it well-nigh certain in the present case that the testator had by executing his second will no intention of revoking the first will. His intention was to ensure that it would be disposed of according to his wishes as they appear in the first will. It was unnecessary for him to have

[page 167]

done what he did and the use by him of a printed form by which to do it was a mistake — or more accurately perhaps it led him to make a mistake.

The principles relating to mistake are discussed above in Chapter 3. Reference should be made in this context to the decision in Collins v Elstone13 where the revocation clause was given full effect, in contrast to the above decision in Re Luck.14 The difference was that in Collins the testator intended the clause to be included in her new will, and therefore there was knowledge and approval. The mistake in that case was to the nature of the legal effect of the words used, and was not a mistake of fact. The distinction is subtle, but is drawn by the courts. Of course, given the extensive statutory rectification powers which now exist in Australian jurisdictions discussed above in 3.34–3.37, a mistake as to the legal effect should now be rectified in any event.

Implied revocation by another will or codicil 6.3 We are here concerned with a case where there is no revocation clause in the last will, but there are in fact one or more prior testamentary instruments. Thus, for example, Jonathan may make a will in 2005 leaving all his real and personal estate to Deirdre. In 2010 he executes a new will, which does not contain an express revocation clause, in which he leaves his real property to Deirdre, and his personal property to Judith. He dies in 2012. What effect does the 2010 will have on the 2005 will? The general principle is that as a rule of construction, where there are inconsistent testamentary instruments, the later instrument revokes the earlier to the extent of that inconsistency.15 In the above example, therefore, the wills are partially inconsistent, and the gift to Deirdre of personal property in the 2005 will is impliedly revoked by the provisions of the 2010 will. The gift of real property to Deirdre is not affected, however, as there is no inconsistency. The same principle will apply if the instruments are totally inconsistent with each other, in which case the whole of the earlier will is impliedly revoked by the latter. Even if the latter will does not cover the whole of the

subject matter of the earlier will, the court may find that it was the intention of the testator that the latter will should completely supersede the earlier.16 The question is whether the testator intended the later instrument to replace the earlier or merely to supplement it.17 Of course, if the testamentary instruments are not inconsistent at all, they are read together as the last will of the testator and both may be admitted to probate. In this respect, a particular rule relating to codicils should be noted. Known generally as the rule in Hearle v Hicks,18 simply [page 168] stated the rule is that the courts will construe codicils so as to interfere as little as possible with the will itself. In other words, the prior will is only to be held inconsistent to the extent absolutely necessary to give effect to the codicil. Similarly, if there are two testamentary instruments of the same date, or both are undated, and they are not inconsistent, the court will, if possible, construe them so that they can stand together.19

Revocation by writing declaring intention to revoke 6.4 The various Wills Acts of all jurisdictions make it clear that the instrument that revokes a testamentary disposition need not be another will or codicil. Any writing declaring an intention to revoke will suffice, provided it is executed in accordance with the same formalities that are prescribed for the making of wills.20 Thus, in Goods of Fraser21 the testator executed a will in 1866 and in 1869 wrote on the foot of that will the following memorandum: Florence, October 19th 1869. This will was cancelled this day, in the presence of Dr Roderick Fraser, physician, and Margaret Riley, nurse, who witnessed the signature of Thomas Fraser Esq, both being present and signed it as witnesses.

The memorandum was duly executed and revoked the will upon which it was written. It has also been held that a duly attested letter requesting destruction of a will does operate to revoke, provided that the testator intended the will to be revoked by the letter, and not by the later act of destruction.22

Revocation by actual destruction General 6.5 The Wills Act 1936 (SA) by s 22(c), provides that a will or codicil may be revoked: … by the burning, tearing, or otherwise destroying the will by the testator, or by some person in the testator’s presence and by the testator’s direction, with the intention of revoking it.

[page 169] This is typical of all jurisdictions.23 Two distinct elements are thus required: the act of destruction and the intention to revoke, and both must be present for an effective revocation. As stated by James LJ in Cheese v Lovejoy,24 ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two’.

The act 6.6 A number of propositions may be adduced from the authorities dealing with the meaning of the act of destruction: (1) The will need not be totally destroyed, although normally this will be the case if the will is burnt. There must, however, be some actual burning, tearing or other destruction. Thus, the cutting or tearing off of signatures of either the testator or the witnesses or both will amount to sufficient destruction.25 The complete scratching out of a signature is regarded in the same way provided the signature thereby becomes illegible.26 If a non-essential part of the will is

torn off, then there may be partial destruction only: see (4) below. (2) The destruction that has actually occurred must be the completed act. In other words, it must be all that the testator intended to do by way of destruction. In Doe d Perkes v Perkes,27 the testator, being angry with one of his devisees, tore his will into four pieces, but was prevented from tearing it further through the efforts of a bystander (who seized his arms) and the apologies of the devisee. Having calmed down, he fitted the pieces together again. It was held that when he stopped tearing he had not done all that he intended to do in order to revoke and accordingly there was no destruction. The result would have been different if he had only intended to tear the will into the four pieces. (3) The words ‘otherwise destroying’ are construed ejusdem generis with the words ‘burning’ and ‘tearing’. Some actual violence must be done to the will, such as cutting or scratching out. A mere symbolic destruction is not sufficient. In Cheese v Lovejoy,28 the testator drew his pen through some lines of his will, wrote on the back of it ‘all these are revoked’ and threw it among a heap of waste paper on the floor of the sitting room. He told the housemaid that the will was good for nothing. The maid retrieved the will and left it lying about the house in various positions. It was held that there had been no revocation by destruction as the acts of the testator were symbolic. On similar principles, drawing a line through a signature will not be a sufficient act;29 the signature [page 170] should be cut or scratched out altogether. A mere crossing out with a pen is therefore inadequate.30 (4) A will may be partially revoked by destruction, leaving the remainder effective. In Goods of Woodward31 the testator made a will consisting of seven pages. The first eight lines had been cut and torn off, but in all other respects the will was complete. The will was admitted to probate with the excised pieces omitted. If, therefore, the testator destroys a non-essential part of the will, so that what is left is intelligible and workable,32 the part remaining is not revoked. This may occur, for example, if a legacy or the appointment of executors is excised. (5) A destruction of a will, in the sense outlined above, does not affect a codicil to that will. The revocation of one testamentary instrument by destruction does not have the effect of revoking other testamentary instruments.33 (6) The statutory provisions provide that the act of destruction must be carried out by either the testator or by another person in the testator’s presence and at the testator’s direction. The meaning of ‘presence’ in this regard has been interpreted in the same manner as that required for the execution of wills: see 5.9 above. In Re Dadd’s Goods,34 for example, the testator advised her neighbour and her executor that she wished to revoke a codicil to her will. They decided to burn the instrument, but did so in the kitchen, out of sight of the testator. The ‘presence’ requirement was not satisfied. The testator must have had an opportunity of seeing the destruction.

The intention 6.7 As stated above, the act of destruction and the intention to revoke must be present at the same time: see 6.5 above. Thus in Gill v Gill35 the testator’s wife, ‘beside herself with anger’ tore up the testator’s will. The testator, ‘beside himself with drink’, laughed at this action and treated it as a joke. Although he later acquiesced in the wife’s action, the will was not destroyed at his direction, and there was no intention to revoke at the relevant time of destruction. The same standard of mental capacity is required for revocation by destruction as for the making of a valid will, so that mental illness may prevent effective revocation.36 Similarly, a will destroyed by accident37 is not revoked, and a will destroyed by mistake, even if the mistake relates [page 171] to the legal consequences of the action, may not result in revocation.38 Wills destroyed by mistake are generally treated as coming within the category of dependent relative revocation, which is discussed below at 6.10–6.11.

Revocation by dealing with a will: New South Wales, Victoria, Queensland, Tasmania and the Northern Territory 6.8 The legislation39 in these jurisdictions is almost identical. As an example, s 11(1)(f) of the Succession Act 2006 (NSW) provides for the revocation of a will: … by the testator or by some person in his or her presence and at his or her direction writing on the will or dealing with the will in such a manner that the court is satisfied from the state of the will that the testator intended to revoke it.

The provision has yet to receive extensive judicial consideration. Quite clearly, the provision is complementary to the judicial dispensing power

already discussed in detail in Chapter 5, but more limited in that the court must be satisfied ‘from the state of the will’ that there has been a revocation. As Young J stated in Aoun v Clark: ‘[I]t seems to me that there is no scope for considering the evidence dehors the will if intention to revoke.’40 There must be something on the will itself to indicate revocation. That said, there is no reason why the section should be further limited. It was designed to cover symbolic acts of destruction that would not have come within the traditional interpretation as discussed in 6.5.41 To take the case of Cheese v Lovejoy42 for example (discussed at 6.6), the writing of the word ‘cancelled’ or similar expression would be sufficient to satisfy the statutory provision.

Missing wills: presumption of destruction 6.9 If a will is lost it may still gain recognition by a Probate Court and thus be admitted to probate. However, to be so admitted, it appears that five matters must first be established, as identified by Young J in Curley v Duff,43 and modified by Campbell J in Cahill v Rhodes44 to take into account the judicial dispensing power. The formulation by Campbell J (at [55]) is as follows: First, it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person; second it must be shown that that document revoked all previous wills; third the presumption that when a will is not produced it has been destroyed must be overcome; fourth there must be evidence of its terms;

[page 172] and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.45

As far as the presumption is concerned where a will was last known to be in the possession of the testator, but it cannot be found when he or she dies, there is a presumption that the testator destroyed the will with the intention of revoking it.46 The presumption may be rebutted by evidence to the

contrary. There is a considered summary by Powell J of the New South Wales Supreme Court in Whiteley v Clune (No 2); Estate of Brett Whiteley.47 His Honour stated that the strength of the presumption depends upon the character of the testator’s custody over the will,48 and that if the testator has made a will which makes a careful and complete disposition of the testator’s property, and an examination of the circumstances as to the testator’s testamentary intentions between the time of the making of the will and the time of death does not reveal anything which shows that the testator had any reason to revoke the will by destroying it, the presumption is so slight that it may be said not to exist.49 In respect to the factor of custody over the will, Campbell J in Cahill v Rhodes50 stated as follows: The cases to which Powell J referred as authority for the proposition that ‘the strength of the presumption depends upon the character of the testator’s custody over it’ explains by example what is meant by the expression ‘the character of the testator’s custody over it’. It refers to facts concerning the physical arrangements the testator has for security of the will — for instance, how many keys there are and who has them or access to them, or whether the testator keeps his will in his coat pocket — who knows of the location of the will, whether anyone besides the testator has access to the will, and the extent to which the testator has been careful in looking after his will. All these are matters which can affect the likelihood of the will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.

There are many authorities illustrating this principle. In McCauley v McCauley51 the High Court of Australia particularly emphasised this factor in holding that the presumption of destruction has been effectively [page 173] rebutted, and a similar result was found in Whiteley v Clune (No 2); Estate of Brett Whiteley,52 and Garland v Dillon.53 Of course, custody is only one factor to be taken into account in the

myriad of circumstances needing consideration to determine whether there was revocation with revocatory intent. In In Will of Boyd (decd); Ex parte Whelan,54 it was emphasised that the nature of the provisions in the will itself were very material on the question of probabilities of destruction. There the unlikelihood of the testator having changed his attitude to the beneficiary under the will, a reference by the testator to the continued existence of the will shortly prior to his death, and the mental and physical condition of the testator at the time of such reference, were held as important facts of evidentiary relevance against the probability of revocation by destruction. To similar effect is the decision in In Estate of Szylonicz,55 where the testator, who was a quadriplegic patient in hospital, duly executed a will by mark, but after his death the will could not be found among his papers and personal effects at the hospital. It was found in evidence that the deceased was physically incapable of destroying the will himself and he had spoken to friends in terms which indicated that up to the time of his death that he believed that the will which was executed was valid and subsisting. The presumption of revocation was rebutted, the court holding that the will was probably mislaid at the hospital and inadvertently destroyed.56 More recently, in Lawrence v Australian War Memorial57 the presumption was rebutted in circumstances where it was found on the evidence that the testator was very conscious that he should not die intestate, was almost obsessive about making wills and there was no reason why he would have changed the primary gift in the will. A similar result was reached in In Estate of Hall.58 Conversely, in In Estate of Gibbs (dec’d)59 the evidence was that the deceased’s history of executing various wills suggested that she was prepared to vary her will as circumstances changed and on the evidence it was not possible to conclude that there was a careful and complete disposition of the deceased’s estate in the propounded will which was sufficient to weaken the presumption of revocation to such an extent that it was overcome. The presumption was also not rebutted in Re Moschoudis60 where there was evidence that the original will was last known to be in the deceased’s

possession and was not found among the various documents stored in his house, meaning that on balance the presumption that the deceased had destroyed the original will with the intention of revoking it had not been rebutted. There were also a number of circumstances which established that the deceased had revoked the original will, including the [page 174] fact that the original will was executed as a matter of urgency before he was about to undergo a medical procedure, and later that he had instructed a solicitor to prepare a new will for him. The circumstances established that the deceased probably revoked his original will by destroying it As pointed out by Hardingham, Neave and Ford,61 rebuttal evidence may take the form of establishing that the will was not destroyed or if it was destroyed, it was done so without revocatory intent. The former has been covered above. The latter can cover cases of evidence of dependent relative revocation or mistake, as was the case in In Will of Broomhead.62 Obviously, destruction of a will when the testator lacks the necessary mental capacity may also be relevant.63 If there are duplicate wills, and a copy retained by the testator is missing on death, again a presumption of destruction will be raised.64 The presumption will also operate if the duplicate retained by the testator is destroyed.

Dependent relative revocation General 6.10 In Estate of Southerden65 the testator made a will leaving all of his estate to his wife. The will was made shortly before the testator and his wife

made a voyage to America. On their safe return, he took up the will and said to his wife: ‘This is no good now: we have returned safely and it is all yours. We might as well burn it.’ The will was burnt, the testator being of the mistaken impression that his wife would take all his assets under the intestacy rules.66 It was held that the testator had not revoked the will; the destruction was conditional, and the condition was not satisfied. The words of Atkin LJ are instructive (at 185–6): The true answer to the question in the present case is that there was in fact no intention to revoke the will at all. There has been brought into existence in recent years a doctrine which has been described as ‘dependent relative revocation’. The question in each case is, had the testator the intention of revoking his will? The intention may be conditional, and if the revocation is subject to a condition which is not fulfilled, the revocation does not take effect. Cases of dependent relative revocation are mostly cases where the testator has supposed that if he destroyed his will his property would pass under some other document. But the condition is not necessarily limited to the existence of some other document. The revocation may be conditional on the existence or future existence of some fact. If that is proved full effect can be given to the Wills Act 1837. You must prove

[page 175] that there was in fact a condition. It is a question of fact in each case … I think the true inference of fact is that when the testator destroyed his will in the presence of his wife he did it on the condition that she would take the whole of the property. The condition was not fulfilled, and therefore the revocation was not operative.

Dependent relative revocation is thus simply a type of conditional revocation. The testator’s intention may be either absolute or conditional. If absolute, then revocation will take place upon the act of revocation. If it is conditional, then revocation will not take place unless the condition is satisfied.67

Examples of dependent relative revocation 6.11 The cases on the doctrine are numerous, given that there is no real limit on the variety of matters that may make the revocation conditional.

Apart from mistake (as in Southerden), it is possible, however, to identify a number of different categories where the doctrine has been successfully applied as follows. (1) Revival. The law relating to revival of wills is discussed in Chapter 7. Basically, if a testator has executed two wills, and the second revokes the first, a later revocation of the second will does not revive the first will. The testator would thus die intestate. Nevertheless, many testators have been under the mistaken impression that revival will occur in these circumstances, and the doctrine of dependent relative revocation may operate to prevent the revocation of the second will. A good example is provided by Re Lindrea.68 There the testator made a will in 1947, leaving his property to his wife for life and after her death to his four children in equal shares. In 1948, he executed another will, which revoked the 1947 will, in which he left all his property to his wife absolutely. He later changed his mind, evidently because of his wife’s intemperate habits, and destroyed the 1948 will, on the mistaken assumption that the first will would then be restored. It was held that the sole purpose of the revocation of the later will was to set up the earlier one. There was therefore a conditional revocation only, and not a true animus revocandi, and upon failure of the condition the second will remained unrevoked. (2) Execution of new will or codicil. If it can be shown that the act of destruction was done on the assumption that a new will would be made, and that assumption is false, that is, a new will had not been made, then the doctrine may operate to prevent revocation of the will. In Dixon v Treasury Solicitor,69 for example, the testator destroyed his will after giving instructions to his solicitor to make [page 176] a new will. He believed that the destruction was a necessary precondition to the making of a new will. He died before he could execute the new will, and it was held that the earlier will had not been revoked. Compare that case, however, with Re Jones70 where the testator, in 1965, made a will leaving substantial benefits to her two nieces. In 1970 she told her bank manager that she intended to make a new will leaving the benefits to her nephew’s children. She mutilated the 1965 will, and sought a solicitor to make the new will. Before the solicitor could see her, however, she died. The English Court of Appeal held that in these circumstances there was no dependent relative revocation. The testator intended to revoke the 1965 will absolutely, and that revocation was not conditional on the new will being made. Before the doctrine can be invoked, the condition must be established by sufficient evidence. That evidence was also not available in Re Wright71 where the testator tore up the will. As the judge commented (at 72): It was argued that the doctrine of dependent relative revocation should be applied but the evidence does not establish … that the tearing up of the will was connected with an intention to substitute a new will. All it establishes is that the testator was

considering at some earlier time reviewing his will. (3) New will already made but not properly executed. Similar principles will apply if the testator has already made a new will, but it is not properly executed. Afterwards, the testator destroys the old will. If the testator’s intention in revoking the old will was conditional upon the due execution of the new will, the old will is not revoked. So in Dancer v Crabbe72 the testator instructed a friend to make alterations to a number of dispositions in her will. The friend wrote the alterations down on a memorandum, but that was never executed. The testator then tore out of her will the dispositions that were the subject of the alterations, and put the will with the memorandum. The old will was not revoked. Similarly, in Re Broomhead,73 for example, the testator made a will under which his sisters were principal objects of his bounty. Sometime after the death of one of his sisters, he took his will from the authority of his solicitors. Later a second sister died and a few days before his death he wrote to his surviving sister to state that he had made a will under which she was to take half the estate. On his death the original will could not be found, but a document in the form of a will signed by the testator but unattested was found among his effects. The document was undated, but had apparently been made after the death of the second sister and it provided for the division of his estate between the surviving sister and a niece. Herring CJ held in the circumstances that the proper inference from the facts [page 177] was that the testator had destroyed his will, but he had destroyed it in the belief that he had executed a later valid will (or, if not, with the intention that it should be revoked conditionally upon his execution of a new will). As such, the doctrine of dependent relative revocation was applied and probate was granted of the destroyed will.

It should be noted in these circumstances that it would be more likely now that the judicial dispensing powers would be used to validate the new will, without the necessity to invoke the dependant relative revocation doctrine.

Revocation by marriage 6.12 The Wills Acts of all Australian jurisdictions provide that every will made by a man or woman shall be revoked by his or her marriage. There are two exceptions to the general rule: wills made in exercise of powers of appointment and wills made in contemplation of marriage.74 The exceptions will be considered separately below. In Tasmania, the legislation also extends to the revocatory effect of prior

wills on the registration of a deed of relationships under the Relationships Act 2003 (Tas). The same occurs in the Australian Capital Territory (Civil Partnerships Act 2008 s 5) and Queensland (Civil Partnerships Act 2011 s 6). If therefore, such a deed is registered in Tasmania or a civil partnership exists in either the Australian Capital Territory or Queensland, then that has the same effect of marriage on a person’s will, unless within the exceptions. Revocation thus occurs automatically on the marriage of the testator, irrespective of the testator’s intention. The purpose of the rule was explained by Adams J in Burton v McGregor75 in these terms: The purpose of the law as to revocation by marriage is to let in the claims of wives and children, and it is reasonable to suppose that their claims are properly protected and adjusted by the law as to intestacy. To maintain a will made before marriage may result in injustice to children, or even to the wife herself …

In other words, by revoking old wills, which would otherwise have survived the marriage, the possibility of members of the testator’s family not being provided for, through inadvertence, is lessened. If the testator does not make a new will after the marriage, then the rules relating to intestacy will make adequate provision. Implicit in this assumption is that marriage imposes new and fundamental responsibilities on a person that are likely to make inappropriate the provisions contained in an earlier will. [page 178] Marriage also revokes privileged wills,76 but the rule does not apply if the marriage was void.77 It will, however, operate to revoke where the marriage is only voidable, unless the marriage is voided during the testator’s lifetime.78

Wills in contemplation of marriage General

6.13 The major exception to the general rule relates to wills made in contemplation of marriage. Such wills are not revoked by the marriage contemplated. The previous legislation79 (and the current in South Australia80 and the Australian Capital Territory81) provided that the will had to be expressly made in contemplation of marriage to come within the exception. In other words, the statutory formulation required that the contemplation of marriage had to be expressed in the will itself, for the exception to be applicable. The uniform succession law amendments to these previous statutory provisions are detailed below in 6.16. In the meantime, the previous law is applicable to wills made prior to the following dates in the jurisdictions.82 As indicated, it is also still current in South Australia and the Australian Capital Territory. It is thus necessary to consider the applicable law relating to wills in contemplation of marriage prior to the uniform succession law amendments, and then to critically consider the effect of those statutory amendments on the previous law.

Prior legislation 6.14 There is a considerable body of case law dealing with the legal meaning of ‘expressed to be made in contemplation of marriage’. The exception has been interpreted in the following manner: (1) A statement in the will expressing contemplation of marriage generally does not satisfy the section; contemplation of the particular marriage that is later solemnised is required. Thus in Sallis v Jones83 (‘this will is made in contemplation of marriage’) and in Re Hamilton84 (‘should I marry prior to my death’) the respective wills were held not to satisfy [page 179] the terms of the section and were revoked by the testator’s subsequent marriage. Given the actual terms of the section, this conclusion is unavoidable. (2) There are cases where the testator has used terminology in the will that indicates a possible marriage. The testator may, for example, refer to a beneficiary as ‘my future wife (or husband)’ or ‘my fiancée’. There are a number of authorities to the effect that such language sufficiently expresses the requisite contemplation.85

(3) There are difficulties with cases where, the testator has left the estate to ‘my wife’ or ‘my husband’ and the testator was not married when the will was made. The difficulty is caused by the fact that the statutory provision requires that the will itself be expressed to be made in contemplation of the marriage, so that extrinsic evidence of the testator’s intention is not admissible. Thus, for example, in Re Taylor,86 the will of the testator left the whole of his property ‘my wife Alice Jane Louisa Maud Taylor’. He was living with one Alice DeLittle at the time the will was executed, and some two years later married her. O’Bryan J’s reasoning is stated in the following passage: Can it be said that because he described her as ‘my wife’ and gives her his name ‘Taylor’ that he was giving expression to his contemplation of marrying her? It is with regret that I answer that question, no. I can read no more into this description of her than that was how he regarded her — as his wife, Mrs Taylor; not that he was making his will in contemplation of marrying her.87 In other words, the words ‘my wife’ or ‘my husband’ can be regarded simply as a description of the person to actually take the benefit under the will, and do not indicate an expression of contemplation of marriage. O’Bryan J stated that were he at liberty to go outside the will, he would find extrinsic evidence that at the time of the execution the testator did intend to marry the beneficiary in the near future, but he was unable to look at that evidence. (4) More recently, there has been some judicial creativity in allowing the admission of extrinsic evidence. In In the Will of Foss,88 for example, the testator described his fiancée in his will as ‘my wife, Mrs P Foss’ and married her a few days after executing the will. In upholding the will, Helsham J pointed out that while it was not permissible to examine extrinsic evidence of the testator’s intention to show that the will was made in contemplation of marriage, it was permissible, as a court of construction, to admit extrinsic evidence of the surrounding circumstances when the will was made. If, therefore, there is some indication in the will of the possibility of it [page 180] having been made in specific contemplation of a marriage that has taken place, however ambiguous, then evidence may be admitted to assist in construing the ambiguity, that is, to see if it expressed the requisite contemplation of marriage. Such words as ‘my fiancée’ and ‘my wife (or husband)’ should, therefore, put the court to an enquiry of relevant surrounding circumstances. In the instant case, those circumstances indicated that the words used referred to his intended wife, and were not merely descriptive. A similar result was reached in the Queensland decision of Keong v Keong89 and the New South Wales Court of Appeal decision in Layer v Burns Philp Trustee Co Ltd.90 In the latter case, a legacy was left in a will to ‘my wife Gail Layer’. The parties were married immediately after the execution of the will, in the hospital in which the testator was terminally ill. The court held that the words used were to be construed in the surrounding circumstances, as a gift to ‘my intended wife’ and sufficiently expressed the testator’s contemplation of the marriage. In the words of Mahoney J:

… it is proper to conclude from the evidence to which the court may have regard that the deceased did not describe the appellant as ‘my wife’ because he had the habit or disposition of so describing her … given the circumstances, the inference is that the deceased saw the word as appropriate to describe her because he was on the point of marriage to her.91 The contemplation of marriage was thus inherent in the words the testator had used. For this principle to be applied, however, it is essential that the language used by the testator displays some indication in the will of the possibility of it having been made in specific contemplation of the marriage that took place. In Wain v Wain92 that language was lacking, and the court held that there was nothing which was capable of construction, so that the marriage revoked the will and the testator died intestate. All of the authorities noted above were distinguished. (5) A further problem caused by the exception is whether the will as a whole and not merely parts of it must be expressed to be made in contemplation of marriage. In England, Megarry J in Re Coleman93 held that even though parts of a will show a sufficient contemplation of marriage, this will still not be enough to save the whole will unless those parts amount substantially to the whole of the beneficial dispositions made by the will. A different approach, has, however, been taken in Australia. In Layer v Burns Philp Trustee Co Ltd,94 the gift in favour of the wife amounted to $50,000. The estate was valued at approximately $1.1 million and the testator had made residuary gifts in favour of his son and daughter. [page 181] The New South Wales Court of Appeal held, notwithstanding, that the will was made in contemplation of marriage. It was not necessary to show that the will was made because of marriage. All that is required is that the testator had in mind the particular marriage, and that appears from the terms of the will. (6) The meaning of the term ‘contemplation’ has escaped substantial judicial attention,95 but was discussed by White J of the New South Wales Supreme Court in Hoobin v Hoobin.96 His Honour held that to contemplate something does not necessarily import an intention to bring it about and relying on the Oxford English Dictionary, ‘contemplation’ meant ‘having in view or taking into account as a contingency to be provided for’. He also held that, for the purposes of legislative exception, the deceased need not intend nor understand that his contemplation of a particular marriage will preserve the will from revocation if that marriage takes place. Indeed, there is no requirement that the will be made because the deceased proposed a particular marriage.97 No causal connection is required between the making of the will and the proposal to marry — it is enough that the time the will is made the testator contemplates the marriage which is later solemnised. In his Honour’s view the phrase ‘contemplation of marriage’ means ‘intending, proposing or expecting a marriage or having in mind as a contingency to be provided for or as an end to be aimed at’.98

Current law New South Wales 6.15 The legislative provision99 provides that a will made in contemplation of marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated. The effect of this subsection is that the contemplation of marriage no longer needs to be expressed in the will itself, and may be established by extrinsic evidence of the testator’s intention. Therefore, there is no longer any need in that jurisdiction to utilise the Foss approach, discussed above, to attempt to admit extrinsic evidence. Section 12(4) provides that where a will is expressed to be made in contemplation of marriage generally, it is not revoked by the solemnisation of a marriage of the testator. The contemplation, in these circumstances, must be expressed in the will itself, but if it is, then it would seem that reference to a marriage generally will be sufficient to save the will upon the testator’s later marriage. In other words, a testator may make a will, having in mind that he or she may marry sometime in the future. The will so made will not be revoked by [page 182] any subsequent marriage, provided that the will itself is expressed to be made in contemplation of marriage generally. Thus, the decisions such as Sallis v Jones100 and Re Hamilton101 and similar, discussed above, are no longer relevant in that jurisdiction.

Victoria, Queensland, Tasmania and the Northern Territory 6.16 The statutory provisions in these jurisdictions are identical, following the draft Wills Bill of the Uniform Succession Law Project.102 First, it is provided that a disposition to the person to whom the testator is married at

the time of his or her death made prior to the marriage is not revoked by the marriage of the testator. Thus, should the testator make a will, say, in Victoria in 2005 leaving a gift of all his estate to Jane Doe and subsequently marries Jane in 2006, and then dies, the disposition to Jane is not revoked. The same principle applies even if the gift does not comprise all the estate, for example, a legacy to Jane or $100,000. In this situation, the will is revoked but the disposition to Jane saved, so that the balance of the estate will fall to be administered under the intestacy rules. These provisions neatly avoid the problems inherent in the previous legislation, discussed above, as to whether the expressions ‘my fiancée’ or ‘my wife’ sufficiently express contemplation of marriage as the ‘fiancée’ or ‘wife’ will now take the benefit in any event, so long as they are married to the testator upon the testator’s death. Second, the provisions provide that a will made in contemplation of a marriage is not revoked by the marriage, and the contemplation need not be expressed in the will, so that it may be established by extrinsic evidence.103 Third, again, as in New South Wales, a will made in contemplation of marriage generally is also not revoked, but it would appear from the wording of the provisions that in these circumstances that contemplation must be expressed in the will itself.104

South Australia and the Australian Capital Territory 6.17 Both jurisdictions retain the prior legislation, so the discussion of that above is still pertinent.105

Western Australia 6.18 This jurisdiction retains the old law that a will made in contemplation of marriage of the testator is void if the marriage is not solemnised (unless the will provides to the contrary).106 The will must either be expressed to be made in contemplation of the marriage or there

[page 183 ] must be other evidence establishing that the will was made with the contemplation, thus allowing extrinsic evidence to establish the relevant contemplation.107

Wills revoked by marriage: exception relating to powers of appointment and executors and trustees 6.19 In respect to powers of appointment, the exception basically provides that an appointment made by a will is not revoked by the subsequent marriage of the testator if the real or personal estate thereby appointed would not in default of such appointment pass to the testator’s heir, executor, administrator or the person entitled as next of kin under the intestacy rules. The purpose behind the exception is to allow the appointment by the will to be revoked by the testator’s marriage only in the case where the testator’s new family may benefit under the gift in default of appointment. In other words, revocation would not normally bring an advantage to the testator’s new family, because if the will were revoked, the gift over in default of appointment would come into effect in favour of other persons. That being the case, the exception is consistent with the general policy behind the revocation on marriage rule.108 In respect to executors and trustees, the Uniform Succession Law Project recommended that the appointment of an executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator’s death should not be revoked along with the will and this sensible recommendation has been put in place by legislation in most jurisdictions.109

Revocation by termination of marriage General

6.20 In all jurisdictions in Australia, it is now provided that a will, or certain provisions contained in the will, are revoked by the divorce or the annulment of the marriage of the testator.110 [page 184] The argument in favour of automatically revoking wills on divorce is that in most cases testators would not wish to benefit their ex-spouses, either at all, or as generously, as would be the case if the marriage still continued. As the New South Wales Law Reform Commission has stated: Termination of marriage represents a fundamental change in a person’s life which, more often than not, renders inappropriate provisions in favour of the former spouse in wills made during the marriage. Though reported instances of difficulty with the existing law are few, an increasing number of people are getting divorced in Australia and many of them do so without seeking any legal advice. They may not therefore be alerted to the need to revise an earlier will or may mistakenly believe that the divorce will automatically revoke an earlier will. We believe that most testators if they thought about it, would not desire to benefit their former spouses under their wills (at least, not as generously as had been intended before the divorce) and would be horrified at the thought of them administering their estates.111

Statutory provisions112 6.21

This is discussed on a jurisdiction by jurisdiction basis.

New South Wales 6.22 Upon termination of marriage, any disposition in favour of the testator’s former spouse is revoked.113 Upon termination of marriage, any power of appointment exercisable by or in favour of the testator’s former spouse is also revoked.114 Any appointment of the testator’s former spouse as executor, trustee, advisory trustee or guardian is revoked.115 These provisions apply unless a contrary intention appears in the will.116 However, an appointment of the testator’s former spouse as trustee of the property left by will on trust for beneficiaries that include the former spouse’s children or the

grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of the testator and the former spouse is not revoked.117 Any beneficial gift or power caught by the revocation will pass as if the former spouse had predeceased the testator.118 As a consequence, if the testator leaves, say, a legacy to his wife, and the parties are later divorced, the legacy is deemed to have lapsed and the legacy will go to the residuary estate, if the will contains a residuary clause, or, if not, it will pass on intestacy. [page 185]

Victoria 6.23 Upon divorce, any dispositions to the divorced spouse of the testator, made in a will in existence at the time of the divorce, are revoked.119 Also revoked are powers of appointment and appointment of the former spouse as trustee, advisory trustee or guardian, but with a similar exception to the New South Wales provisions (see 6.22 above), in that if the appointment relates to the children of the spouse or spouses, then that is not revoked.120 The application of the section is subject to a contrary intention121 but it is worded in wider terms than that in New South Wales, providing that ‘if it appears’ that the testator did not want the disposition to be revoked, then it will not be. Presumably, this wording would allow extrinsic evidence of the testator’s intention. As in New South Wales, any disposition caught by the provision will take effect as if the spouse had predeceased the testator, so that the doctrine of lapse, as discussed in 6.22 above, is applicable.122

Queensland, Tasmania and the Northern Territory 6.24 The legislative provisions are almost identical in these jurisdictions.123 As in all jurisdictions, the general rule that a will is revoked by the divorce of the testator is made explicit.124 As in New South Wales and

Victoria, also revoked are an appointment of the testator’s spouse as executor, trustee or advisory trustee, and a grant made by the will of a power of appointment exercisable in favour of the testator’s spouse.125 However, divorce does not revoke the appointment of the testator’s former spouse as trustee of property dealt with by will on trust for beneficiaries that include the former spouse’s children or the grant of a power of appointment exercised by the testator’s former spouse only in favour of children of whom both the testator and former spouse are parents.126 Again, as in the other jurisdictions, the will takes effect if revoked by the provisions as if the testator’s spouse had died before the testator, thus involving the doctrine of lapse, as outlined in 6.22 above.127 The provisions are subject to a contrary intention, but that must appear in the will in Queensland,128 so that extrinsic evidence would appear to be inadmissible to establish intention in that state. The provisions in Tasmania and the Northern Territory129 provide that a contrary intention may be expressed in the will ‘or otherwise’ so a wider scope as to extrinsic evidence being admitted is given in those jurisdictions. [page 186]

South Australia and the Australian Capital Territory 6.25 The basic scheme of revocation on termination of marriage is continued in both jurisdictions, that is, the termination of marriage130 revokes a disposition of a beneficial interest in property in favour of the testator’s former spouse,131 as is the appointment by will of the testator’s former spouse as executor, trustee or guardian.132 So too are powers of appointment exercised by or in favour of the testator’s former spouse. However, there is no equivalent in either jurisdiction as to the exception from revocation in cases where the spouse is appointed trustee of property left by will upon trust for beneficiaries that include children of the spouse(s), as in all other jurisdictions, except Western Australia. Uniquely, the South Australian

legislation also provides an exception to the general rule in that a disposition or grant of a power in accordance with a contract between the testator and the former spouse under which testator is or was bound to dispose of property by will in a particular way is not affected by the termination of marriage.133 It is doubtful that this provision adds anything to the current law on testamentary contracts, and is probably otiose. Revocation in both jurisdictions is subject to a contrary intention. However, in South Australia that intention must appear from the terms of the will,134 so that extrinsic evidence is not available, while in the Australian Capital Territory135 a wide discretion is given to the court in that any evidence (whether admissible before the commencement of the section or not), including evidence of statements made by the testator, is admissible. A contrary intention may thus be expressed either within the will or outside of it so that extrinsic evidence of intention is admissible to establish the testator did not intend to revoke the will, despite the termination of the marriage.

Western Australia 6.26 The Western Australian legislation repeats the basic rule that a will is revoked by the ending of the testator’s marriage.136 However, there are no statutory exceptions to that rule, as in the other jurisdictions. Therefore, in that state the whole will is revoked, which it may be argued is a rather unsophisticated and blunt way of dealing with the matter. Not only are powers of appointment or trusts in favour of the testator’s children revoked, but so are specific gifts in favour of all other beneficiaries as well as the spouse. Provision may be made by a testator in the will in favour of children, other relatives, friends, or charities, but these gifts will fail unless a contrary intention appears. These comments apply equally to any guardianship and disposal of body provisions in the will, and may not [page 187]

accurately reflect the testator’s true intentions. The section is, however, as indicated, subject to a contrary intention and that may be established by evidence appearing in the will itself or extrinsic evidence.137

Miscellaneous provisions 6.27 In the Australian Capital Territory and South Australia, if the will is republished after the termination of the marriage, either by re-execution of the will or by codicil which evidences no intention of the testator to revoke, then there is no revocation.138 If, therefore, after the divorce, the testator executes a codicil to the will (made before the divorce) which, say, substitutes an executor, but otherwise confirms the will, then generally, there will be no revocation. The intention not to revoke, however, must be clear from this act of republication.139 The New South Wales, South Australia and Australian Capital Territory provisions also make clear that the right of the former spouse to claim family provision is not affected by the revocation of the gifts.140 The terms ‘divorce’ or ‘termination of marriage’ are used in the legislation, but generally mean the same thing.141 The Victorian provision is typical.142 It provides: divorce means the ending of a marriage by — (a) a decree of dissolution of the marriage becoming absolute under the Family Law Act 1975 of the Commonwealth; or (b) the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or (c) the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.

Alterations, interlineations and obliterations: amendment of wills

General 6.28 As Croucher and Vines point out,143 alterations may be made to a will by the testator in various ways. There may be extra words written on the will, or there may be interlineations, that is, insertions, or the testator [page 188] may obliterate, or attempt to obliterate, parts of the will. The effect of such alterations is discussed below, the discussion largely being concerned with the interpretation of the relevant statutory provisions, which are in similar form. In all Australian jurisdictions, the legislation in relation to amendments to wills is based upon s 21 of the Wills Act 1837 (UK).144 The New South Wales provision is typical. It provides as follows: 14 How a will may be altered (1) An alteration to a will after it has been executed is not effective unless the alteration: (a) is executed in the manner in which a will is required to be executed under this Part, (b) is made by a minor by the authority of an order of the Court under section 16 and is executed in accordance with, and satisfies the requirements for such a will set out in, section 16(5), or (c) is made for and on behalf of a person who does not have testamentary capacity by the authority of an order under section 18 and satisfies the requirements for such a will set out in section 23. (2) Subsection (1) does not apply to an alteration to a will signed by or at the direction of the testator if the words or effect of the will are no longer apparent because of the alteration. (3) If a will is altered, it is sufficient compliance with the requirements for execution if the signatures of the testator and of the witnesses to the alteration are made: (a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration, or (b) as authentication of a memorandum referring to the alteration and written on the will.

Three issues must be addressed. The first relates to the time when the alteration was made; if made before the execution of the will, then the provisions based upon s 21 above will have no effect. Second, if the alteration is duly executed it will be valid. A discussion of this requirement is therefore required. Finally, even if there has been no execution, the alteration will still

take effect if it has made part of the will not ‘apparent’. If it is still apparent, it is not revoked. What is meant by ‘apparent’ in this context? See 6.31 below for a discussion of this term. [page 189]

Alteration made before execution of will 6.29 If made before execution, then the will takes effect as altered, provided the alteration was made with the knowledge and approval of the testator. It will not be valid if merely deliberative and not final.145 There is a general presumption, however, that unattested alterations, interlineations and obliterations are made after the execution of the will and are thus ineffective.146 If the presumption is not rebutted, the will in its original form, without the amendment, will be admitted to probate. The presumption may be rebutted either by intrinsic evidence, that is, from the document itself, or by extrinsic evidence. The presumption may be rebutted by internal or intrinsic evidence where, for example, it can be shown that without the alteration the will does not make any sense. This may occur where a will is originally written out with blank spaces and those blanks have been completed.147 Where the attestation clause refers to the amendment, this will also be sufficient to rebut the presumption. Extrinsic evidence includes statements made by the testator either before or at the time of execution (but not after) to the effect that alterations had been made,148 and evidence of attesting witnesses or the draftsman of the will that the alterations were made prior to execution.149 The simplest thing to do, of course, to avoid such problems, is to make sure that all alterations, made either before or after execution, are properly attested. If this is the case, then there is no need to consider the presumption at all.

Alteration duly executed 6.30 If the alteration occurs after the execution of the will, it must be executed in accordance with the necessary formalities. The statutory provisions state that the signature of the testator and the attesting witnesses may be made in the margin or near to the alterations, or at the foot or end of a memorandum referring to the alteration provided the memorandum itself is written on the will. As with the formalities for the actual execution of wills, the courts have insisted on strict compliance here. Thus in Goods of Shearn,150 the will was properly executed and attested. Immediately after execution it was discovered that a part had been omitted, and this was corrected by an interlineation. The two witnesses placed their initials in the margin near the interlineation, but the testator did not initial the amendment. As she did not do so, there had not been due execution, and the attestation failed. Such a result may be avoided if it can be shown that the testator [page 190] acknowledged the previous signature, in which case it will be sufficient if the witnesses alone initial the attestations. For this to apply, however, it must be proved that in affixing their signatures the witnesses were actually attending the execution of the will.151 It should also be noted in this regard that alterations that do not strictly comply with the formal requirements may nevertheless be upheld under the judicial dispensing power.152

Obliterations: part of will not apparent 6.31 An alteration after execution that makes any part of the will ‘not apparent’ has the effect of revoking that part. Under this provision, no formal requirements need be complied with. Probate of the will is then granted with

a blank space for the part not apparent. Thus, should the testator, for example, paste paper over the words, ink them out or otherwise erase, or even scratch out parts with a knife, so that the words are not apparent, then the obliteration will be effective. The meaning of ‘apparent’ in this context has been considered in a number of cases.153 ‘Apparent’ means apparent on the face of the will itself154 and this will include deciphering by natural means so long as there is no physical interference with the will itself. (That is, a new document cannot be created in order to read the part obliterated.) Thus in Ffinch v Combe155 slips of paper had been pasted over the words in question after the execution of the will. A writing expert was able to decipher the words underneath by holding the paper up to light with a frame of brown paper. The words were held to be apparent and similar results have been reached in cases where magnifying glasses and microscopes have been used.156 ‘Apparent’ does not mean, however, capable of being made apparent by the use of extrinsic evidence. There is a real difference between apparent and discoverable. In Goods of Itter157 slips of paper were again pasted over parts of a will. Expert evidence was given that the writing beneath the slips could only be deciphered by means of infra-red photography. The court held that the effect of the document before the attestation was not apparent.158 Similarly, the use of chemicals or the actual removal of [page 191] the slips is not permitted to make the words underneath apparent.159 The moral of this line of case law is that obliterations should be exactly that: if a testator should wish to expunge a section of the will, it should be so obliterated that there is no occasion for the courts to make enquiry whether the words obliterated are ‘apparent’. The doctrine of dependent relative revocation discussed above (see 6.10),

may have the effect of altering the general position. If the testator’s intention to revoke is conditional, revocation will not take place despite the obliteration unless that condition is fulfilled. If this is the case, then the court may use extrinsic evidence to ascertain the words obliterated, if it can, and so give effect to them. Say that a testator in a will leaves a legacy to a beneficiary of ‘One thousand dollars’. The will is duly executed, but the testator later obliterates the words ‘One thousand’ (making them not apparent) and writes ‘four thousand’ in their place. This alteration is not duly executed as required. If it can be shown that the testator only intended to revoke the old amount if the new amount is effective (which, of course, it is not) then the revocation is conditional. The condition is not fulfilled, and the original gift of ‘One thousand dollars’ is admissible to probate. To ascertain the original amount, extrinsic evidence is available.160 Of course, recourse to the doctrine of dependent relative revocation may not be necessary in these circumstances, because the general dispensing powers, discussed above in Chapter 5, will usually mean that the substituted words, even though unattested, will nonetheless be admitted as an alteration and thus will be rendered effective. It is only where such dispensing powers cannot be used that the doctrine of dependent relative revocation will now have any effect.

Effect of amendment 6.32 The general effect of the statutory provisions and their judicial interpretation, may be summarised as follows: (1) If the court is satisfied that an amendment is made prior to the execution of the will then probate will be granted of the will so amended. In other words, the alterations and interlineations are regarded as part of the original will and will not appear as such in the probated will. (2) The same principle will apply to alterations that have been duly executed in accordance with the statutory requirements after execution of the will. If not so duly executed, it may still be possible to admit the will, as altered, to probate through the dispensing powers, or through the doctrine of dependent relative revocation. If not then the alteration is of no effect, unless it amounts to an effective obliteration.161

[page 192] (3) Alterations and obliterations may be so extensive as to amount to revocation of the whole will by ‘otherwise destroying’.162 (4) An ineffective obliteration, as discussed above, will mean that the will is admitted to probate in its original form.163 An effective obliteration will result in the will being admitted to probate with the words obliterated being left blank, provided the doctrine of dependent relative revocation has no application.164

1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17. 18. 19. 20.

Succession Act 2006 (NSW) s 11; Wills Act 1997 (Vic) s 12; Succession Act 1981 (Qld) s 13; Wills Act 1936 (SA) s 22; Wills Act 1970 (WA) s 15; Wills Act 2008 (Tas) s 15; Wills Act (NT) s 13; Wills Act 1968 (ACT) s 21. Succession Act 2006 (NSW) s 11(2); Wills Act 1936 (SA) s 21; Wills Act 2008 (Tas) s 15(2). Kitcat v King [1930] P 266; In Will of Hill [1930] QWN 42. The example is taken from Birtles and Neal, Hutley’s Australian Wills Precedents, 9th ed, LexisNexis, Sydney, 2016, at [4.3] and Form 4.02. Re Wayland (decd) [1951] 2 All ER 1041. [1969] 1 NSWR 471 at 474–5. [1951] 2 All ER 1041. [1973] 2 NZLR 143. [1995] 2 VR 439. (2004) 90 SASR 119. But note Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331, where, in similar circumstances, the available evidence was not sufficient to persuade the court that the later revocation clause should be so limited. [1977] WAR 148. See also Re Tait [1957] VR 405; In Goods of Oswald (1874) LR 3 P & D 162; Will of Page [1969] 1 NSWR 471. [1893] P 62. [1977] WAR 148. Cadell v Wilcocks [1898] P 21. Dempsey v Lawson (1877) LR 2 P & D 98. See also Payten v Perpetual Trustee Co [2005] NSWSC 345 at [100]. Re Grey Smith [1978] VR 596. And see generally Geddes and Rowland, ‘Revocation by Later Will’ (1984) 58 ALJ 186; (1986) 60 ALJ 18. (1832) 1 Cl & Fin 20; 6 ER 823. Townsend v Moore [1905] P 66. If they are so inconsistent that neither can stand together, and each has a revocation clause, then they will both fail: Re Howard [1944] P 39. The judicial dispensing powers in most jurisdictions now extend to revocation of wills, so that even if the formalities are not complied with it may be possible for the writing to be declared a

21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

47. 48. 49. 50. 51. 52.

document intended to constitute a revocation of a will. See further Chapter 5 and the specific statutory provisions in 6.8 below. (1869) LR 2 P & D 40. Re Durance (1872) LR 2 P & D 406. See footnote 1, this chapter, for the equivalent statutory references in other jurisdictions. (1877) 2 PD 251 at 253. Bell v Fothergill (1870) LR 2 P & D 148. In Goods of Morton (1887) 12 PD 141. (1820) 3 B & Ald 489; 106 ER 740. (1877) 2 PD 251. Re Pepperill [1927] St R Qd 154. See, for example, Estate of Shephard (decd) (1982) 29 SASR 247. But see the special statutory provisions in some jurisdictions: see 6.8. (1871) LR 2 P & D 206. See also Re Everest [1975] 1 All ER 672. Leonard v Leonard [1902] P 243. In Goods of Dutton (1863) 3 Sw & Jr 66; 164 ER 1197. (1857) Dea & Jw 290; 164 ER 579. [1909] P 157. See also In Estate of Simkin [1950] VLR 341. See, for example, In Goods of Brassington [1902] P 1 and see Re Aynsley (The Times, February 1973) noted by Mellows, p 102. See, for example, Re Wright [1970] QWN 28 (original will torn up on untrue belief that only a copy). See generally Lippe v Hedderwicke (1922) 31 CLR 148. See Vic: s 12(2)(g); Qld: s 13(e)(ii); Tas: s 15(1)(e); NT: s 13(f). [2000] NSWSC 274 at [17]. See New South Wales Law Reform Commission Report, Wills — Execution and Revocation, Report 47, 1986. (1876) 2 PD 251. (1985) 2 NSWLR 716 at 718–19. [2002] NSWSC 561. See also Payten v Perpetual Trustee Co [2005] NSWSC 345. In the Will of Boyd; Ex parte Whelan (1959) SR (NSW) 369. The classic statement of the principle may be found in the judgment of Lord Wensleydale in Welch v Phillips (1836) 1 Moo PCC 299 at 302; 12 ER 828 at 829. There are numerous Australian authorities but see particularly McCauley v McCauley (1910) 10 CLR 434; Re Broomhead [1947] VLR 319; Re Henderson [1996] 1 Qd R 249. Unreported, SC(NSW), 13 May 1993, at [26]. Citing Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 43. See also Cahill v Rhodes [2002] NSWSC 561 at [68] per Campbell J; Finch v Finch (1867) LR 1 PD 341. [2002] NSWSC 561 at [59]. (1910) 10 CLR 434. Unreported, SC(NSW), 13 May 1993.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67.

68. 69. 70. 71. 72. 73. 74.

75. 76. 77. 78. 79.

80. 81. 82.

83. 84.

[2005] TASSC 111. See also Estate of Leon Kolecki (decd) [2011] SASC 158 per Gray J. (1959) SR (NSW) 369. (1978) 19 SASR 263. See also Re Webb [1964] 2 All ER 91 (will destroyed by act of God — enemy air attack). [2014] NSWSC 757. (2011) 120 SASR 1. There is an excellent summary of the relevant considerations to be taken into account in that case by Gray J at [15]. (2013) 10 ASTLR 365. [2016] VSC 139. At [611]. [1947] VLR 319. In Goods of Brassington [1902] P 1. In Goods of Slade (1869) 20 LT 330. [1925] P 177. The rules relating to intestacy are discussed in Chapter 10. As the law then stood in England, the wife was not solely entitled. See particularly Theobald on Wills, pp 84–5. For a recent example, see Re Sorrell [2015] SASC 68 (Execution of transfer of property by deceased, destruction of will on mistaken belief that transfer obviated need for formal will). [1953] VLR 168. See also Estate of Niven (1921) 21 SR (NSW) 702; Re Hampel [1949] SASR 232. [1905] P 42. See also Re Broomhead [1947] VLR 319. [1976] Ch 200. [1970] QWN 28. (1873) LR 3 P & D 98. [1947] VLR 319. The statutory provisions are as follows: Succession Act 2006 (NSW) s 12; Wills Act 1997 (Vic) s 13; Succession Act 1981 (Qld) s 14; Wills Act 1936 (SA) s 20; Wills Act 1970 (WA) s 20; Wills Act 2008 (Tas) s 16; Wills Act (NT) s 14; Wills Act 1968 (ACT) s 14. [1953] NZLR 487 at 490. In Estate of Wardrop [1917] P 54. Warter v Warter (1890) 15 PD 152. Re Roberts [1978] 3 All ER 225. Wills, Probate and Administration Act 1898 (NSW) s 15(1) (repealed); Wills Act 1958 (Vic) s 16 (repealed); Succession Act 1981 (Qld) s 17 (repealed); Wills Act 1992 (Tas) s 18(a) (repealed); Wills Act 1970 (WA) s 14(1) (repealed). Wills Act 1936 s 20. Wills Act 1968 s 20. NSW: Succession Act 2006 s 58, Sch 1, Pt 2(5) — 1 November 1989; Vic: Wills Act 1997 (commencement) — 20 July 1998; Qld: Succession Amendment Act 2006 (commencement — 1 April 2006) (Succession Act (Qld) s 76(2)(3)). WA: Wills Act 1970 s 14(4) — 9 February 2008; Tas: December 2008, Wills Act 2008 s 5; (no specific provisions in ACT or NT). [1936] P 43. [1941] VLR 60.

85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109.

110.

111. 112. 113. 114.

Estate of Langston [1953] P 100; Re Coleman [1976] Ch 1; Re Chase [1951] VLR 477. But cf Burton v McGregor [1953] NZLR 487. [1949] VLR 201. [1949] VLR 201 at 202. [1973] 1 NSWLR 180. [1973] Qd R 516. (1986) 6 NSWLR 60. (1986) 6 NSWLR 60 at 66. [2010] 2 Qd R 375. [1976] Ch 1. (1986) 6 NSWLR 60. There is a brief discourse by Mahoney JA of the New South Wales Court of Appeal in Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 67. [2004] NSWSC 705 at [38]–[53]. Citing Layer v Burns Philp Trustee Co Ltd [1984] NSWLR 60 at 67–8. [2004] NSWSC 705 at [53]. In the factual circumstances of that case, the requisite contemplation was found to be lacking. See also Steel v Ifrah (2013) 38 VR 186. Succession Act 2006 (NSW) s 12(3), (4). [1936] P 43. [1941] VLR 60. Wills Act 1997 (Vic) s 13(2)(a); Succession Act 1981 (Qld) s 14(2)(a); Wills Act 2008 (Tas) s 16(2) (a) (also extends to registered relationships); Wills Act (NT) s 14(2)(a). Ibid: Vic: s 13(3)(a); Qld: s 14(3)(a); Tas: s 16(3); NT: s 14(3). Ibid: Vic: s 13(3)(b); Qld: s 14(3)(b); Tas: s 16(4); NT: s 14(4). Wills Act 1936 (SA) s 20(2); Wills Act 1968 (ACT) s 20(1) (also extends to a civil partnership). Wills Act 1970 (WA) s 14(2). Wills Act 1970 (WA) s 14(3). See the discussion in Re Goods and Gillingham [1949] 2 All ER 401. The current legislative provision relating to both powers of appointment and executors/ trustees, where applicable, is as follows: Succession Act 2006 (NSW) s 12(2)(b), (c); Wills Act 1997 (Vic) s 13(2)(b), (c); Succession Act 1981 (Qld) s 14(2)(b), (c); Wills Act 1936 (SA) s 20(1) (no provision for executor/trustee exception); Wills Act 1970 (WA) s 14(1)(B) (no provision for executor/trustee exception); Wills Act 2008 (Tas); Wills Act (NT) s 14(2)(b), (c); Wills Act 1986 (ACT) s 20(2) (no provision for executor/trustee exception). Succession Act 2006 (NSW) s 13; Succession Act 1981 (Qld) s 15; Wills Act 1997 (Vic) s 14; Wills Act 1936 (SA) s 20A; Wills Act 2008 (Tas) s 17; Wills Act 1968 (ACT) s 20A; Wills Act (NT) s 15; Wills Act 1970 (WA) s 14A. This extends to termination of a civil partnership or registered relationship in the Australian Capital Territory, Queensland and Tasmania. New South Wales Law Reform Commission, Wills — Execution and Revocation, LRC 47, 1986, p 129. Reference relates to the Wills legislation in all jurisdictions: see footnote 1. NSW: s 13(1)(a). NSW: s 13(1)(b).

115. NSW: s 13(1)(b). 116. NSW: s 13(2). It would thus appear that extrinsic evidence is not available to determine that intention. 117. NSW: s 13(3). 118. NSW: s 13(4). 119. Vic: s 14(1). 120. Vic: s 14(1)(b) and (c). 121. Vic: s 14(2). 122. Vic: s 14(3). 123. Note that the Tasmanian legislation also deals with the revocation of a deed of relationship under the Relationships Act 2003 (Tas). 124. Qld: s 15(1); Tas: s 17(1); NT: s 15(3)(a). 125. Qld: s 15(1)(b), (c); Tas: s 17(2)(a), (b); NT: s 15(3)(b), (c). 126. Qld: s 15(2); Tas: s 17(2); NT: s 15(5). 127. Qld: s 15(4); Tas: s 17(3); NT: s 15(6). 128. Qld: s 15(6). 129. Tas: s 17(4); NT: s 15(4). 130. Or a civil partnership in the Australian Capital Territory. 131. SA: s 20A(1)(a); ACT: s 20A(1)(a). 132. SA: s 20A(1)(b); ACT: s 20A(1)(b) — not revoked but taken to be omitted from the will. 133. SA: s 20A(2)(a). 134. SA: s 20A(2)(b). 135. ACT: s 20A(2)(a). 136. WA: s 14A. 137. WA: s 15(2). 138. NSW: s 13(5); SA: s 20A(2)(d); ACT: s 20A(3)(a). 139. Republication of a will is further discussed in Chapter 7. 140. ACT: s 20A(2)(b); SA: s 20A(2)(c). 141. ‘Divorce’ in New South Wales, Victoria, Queensland, Tasmania and the Northern Territory. ‘Termination of marriage’ in South Australia, Western Australia and the Australian Capital Territory. 142. Vic: s 14(4). See also NSW: s 13(6); Qld: s 15(5); SA: s 20A(3); WA: s 14A(3); Tas: s 17(5); ACT: s 20A(4); NT: s 15(2). 143. Croucher and Vines, [9.35]–[9.39]. 144. Succession Act 2006 (NSW) s 14; Wills Act 1997 (Vic) s 15; Succession Act 1981 (Qld) s 16; Wills Act 1936 (SA) s 24; Wills Act 1970 (WA) s 10; Wills Act 2008 (Tas) s 18; Wills Act 2000 (NT) s 16; Wills Act 1968 (ACT) s 12. 145. There is a rebuttable presumption that alterations in pencil, if the rest of the will is written in ink, are deliberative: In Goods of Hall (1871) LR 2 P & D 256. 146. Cooper v Bockett (1846) 4 Moo PCC 419; 13 ER 365; Cinnamon v Public Trustee (1934) 51 CLR 403 at 410. 147. Birch v Birch (1848) 1 Pob Eccl 675; 163 ER 1175; Re Marryat [1969] QWN 6. 148. In Goods of Sykes (1873) LR 3 P & D 26.

149. 150. 151. 152. 153.

154. 155. 156. 157. 158.

159. 160. 161. 162. 163. 164.

In Will of Rider (1901) 27 VLR 238. (1880) 50 LJP 15. In Goods of Dewell (1853) 1 Ecc & Ad 103; 164 ER 60; Re Sanders [1944] SASR 22. See Chapter 5; see also In Estate of Kirs (1990) 55 SASR 61; James v Burdekin [1990] 3 WAR 298. Note also Wills Act 1970 (WA) s 10(3), which provides that: ‘ ‘‘apparent” means legible by the unaided eye or with the help of a magnifying lens but not otherwise.’ This provision incorporates the common law interpretation, discussed below. For a discussion of the general principles see particularly Re Adams [1990] Ch 601. In Goods of Itter [1950] P 130. [1894] P 191. See, for example, In Goods of Brasier [1899] P 36; Re O’Connor [1934] QWN 18. [1950] P 130. Note the comment by Mellows, p 114: ‘The exact scope of Re Itter is uncertain. In that case, a new document, the photograph, had been apparent not from the face of the will but the photograph. If, however, the instrument itself is examined under ultraviolet or infra-red light, and by this process it is possible to see the state of the original will, it is difficult to see why that should not be allowed in the same way as the use of a magnifying glass is.’ In Goods of Horsford (1874) LR 3 P & D 211; In Goods of Itter [1950] P 130. The relevant principles are discussed in In Goods of Itter [1950] P 130 and see In Goods of Horsford (1874) LR 3 P & D 211; In Will of Baker (1922) 39 WN (Pt 1) (NSW) 257. For an interesting recent example as to alterations and the dispensing power, see Estate of Baes [2012] SASC 217. As in Re Adams [1990] Ch 601; Re Sharland [2006] 1 Qd R 362. Soar v Dolman (1842) 3 Curt 121; 163 ER 675. In Goods of James (1888) 1 Sw and Tr 238; 164 ER 709.

[page 193]

Republication and Revival

7

Republication General 7.1 Republication of a will is the actual confirmation of the will and is a method of making the will take effect as if it had been written at the actual date of republication, and not at the date when it was in fact written. A will or codicil may only be republished in two ways: (1) the re-execution of the original will in accordance with the formalities for making a will; or (2) the making of a codicil to the will that must also be executed in accordance with the formal requirements.

The judicial dispensing powers relating to formalities, as discussed in Chapter 5, are also no doubt applicable but there appears to be no authority in respect to republication, unlike in respect to revival.1

Intention to republish 7.2 Both methods of republication require an intention to republish. In the case of re-execution, the mere fact of that re-execution establishes a presumption that the testator intended to republish.2 In the case of a codicil, it would appear that all that is needed to establish intention is some reference in the codicil to the will. The codicil need not expressly confirm the will. Thus, in Re Champion; Dudley v Champion3 the words ‘the codicil to my will dated …’ were held sufficient to indicate an intention to republish, and in Serocold v Hemming4 an instrument which was not actually described as a

codicil but was written at the foot of the will and referred to the executors in the will, was also held sufficient to indicate an intention to republish. No republication will occur, however, if there is no reference to the will at all in the instrument.5 [page 194]

General effect of republication 7.3 In Goonewardene v Goonewardene6 the Privy Council stated the general effect of republication as follows (at 650): [T]he effect of confirming a will by codicil is to bring the will down to the date of the codicil, and to effect the same disposition of the testator’s property as would have been effected if the testator had at the date of the codicil made a new will containing the same dispositions as in the original will but with the alterations introduced by the codicil.7

Statutory recognition is given to this principle in South Australia.8 It should be noted, however, that there are judicial expressions to the effect that the general principle should not be treated as a rigid or technical rule, but rather as a means of giving effect to the testator’s intentions, so that it should not be used to actually defeat those intentions.9 Thus, if the technical effect of republication is to invalidate a gift which was valid at the date of the actual will, republication of that will will not necessarily invalidate the gift, if that was not the intention of the testator.10 As Barton J stated in Re Moore:11 The authorities … lead me to the conclusion that the courts have always treated the principle that republication makes the will speak as if it had been re-executed at the date of codicil not as a rigid formula or technical rule, but as a useful and flexible instrument for effectuating a testator’s intentions, by ascertaining them down to the latest date at which they have been expressed.

Change of persons 7.4 Where the rule applies, a description of a person or persons contained in the will applies to the person or persons fitting that description at the time

of republication. So in Re Hardyman12 the will left a gift to the wife of the testator’s cousin. The testator republished the will by codicil after the death of the cousin’s wife. At the time of republication, the testator knew that the wife had died. The cousin subsequently remarried and the second wife was held entitled to the gift.13 Similarly, in Perkins v Mickelthwaite14 a testator made a gift in his will to his ‘youngest son, Joseph’. Unfortunately, Joseph died while the testator was still alive, but the testator later had another son, whom he also named Joseph. A later republication of the will meant that the ‘second’ Joseph took the gift. [page 195]

Changes in property 7.5 This is of lesser importance now that the ambulatory nature of a will in respect to property has been given statutory effect in all Australian jurisdictions. Every will is to be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator.15 The provision is subject to a contrary intention, and there are instances where a specific gift of property has been held to contain such a contrary intention. However, if the will is republished and there is a specific gift of property, it may well be that the will is brought down to the date of republication. So, in In Re Reeves; Reeves v Pawson,16 the testator, by will, left an interest in ‘my present lease’. That lease, at the time of the execution, had an unexpired term of approximately three-and-a-half years. After expiry a new lease was entered into for 12 years. A codicil was made republishing the will. The court held that because of republication the will was to be brought down to the date of republication so that the interest left in the will included the interest in the new lease. On the same footing is Re Champion; Dudley v Champion.17 There the testator devised certain lands ‘now in my own occupation’. After the will

was made the testator acquired and occupied some further land. He then republished his will by codicil and it was held that the beneficiary was entitled not only to the original land but also the land later acquired and occupied by the testator. The words ‘now in my own occupation’ were to be read as at the date of republication, that is, at the date of the codicil.

Other effects of republication 7.6 Republication may have the effect of curing defects that may otherwise vitiate a will or an interest under it. Three specific circumstances will be examined: (1) Unattested alterations. Say that a testator, after execution of a will, makes a number of alterations to that will which are not attested as required by the legislation: see Chapter 6, particularly 6.29. The testator then makes a codicil to the will which is itself properly executed and attested. The codicil has the effect of republishing the will. Republication also has the effect of validating the alterations.18 For this principle to apply, it must be established that the alteration was final and not merely deliberative, and was made before the execution of the codicil. The presumption that alterations are made after execution must therefore be rebutted.19 (2) Incorporation by reference. This doctrine is discussed in Chapter 5. It may be recalled that under the doctrine it is possible for a testator [page 196] to incorporate into a duly executed will documents that have not been properly executed. One of the conditions for the operation of the doctrine is that the document to be incorporated must be in existence at the date of execution of the will, and reference is made in the will to the document being in existence. Accordingly, if a testator makes reference in a will to an existing document, but executes a future document, there can be no incorporation. If, however, the will is republished and the document has come into existence before the date of republication, then the document may be validly incorporated. It is in existence at the date of the will (which, of course, is the date of republication) and reference is made to it in the will.20 (3) Gifts to attesting witnesses. The law relating to such gifts is also dealt with in Chapter 5, and the general rule is that a gift to the witness is void. If, however, the will is republished by a codicil, which is attested by independent witnesses, the gift will be good. This is because the will is brought down to the date of republication and at that date is witnessed by independent witnesses.21

Some limits on republication 7.7 It has already been mentioned above that a will may not be republished if to do so would be contrary to the intention of the testator. This principle may be illustrated by reference to two distinct, but related, matters: intermediate codicils and ademption/lapse. (1) Intermediate codicils. Take the following situation. In 1990 Thomas executes a will in which he leaves a legacy to Timothy. In 2000 he executes a codicil to the will expressly deleting that legacy. In 2010 he executes another codicil to the will. That codicil makes no reference to the original legacy to Timothy, but simply substitutes a new executor for the original executor. Now the general effect of republication is to bring the will down to the date of republication, but does it include the original legacy to Timothy? The answer is no, as explained by Latham CJ in Fairweather v Fairweather:22 In my opinion the true doctrine is that confirmation of a will by a codicil republishes the will, but that it republishes only so much of the will as still represents the will of the testator. It is for this reason that prima facie, that is, subject to any expression of contrary intention, the republication of a will by a second codicil does not deprive of effect a first codicil which has altered the will. It is quite true to say … that the confirmation of the will by a codicil brings the will down to the date of the codicil. But that which it brings down is the will as then operating, and not the will as it once was, but no longer is. If words contained in the will have been deprived of their operation, either by an intermediate codicil, or by events

[page 197] which have occurred before the execution of the later codicil the effect of which is in question, then the confirmation of the will operates only to repeat so much of the will as was effective at the date of the later codicil … As the judgment makes clear, the principle is subject to a contrary intention. To establish that, it would need to be shown that the testator intended to revoke the first codicil and thereby to set up the will unaffected by the codicil. Express words would usually be necessary here.23 (2) Ademption/lapse/satisfaction. These doctrines are more fully considered in Chapter 9. Ademption occurs when a gift in a will no longer exists at the time when the will comes into effect; lapse concerns the situation where an intended beneficiary dies before the testator; and the equitable doctrine of satisfaction provides for substitution of legal obligation in certain circumstances. Republication of a will has no effect on these doctrines, so that if property has been adeemed, for example, republication cannot reinstate the original gift: ‘The codicil can

only act upon the will as it existed at the time; and, at the time, the legacy revoked, adeemed or satisfied formed no part of it.’24

Revival General 7.8 Australian jurisdictions have provisions relating to revival which stem from the Wills Act 1837 (UK) s 23. Thus the New South Wales legislation provides as follows: (1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part. (2) A revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked. (3) Subsection (2) does not apply if a contrary intention appears in the reviving will. (4) A will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived.25

There are some minor differences in the legislation cited, but they are of no specific consequence. Accordingly, a will may only be revived in the same ways as republication, either by re-execution or by a properly executed will or codicil. Fundamentally, revival of a revoked instrument will not take place from the revocation of the actual revoking instrument. [page 198] Thus, if a testator should make a will in 2010 and makes a new will in 2011 that wholly revokes the 2010 will, a revocation of the 2011 will will not operate to revive the 2010 will. An intestacy will then result.26 In order for a revival to take effect, the revoked will must be physically in existence at the date of the reviving instrument. A will that has been revoked by being destroyed therefore is not capable of being revived. Thus in Rogers v Goodenough27 a will was made in 1858 and another in 1859. The will of 1858

was then destroyed and a codicil was later made in terms purporting to be a codicil of the 1858 will. The court held that the 1858 will could not be revived as it was no longer in existence as a written instrument.

Intention to revive 7.9 If the revival is in the form of re-execution of the actual instrument to be revived, then that re-execution will obviously show the necessary intention to revive. If the revival is by codicil, then the intention to revive must appear on the face of the codicil so that direct evidence of the testator’s intention is not admissible. The test is that stated by Sir J P Wilde in Re Steele’s Goods: … the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and imparting an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the court, with reasonable certainty, the existence of the intention in question.28

In accordance with this dictum, mere reference in a codicil to a former will may not be sufficient to revive that will (unlike in the case of republication); more is required, such as an express confirmation of the will or other statements in the codicil that make the intention clear.29 In establishing intention, extrinsic evidence of the testator’s actual intentions is not admissible, but the actual circumstances surrounding the execution of the codicil may be ascertained. These principles are best illustrated by a number of authorities.30 In Estate of Horne,31 Mrs Horne made a will in 1911 disposing of the whole of her estate. In 1913 she made another will also disposing of the whole of her property. In 1918 she executed a codicil that was engrossed as an endorsement on the first will. The codicil substituted a new executor for an executor in the 1911 will, but who was not an [page 199]

executor of the 1913 will. While the court acknowledged that the mere fact that the codicil was written on the same paper as the earlier will was not sufficient to indicate an intention to revive,32 the contents of the actual codicil did indicate that intention. In this case, the reference to the executor was sufficient, so that the 1911 will was revived and admitted to probate with the codicil. An interesting example is also provided by In Estate of Brian.33 There the testator made her first will in February 1969, with her son as executor. In August 1969 she executed another will, which contained a general revocation clause, in which she appointed her grandson executor. The beneficial dispositions in both wills were basically the same. In 1970 she executed a codicil, which was endorsed on the first will which revoked all former wills and appointed her son executor. The codicil was referred to therein as ‘the codicil to this will’. Hutley JA admitted extrinsic evidence of the surrounding circumstances to resolve the ambiguity created by the above words. This included evidence to the effect that the testator had formed the view that her son did not want to be executor, but later learnt that he had no objection to so acting. The words ‘this will’ applied to the first will and the attendant circumstances indicated an intention to revive that will, and the first will and the codicil were admitted to probate. In Goods of Davis,34 the testator made a will that benefited a woman to whom he was not then married. He subsequently married her. As has been pointed out above (see Chapter 6), the effect of that marriage was to revoke the will. After the marriage he endorsed on an envelope containing the will a statement in the following terms: ‘the herein named Ethel Phoebe Horsley is now my lawful wedded wife’. This statement was signed and attested. The court held that this showed a sufficient intention to revive, evidence being admitted as one of the attendant or surrounding circumstances that a sister of the testator’s wife had pointed out to him that his marriage had revoked his existing will. More recently, an attempt to apply the revival doctrine failed in Re Estate

of Denger (decd).35 There the testator executed a will in 1993 appointing two partners of a legal firm who had drawn up the will as executors. In 1998, she executed a new will which changed the beneficiaries and appointed the Public Trustee as executor, and which specifically revoked the 1993 will. In 1999, the firm of solicitors who drew up the 1993 will wrote to the testator to inform her that due to a change of partners in the firm, changes would be needed to the 1993 will. A codicil was signed by the testator to this effect in 2000. It was held that the testator signed the codicil by mistake, not understanding its legal significance and regarding it as a procedural administrative matter and therefore there was no intention to revive the 1993 will. [page 200]

Effect of revival 7.10 As in the case of republication, the will that is revived takes effect as if it had been made at the actual date of revival. As a consequence, revival may validate an unattested alteration made to a will before the revival, can incorporate documents not in existence when the will was first executed and may save a gift to an attesting witness: see 7.6 above. The effect of revival on any intermediate wills depends basically upon the terms of the first will, which is revived, and also on the terms of the reviving codicil. Say that in 2000 Richard makes a will and in 2002 executes another will that revokes the 2000 will. In 2004 he executes a codicil that revives the 2000 will. If the 2004 codicil expressly revokes the 2002 will, then there is no problem: probate will be granted of the 2000 will and the codicil. If the 2004 codicil does not expressly revoke the 2002 will, but the 2000 will contains an express revocation clause, then the same result will be reached: the effect of revival is to bring the will down to the date of revival, so that the 2000 will is deemed to have been made in 2004 and the revocation clause contained within it will thus revoke the 2002 will.36 If neither the 2000 will nor the 2004

codicil contains revocation clauses, then the 2002 will will be valid to the extent that it is not inconsistent with the other testamentary instruments. If totally inconsistent, no probate of that will can be granted, but if partially consistent, or where there may or may not be implied revocation, all three documents are admitted to a grant of probate, leaving the precise effect to be determined by a court of construction.37 Finally, it should be noted that it is possible for part only of a will to be revived. An intention to revive that part only must be shown for this to occur.38

Revival and judicial dispensing powers 7.11 The relationship between the doctrine of revival and judicial dispensing powers, considered above in Chapter 5, was considered by the Supreme Court of New South Wales in Trickey v Davies.39 In that case the testator made a will leaving his property to his four daughters of his first marriage. His first wife having died, he later remarried. Normally, as was seen in Chapter 6, that marriage would have operated to revoke the will. It was argued, however, that because of the judicial dispensing power contained in s 18A of the New South Wales Act,40 the doctrine of revival operated so that the will should be admitted to probate. The requirements of s 19 of the same Act41 had clearly not been complied with, there having been no re-execution of the will or any codicil showing an intention to revive, but the testator did not [page 201] appreciate the fact that his marriage had revoked the will and later undertook various activities which showed that he still intended the will to operate. It was held that the dispensing power could not assist in these circumstances. Mere statements referable to the revoked will, or other conduct not involving

some physical dealing with the revoked will, could not satisfy the requirements of s 19 and could not be given effect to under the judicial dispensing power. The dispensing power requires an informal document and without it there was no scope for revival. This suggests, however, that if there is such a document in existence, for example, an unexecuted or unwitnessed codicil showing an intent to revive, then the dispensing power may be called upon to establish revival, in that the formalities relating to the codicil may be disregarded. Thus in In the Estate of Lynch (decd)42 for example, the testator made a will and later married. Again, she did not appear to realise that the marriage revoked the will. She later crossed out her own name on the will and wrote in her new married name, initialling this alteration. It was held that the alteration made by the testator sufficiently disclosed an intention that the document should constitute her last will, so that the document could be admitted to probate under the judicial dispensing power of South Australia. More recently, the matter has been considered by White J of the New South Wales Supreme Court in Slack v Rogan.43 There a testator made a will in 2003, which substantially benefited her nephew. In 2007, she made a later will revoking all previous wills and leaving her estate to her grandchildren, and probate of that will was granted shortly after the testator’s death. The nephew sought revocation of that grant on the basis that the 2007 will had been revoked by a further document signed by the testator in 2008. That document essentially confirmed the 2003 will in favour of the nephew, and was signed by the testator but only witnessed by one person, and not two as required by the formalities. In an extensive review of the authorities, including Trickey v Davies44 and In Estate of Lynch,45 and the relevant statutory provisions, his Honour held the dispensing power in s 846 applicable, so that the will had been revived, even though not executed in compliance with the strict formalities. Probate of the 2007 will was revoked accordingly.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

See 7.11 below. The presumption may, however, be rebutted: Dunn v Dunn (1866) LR 1 P & D 277. [1893] 1 Ch 101. (1758) 2 Lee 490; 161 ER 415. Re Smith (1890) 45 Ch D 632; In Will of Eteson (1927) 28 SR (NSW) 119. [1931] AC 647. See also Re Fraser [1904] 1 Ch 726 at 734. Wills Act 1936 s 3(2). See, for example, Re Hardyman [1925] Ch 287 at 291; Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135 at 147. Re Heath’s Will Trusts [1949] Ch 170. [1907] 1 IR 315 at 318. [1925] Ch 287. If there had been no republication by codicil, the gift would have lapsed: see Chapter 9. Note also that other general statutory provisions may affect this general principle: Re Queain; Maher v Maher [1967] SASR 124 noted in (1970) 42 ALJ 186. (1714) 1 P Wms 274; 24 ER 386. Wills Acts: NSW: s 30; Vic: s 34; Qld: s 33E; SA: s 27 (and see the discussion in Chapter 8); WA: s 26(1); Tas: s 44; ACT: s 24; NT: s 29. [1928] Ch 351. [1893] 1 Ch 101. See also In the Will of Sargood; Trustees, Executors and Agency Co Ltd v Sargood (1904) 26 ALT 51. In Will of Eteson (1927) 28 SR (NSW) 119 at 122; In Goods of Heath [1892] P 253. See generally In Goods of Heath [1892] P 253. In Goods of Lady Truro (1866) LR 1 P & D 201. Anderson v Anderson (1872) LR 13 Eq 381. (1944) 69 CLR 121 at 134. The matter is discussed in Green v Tribe (1878) 9 Ch D 231. Powys v Mansfield (1837) 3 My & Cr 359 at 376 per Lord Cottenham; 40 ER 964 at 971. For an example, see Fairweather v Fairweather (1944) 69 CLR 121. Succession Act 2006 (NSW) s 15. Note that a will also includes a codicil; s 3(1). See also Wills Acts: Vic: s 16; Qld: s 17; SA: s 25; WA: s 16; Tas: s 19; ACT: s 22; NT: s 17. The doctrine of dependent relative revocation discussed in Chapter 6 may have effect here. If the doctrine does apply, the 2011 will will not be revoked: see Powell v Powell (1866) LR 1 P & D 209. (1862) 2 Sw & Tr 343; 164 ER 1028. (1868) LR 1 P & D 575 at 578. McLeod v McNab [1891] AC 471. In that case it was held that the mere annexation of a codicil to a revoked will was insufficient. Apart from the cases discussed in the text see also In Will and Codicil of Littlejohn (1952) 69 WN (Pt 1) (NSW) 129; Re Killick [1960] VR 98; Re Dear [1975] 2 NZLR 254. (1920) 20 SR (NSW) 531. See, for example, In Goods of Snowden (1896) 75 LT 279; Marsh v Marsh (1860) 1 Sw & Tr 528;

33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

164 ER 845. [1974] 2 NSWLR 231. [1952] P 279. [2002] TASSC 70. Re Pearson [1963] 3 All ER 763. In Goods of Stedham (1881) 6 PD 205. In Estate of Mardon [1944] P 109. (1994) 34 NSWLR 539. Wills, Probate and Administration Act 1898 (NSW). See now Succession Act 2006 (NSW) s 8. See now Succession Act 2006 (NSW) s 15. (1985) 39 SASR 131. (2013) 85 NSWLR 253. (1994) 34 NSWLR 539. (1985) 39 SASR 131. Succession Act 2006 (NSW).

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Construction of Wills

8

Introduction The problem 8.1 Wills are often made in which the meaning of the words contained within them is unclear. For example, the testator by a will makes a gift to ‘my son James’. The testator has two sons called James. To which James does the testator refer? Alternatively, the gift may be made to ‘The Wilderness Society’ and it appears that there are a number of societies with that name. Again, to which particular society was the testator referring? There may be doubt about the actual property of which the testator is purporting to dispose. The will may make a gift of ‘my house in Wardellor Avenue’ and it turns out that the testator owned two such houses situated in that avenue. A gift may be made in a will of ‘all my personalty to Sarah’; a later clause in the same will leaves a gift of the testator’s paintings to Isaac. Does the gift of personalty include the paintings? There may be a gift in a will ‘to my male descendants’. Does this refer only to those descendants from the exclusively male line, or may it encompass males descended through females as well as through males? These are just some of the examples of the problems that may occur, and naturally there is a considerable body of case law concerning the principles to be applied in construing wills. Before examining those principles, however, a number of preliminary points need to be made.

Courts of probate and courts of construction 8.2 In all Australian jurisdictions, the Supreme Courts of the states and territories act as both courts of probate and courts of construction, but a clear distinction is made between each function. The reason for this is mainly historical. The ecclesiastical courts, which once had jurisdiction over both probate and construction, were in later times limited to the probate function, and the Court of Chancery became the accepted court of construction. Fundamentally, this meant that different judicial attitudes developed, many of which have continued today. The most important of these, as will be seen, relates to the admissibility of extrinsic evidence of the testator’s intention. In general, such evidence is admissible in the court of probate in the exercise of its functions, but in a court of construction admissibility is severely limited: see 8.23 below. [page 204] The function of a court of probate is to determine the validity of a will. Matters such as whether the document produced for probate is a will, whether the testator had capacity to make the document a will, whether the document is in the proper form and whether the document is the last will of the testator are all matters properly determined by a court of probate and not a court of construction. Once probate of the will has been granted, however, the personal representatives, or others who may have an interest, may apply to the court of construction to raise matters of construction of the will so admitted to probate. The probate court itself therefore does not, in general, consider matters of construction.1 The function of the court of construction is to examine the contents of the will that has been admitted to probate and to discover the intention of the testator from that context.

Rules of construction 8.3 If the testator makes his or her intentions clear from the words of the will then there is, of course, no need to resort to rules of construction. If, however, a court of construction cannot deduce those intentions, there have been developed, over the years, certain rules of construction that may assist the court in construing the will. Unfortunately, the terminology is misleading — the ‘rules’ are not rigid rules of law that are binding on the testator, but rather principles of construction, to be applied only in the absence of a contrary intention. While the advantage of such rules to a drafter of a will is obvious, giving some certainty to the words employed, in many of the earlier cases the rules were in fact treated as almost being rigid rules of law, and in some cases were applied contrary to the testator’s intentions.2 More recent decisions have, however, adopted a less sacrosanct attitude to the rules of construction. Typical is the comment of Harman LJ in Re Henderson’s Trusts: Our predecessors at the Chancery Bar were much preoccupied with the construction of wills and in exploring that difficult country they were apt to leave signposts at the corners of the tortuous lanes with which it abounds. These signposts they called rules of construction and their perfect resting place is in MR Hawkin’s classical volume entitled A Concise Treatise on the Construction of Wills these rules were household words; they came trippingly off the tongue; but our generation … have been less acquainted

[page 205] with them … partly because in the changing temper of opinion judges have been putting the search for a nicer justice above the certainty which observance of the rules supplies.3

The leading modern authority on this area of law is the House of Lords decision in Perrin v Morgan.4 That case was particularly concerned with the meaning of the word ‘money’, and is considered below in that context (see 8.9), but there are statements of principle on the rules of construction in the judgments that are apposite to construction of wills generally. The following extract from the judgment of Lord Romer, while lengthy, is worth setting out in full (at 420–1):

My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said — that he was, in fact, one of those persons of whom Knight Bruce LJ said that they spoke as if the office of language were to conceal their thoughts. In many of the cases to be found in the books the court is reported to have said that the construction it has put on a will has probably defeated the testator’s intention. If this means, as it ought to mean, that the court entertains the strong suspicion to which I have just referred, no sort of objection can be taken to it, but if it means that the court has felt itself prevented by some rule of construction from giving effect to what the language of the will, read in the light of the circumstances in which it was made, convinces it was the real intention of the testator, it has misconstrued the will. My Lords, I do not, of course, intend to suggest that well-settled rules of construction are to be disregarded. On the contrary, I think that they should be strictly observed, but they ought to be applied in a reasonable way. It is, no doubt, of great importance to lawyers and others engaged in the preparation of wills that they should have the certainty of knowing that certain well-known words and phrases will receive from the court the meaning that the court has for generations past attributed to them. Much confusion and uncertainty would be caused if this were not so. The rules of construction, in other words, should be regarded as a dictionary by which all parties, including the courts, are bound, but the court should not have recourse to this dictionary to construe a word or a phrase until it has ascertained from an examination of the language of the whole will, when read in the light of the circumstances, whether or not the testator has indicated his intention of using the word or the phrase in other than its dictionary meaning — whether or not, in other words, to use another familiar expression, the testator has been his own dictionary. I have thought it desirable to make these remarks, however elementary and obvious they may seem to be, as I have noticed in some of the reported cases on wills a tendency on the part of the court to pay more attention to the rules of construction than to the language of the testator.

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General principles of construction Expressed intention of the testator 8.4 The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the

testator intended. The question is not, of course, what the testator meant to do when he or she made his or her will, but what the written words he or she uses mean in the particular case — what are the ‘expressed intentions’ of the testator.5 It is clear from this that since every will, except privileged wills, must be in writing, the meaning of the will must be discovered from that writing itself. Only in very limited circumstances may the court admit extrinsic evidence: see 8.23 ff. If a court was able to enquire as to what the testator meant to do when the will was made, the requirement that a will be in writing could become, in Mellows’ terms, an ‘empty formality’.6 Further to this principle is the fact that the court, in construing a will, is not permitted to remake a will. It may well be that, by re-writing, a more rational or logical will may result, but that is not the court’s function, which is to give effect to the disposition actually made in the will.7 Nor is it permissible for a court of construction to determine the intention of the testator by guesswork — that intention must be ascertained from the written words and the surrounding circumstances where admissible.8

Will as a whole to be construed 8.5 The testator’s intentions are to be ascertained from the whole of the will and not simply by looking at that part of the will where there is doubt as to meaning. In Fell v Fell,9 Isaacs J authoritatively stated the principle as follows: The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. (Emphasis added)

Obviously, by construing the whole of the will, other provisions may have the effect of throwing light on the meaning of the particular part that is specifically being considered. Thus, it may be possible, by construing the will as a whole, to resolve ambiguity in a word or phrase used or even to rebut the

presumption in favour of the ordinary (see 8.6) or technical (see 8.10) meaning of the words used. In other words, a word or a phrase that is quite clear otherwise may not have that effect when considered in [page 207] the light of the will as a whole.10 The testator may have supplied his or her own ‘dictionary’: see 8.7 below.

Usual or ordinary meaning rule 8.6 The basic principle is that a word or a phrase in a will is given its usual or ordinary grammatical meaning: [T]he general rule, we believe, is undisputed, that, in trying to get at the intention of the testator, we are to take the whole of the will, construe it altogether, and give the words their natural meaning …11

As Theobold points out,12 the rule is sometimes called the ‘literal’ or ‘golden’ rule, with the ordinary meaning sometimes referred to as the ‘primary’, ‘strict’, ‘literal’ or ‘natural’ meaning. Whatever terminology is employed, the general intent is clear. The ordinary meaning is to be given to words and phrases used by the testator, unless there are indications that the testator used that word or phrase in a different sense to the ordinary meaning, or the ordinary meaning makes no sense in light of the surrounding circumstances, but secondary meanings do make sense: see 8.7 below. The ordinary meaning will prevail even if the ultimate result may appear eccentric or capricious; this is because a testator is entitled to be exactly that in the making of testamentary dispositions: Many a testamentary provision may seem to the world arbitrary, capricious, and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.13

If the meaning of a word or phrase has changed over the passage of time, the ordinary meaning is to be ascertained at the time the will is made.14

Secondary meanings: dictionary principle 8.7 The usual or ordinary meaning rule may be displaced, and a secondary meaning given to a word or phrase in the will, if, in construing the whole will, it appears that the testator used that word or phrase in a different sense from its usual meaning. The testator might, for example, expressly supply his or her own ‘dictionary’ in the will itself — there may well be a definition clause clearly articulating that certain words or phrases are to be given a meaning that is not the usual meaning. If so, then clearly effect will be given to the meaning supplied by the testator. Thus, if a testator should expressly state in a clause of the will that ‘in this will all references to motor vehicles shall include boats’ the usual meaning of motor vehicles will be displaced by the secondary meaning [page 208] given by the testator.15 More commonly, however, there will be no express definition clause; but on the reading of the words in the context in which they appear, it is sufficiently clear that the words or phrases used by the testator are used in a particular sense that is not the usual or ordinary sense. Again, effect will be given to the particular sense used by the testator.16 Many cases on this area have been concerned with the meaning of the term ‘children’, the normal or usual meaning given to that term being limited to legitimate children. Prior to statutory intervention17 abrogating the distinction between legitimate and illegitimate children, the dictionary principle was often used to show that the testator meant the word ‘children’ to be used in the secondary sense, as including illegitimate children.18

Secondary meanings: surrounding circumstances 8.8 This principle is really part of the so-called ‘armchair principle’, which is discussed further below in the context of extrinsic evidence: see 8.23. It will

be seen, in discussion of the armchair principle, that a court of construction is entitled to take into account all the circumstances surrounding the making of the will and the circumstances actually known to the testator when the will was made. In the light of those circumstances, it may be clear to the court that a testator used a word in a sense other than the usual sense. If so, the secondary meaning will be given to that word. For example, the testator, a Mr Gould, makes a will, leaving a gift of ‘all my property to my wife, Mary Jane Gould’. On his death, it is discovered that the testator left a lawful wife, by the name Elizabeth Jane Gould but had also ‘married’, bigamously, one Mary Jane Moore. Mary Jane Moore had lived with the testator until his death, and believed herself to be the lawful wife of the testator. She was reputed to be the testator’s wife in the neighbourhood in which they lived before the testator’s death. It is likely that in these circumstances, considering the surrounding circumstances, the court would construe the words ‘my wife’ in the will in the secondary meaning or sense as ‘my reputed wife’, depending of course on the actual provisions of the will read as a whole.19 A more recent application of the principle is provided by the decision of the Full Court of the Supreme Court of Tasmania in Hopwood v Cuthbertson.20 There the court upheld the decision of the trial judge in the unusual circumstances where a testator left his entire estate to his four grandsons in equal shares, naming one of them as ‘Len Hopwood’. [page 209] The testator had in fact neither children nor grandchildren, but had raised a nephew as his own, and the issue of that nephew were the beneficiaries. Unfortunately, it appeared that the drafter of the will had mistakenly named one of the beneficiaries as ‘Len Hopwood’ but it was common ground that there was no person known as ‘Len Hopwood’. One of the beneficiaries, however, was named Lynn Hopwood. Reading the will as a whole, and

looking at the attendant and surrounding circumstances, it was held that the ordinary names of the relevant words did not make sense, but the secondary meaning, that is that the testator intended to benefit ‘Lynn Hopwood’, did. This was the only reasonable explanation.

Words with more than one usual meaning 8.9 Quite often, a word or a phrase may have more than one ordinary or usual meaning. A common example is the use of the words ‘money’, or ‘stocks and shares’. In regard to money, the words of Goulding J in Re Barnes’s Will Trusts21 are instructive: [T]he use of a word like ‘money’ varies between persons of different classes, possibly between different parts of the country, certainly in the mouth of one and the same individual under differing circumstances, and a judge would need to be more of a philologist than I am to feel confident in relying in all cases on his own knowledge of the contemporary use of the English language.

It is obvious that the ‘usual or ordinary meaning rule’, discussed above, can have no relevance in these circumstances. The solution utilised by the courts of construction is to adopt the meaning of the word that is most probable in the context of the particular will in question and the surrounding circumstances of the case. In reality, such a ‘rule’ leaves considerable discretion to the court in deciding the testator’s true intentions. Care should be therefore taken here in relation to precedents, as much will depend upon the construction of the individual will in question. Conversely, of course, as has often been pointed out,22 some words have, over the course of time, acquired a precise legal meaning as a result of decisions by courts applying the ‘rules’ of construction. The word ‘money’ itself, for example, once had a strict and technical meaning, restricted to coins of the realm and debts due, but the more modern decisions23 have moved away from a strict reliance on these precedents, and have been prepared to look at the particular term used in the light of the context of the will in question and the surrounding circumstances, so that the word ‘money’ no longer appears to have any prima facie meaning. In Re Barnes’s Will Trusts,24

for example, the court was faced with a will that contained a gift of ‘my money’ and a residuary gift of ‘any other personal property’, so that it was necessary to determine [page 210] what was encompassed by the gift of money. It was held that balances in accounts with a bank and a building society clearly came within the gift, but it was also held that premium savings bonds also were included. The court put itself in the position of the testator, who was a small trader, and decided that the testator would have used the term ‘money’ to apply to the bonds. Viscount Simon LC in Perrin v Morgan25 took a similarly wide view: In the case of an ordinary English word like ‘money’, which is not always employed in the same sense, I can see no possible justification for fixing on it, as the result of a series of judicial decisions about a series of different wills, a cast-iron meaning which must not be departed from unless special circumstances exist, with the result that this special meaning must be presumed to be the meaning of every testator in every case unless the contrary is shown … the word ‘money’ has not got one natural or usual meanings. It has several meanings, each of which in appropriate circumstances may be regarded as natural …

The wide approach may also be seen in decisions other than those dealing specifically with money. Thus in Lutheran Church of Australia South Australia District Inc v Farmers Co-Operative Executors and Trustees Ltd,26 the High Court was required to construe a gift in a will of ‘all my Commonwealth Bonds’. The court held that the expression ‘Commonwealth Bonds’ was not a technical term and had no strict primary meaning, the gift being construed to include all the investments in Commonwealth loans, including treasury bonds and inscribed stock, which the testator held at death. And in Re Purnchard’s Will Trusts27 the words ‘stocks and shares’ were construed to include all the testator’s investments as it was apparent from the will and the surrounding circumstances that the testator wished to dispose of all of the estate.

Technical words and phrases 8.10 If a testator should use words that have a technical legal meaning, then prima facie that meaning will be given to the words so used.28 As was stated in Re Harcourt: [W]hen a testator has used words which have acquired a definite meaning in conveyancing and have for a long time been used in the drafting of wills and settlements and other like documents with that meaning, it requires a very strong case to justify their interpretation in a different sense.29

This ‘rule’ will also apply, even if the will is drafted not by a lawyer, but a lay person,30 but it may be easier to show that the testator’s intentions were otherwise in the latter case and a greater degree of latitude may [page 211] be allowed. As in the case of the ordinary meaning rule, it is possible to show that the testator actually used the word in a sense other than the technical sense, either through the dictionary principle or in the light of surrounding circumstances, but as stated above in Re Harcourt31 a very strong case must be made out here. Technical words do not, of course, need to relate to technical legal terms. Similar principles will apply in the case, for example, of technical scientific terms.32

Custom 8.11 A testator may belong to a special group of persons, usually a trading or a religious group. In the will, words are used which have a special meaning within that group. A court of construction will give effect to that special meaning, even though the words used may be given a different meaning in ordinary language. Thus in Shore v Wilson,33 the testator was a member of a particular religious sect and used the words ‘godly persons’ in the will. The court held that the words should have the meaning that was current among members of that sect.

Omissions 8.12 It is often the case that a testator accidentally omits words from a will. Technically, a court of construction is unable to insert the omitted words, evidence as to the omission not being admissible. Nevertheless, the will must be construed as a whole, and in interpreting clauses or words therein, a court of construction may read in words by necessary implication. As Barwick CJ pointed out in Butlin v Butlin: The occasions when a court supplies words when it is clear that words have been omitted, whether single words or words in the form of a sentence importing an additional provision into the will, are all, in my opinion, occasions for the discovery of a necessary implication, for a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived to be by, the testator. In supplying the omitted words or the omitted gift, where it is certain that there has been an omission, it is the disclosed intention, expressed or necessarily implied in what he has said, that is the only relevant factor. The court is not authorised to supply the gift he might reasonably have made but the gift he has indicated that he did actually intend to make …34

The decision of the High Court in Fell v Fell35 provides a good example of this implication. In that case, a clause in the will of the testator provided ‘I give devise and bequeath unto’ and then named 11 separate beneficiaries. The will also appointed two named executors, [page 212] but unfortunately omitted to make mention of the testator’s property, which was presumably to be disposed of under the will. It was held that the whole of the testator’s estate was to pass to the named beneficiaries in equal shares, that being the necessary implication. There are numerous other authorities,36 but all emphasise that before implication by this means may take place, the court must not only be satisfied that it is apparent that there has been an omission, but must be able to state with quite strong certainty what that actual omission was. Conjecture is not sufficient. Further, and depending on the factual circumstances, there is

obvious scope for a rectification suit rather than a construction suit in these cases.

Undesigned insertions: ignoring words 8.13 On similar principles to those discussed directly above in relation to omissions in wills, a court of construction, in interpreting clauses or words in a will, may ignore certain words to give effect to the testator’s true intentions. In the oft-quoted words of the Privy Council in Towns v Wentworth: When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified …37

Thus in Smidmore v Smidmore38 the court was faced with a will that contained within a clause the following words: … upon trust for such child or children of my said sons respectively as shall attain the age of twenty one years and such child or children of each of my said sons respectively dying under the age of twenty one years as shall attain that age or die under that age leaving issue …

It was held that the words ‘attain that age or’ were to be rejected as having been inserted by inadvertence.

Changing and transposing words 8.14 Again, to give effect to the testator’s intentions, it may be necessary for a court of construction, in construing the will, to either change certain words or to transpose them. A typical example is where a testator uses the word ‘and’ when what is really meant is ‘or’ — and vice versa. Most commonly, this may occur when there is a gift over after a life interest. A neat example is provided by Aboud v Aboud39 where a testator left his estate to trustees upon trust for his wife for life, with remainder on trust for his children living at the date of his death or his [page 213]

wife’s death, whichever the later. A further substitutional clause read as follows: ‘Provided always that should any child of mine predecease me and my wife leaving a child or children him or her surviving’ that child or children would take. A strict reading of the substitutional clause would mean that if a child actually survived the testator but died before the wife leaving a child, that child could not take the gift. Accordingly, it was held that the words in the substitutional gift ‘predecease me and my said wife’ should be construed as ‘predecease me or my said wife’, which gave effect to the testator’s actual intentions. Similarly, in Tatham v Huxtable40 a residuary gift was in the following form (at 644): I hereby authorise my Executor … to distribute any balance of my real and personal estate to the beneficiaries … in addition to amounts already specified, or to others not otherwise provided for who in my opinion have rendered service meriting consideration by the Testator.

The High Court was prepared to construe the clause by substituting the word ‘his’ for the word ‘my’ as, on a construction of the will as a whole, the testator obviously intended that he was not referring to his own opinion, but rather that of the executor.41

Subsidiary principles of construction General 8.15 Apart from the general principles of construction discussed above, a court of construction quite often has regard to other, subsidiary, principles to determine the intention of the testator as expressed in the will. These may be of assistance, for example, in ascertaining the usual meaning of the words used, so that they are generally subsidiary to the main principles of construction. There are a number of such principles that require discussion.

Golden rule: avoidance of intestacy 8.16 It is an oft-stated principle that a court of construction will endeavour to adopt a construction that will not lead to an intestacy: ‘the mind never

inclines towards intestacy; it is a dernier resort in the construction of wills.’42 Lord Esher MR in Re Harrison43 expressed the principle as follows: Where a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce — that he did not intend to die intestate when he had gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy.

[page 214] This principle is often expressed as the ‘golden rule’. Obviously, it can have no application if the words the testator uses are clear and those words naturally lead to an intestacy. However, if there are two possible constructions, one of which would lead to an intestacy, and the other to testacy, the construction avoiding intestacy will be preferred. In Fell v Fell,44 discussed above (see 8.12), it will be remembered that the testator named beneficiaries and executors in the will, but omitted to make mention of the property to be disposed of under the will. In holding that the omitted gift should be supplied by implication, one of the principles the High Court relied upon was the rule against intestacy. Thus Isaacs J stated as follows: To create a complete intestacy would be openly opposed to the intention of the testator, and I think that should not be done by the Court if at all avoidable. All reasonable inference points, as I think, in the direction of avoiding the intestacy, and adhering to the same implication with regard to the legal estate vested in executors as to the intended beneficial estate vested in the named objects.45

The principle: ‘ut res magis valeat quam pereat’ 8.17 This is superficially similar to the golden rule, in that it means that it is better to lean towards a construction of a will that preserves rather than destroys. As explained by Lord Brougham LC in Langston v Langston,46 however, this principle applies not so much where there may be two rival constructions of the same words in the will, but rather where a more liberal

construction than a literal one would keep alive the instrument and continue to give effect to the intention of the testator. The principle is really part of the larger principle that the court of construction may supply, omit, change or transpose words in a will to give effect to the testator’s true intentions: see 8.12 ff above.

The principle: ‘falsa demonstratio non nocet, cum de corpore constat’ 8.18 Where the description of property or persons in a will is made up of more than one part, and one part is true, but the other part is false, this principle enables the court of construction to reject the false part, so that it will not invalidate the gift. For the principle to apply the court must be satisfied, with the assistance of admissible extrinsic evidence where necessary (see 8.23 below), that the true part describes the property or persons with sufficient certainty. In other words, the false part of the description is discarded, and the true part given effect. [page 215] Day v Trig47 is an old example of the use of this principle in relation to description of property. There the testator made a gift of ‘all my freehold houses in Aldersgate Street’. Part of this description was true in that the testator held houses in that street, but part was false, in that the houses were leasehold and not freehold. The leasehold houses thus passed under the will. Similarly, in Re O’Mullane,48 a testator made a gift of bonds that were described in the will as being in the custody of a bank in Swanston Street. It was later discovered that the testator held the bonds, but they were in custody not in the bank in Swanston Street, but in another branch of the same bank in Elizabeth Street. Again, the bonds passed under the will.49 In regard to description of persons, there are numerous cases.50 In Re O’Mara,51 for

example, the testator made a gift of his residuary estate to be shared ‘One half equally among my cousins, Ellen O’Mara, Phoebe O’Mara, and Mary O’Mara …’. The testator had no cousins of the first names mentioned. Evidence was admitted to the effect that the testator was on excellent terms with the plaintiffs in the action, who were his only female cousins in Australia, and who were respectively named Margaret O’Mara, Annie O’Mara and Bridget O’Mara. The gift was held effective to pass the estate to the plaintiffs. It would appear that the falsa demonstratio principle will also apply to the case where the whole description is in fact wrong. Thus in Re Gifford52 a gift was made in a will of ‘my war bonds’. When the will was made no war bonds were held by the testator, but some 10 years previously the testator’s war bonds had been converted into consolidated inscribed stock. Under the principle, the stock passed under the gift. Care should be taken here, however,53 as the principle will only be applied where the context of the will and the surrounding circumstances show without doubt what the testator actually meant.54 The final point to note in regard to the falsa demonstratio principle, is that it is subject to another principle to the effect that descriptive words may not be rejected as giving a false description if those words can be read as words of restriction. The leading authority on this point is Wrightson v Calvert55 where the testator made a gift to ‘A’s two grandchildren. They live near G’. A had in fact three grandchildren, not two, but only two lived near G, and it was held that only those two were entitled, the grandchild not living near G being excluded. The words of description were regarded as restricting the gift. [page 216]

Ejusdem generis 8.19 It is a general rule of construction that, where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as

the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.56 If, therefore, in a will the testator refers to a class of property or persons, and then follows that with much more general words, the general words may be restricted by the prior narrow words. Say that a testator leaves a gift of his books and paintings and cutlery and then adds a gift of ‘all the rest of my furniture and effects’. Normally, the word ‘effects’ will include all personal property (for example, bank notes, shares, etc) but application of the ejusdem generis rule will result in ‘effects’ being restricted to the previously enumerated class of goods.57 The principle will not be applied if the will, read as a whole, contains a contrary intention, in which case the words used will be given their ordinary meaning, and there are authorities58 to the effect that in the case of residuary gifts, if the application of the principle would lead to a partial intestacy, it will not be applied.

Inconsistency and conflict: ambiguous words do not control a clear gift 8.20 There is a general principle of construction to the effect that if a gift in the will is quite clear, any subsequent words therein that are ambiguous cannot have the effect of cutting down or reducing in scope the clear gift. Thus in Re Gouk,59 the testatrix, after giving pecuniary legacies, gave ‘all the remainder of which I am possessed to my sister Florence Elizabeth Allen … and thereafter to her issue’. It was held that the sister took an absolute interest in the residuary estate, the gift to her being clear, which gift could not be cut down by the ambiguous words ‘… and thereafter to her issue’. Similarly, in Ritchie v Magree,60 the High Court was required to construe the following clause in the will of a testator: I also direct that my wife is to have full use of my property situate at 81 Harris Street, Harris Park, and that upon her death [the named real property] is to become the property of my daughter. The remainder of my real and personal possessions is to become the property of my wife. I also direct that my wife is at liberty to dispose of any portion of my estate if she thinks it advisable with the exception of course [the named real property]. I also direct that upon the

death of my wife, all of that portion of my possessions remaining is to become the property of my daughter.

It was held, applying the above principle, that the widow of the testator took an absolute interest in the residuary estate and therefore [page 217] the gift over to the daughter was void. It should be noted, however, that the principle will only be applied if there is no contrary intention, so that it may well be that the testator did in fact intend to qualify the gift made earlier in the will. If so, that intention will be given effect. There may, for example, be an absolute gift in a will, but the testator’s intentions are really that a gift over should have effect, so that a court then construes the absolute interest only as a life interest, and allows the gift over to take effect.61

Inconsistency and conflict: rule of despair 8.21 Difficulties are caused in the construction of wills by contradictory provisions in a will. Two clauses in a will may be mutually inconsistent. It will be seen in the discussion of admissibility of extrinsic evidence (see 8.23 ff) that such evidence, in relation to the testator’s intentions, is only admissible in cases of ambiguity or equivocation, and not in cases of inconsistency. Accordingly, the courts are sometimes forced to resort to the so-called rule of despair, which provides that where two clauses in a will conflict, the later clause will prevail over the earlier. As stated by Lord Greene MR: It is a fundamental rule in the interpretation of wills that effect must be given, so far as possible, to the words which the testator has used. It is equally fundamental that apparent inconsistencies must, so far as possible, be reconciled, and that it is only when reconciliation is impossible that a recalcitrant provision must be rejected. Even in that case, of two irreconcilable provisions, it is the latter that prevails …62

Due to the largely arbitrary nature of this rule, there are a number of situations in which the courts have avoided its application. The simplest

approach is, of course, for the court to determine that the testator’s real intentions, from a reading of the will as a whole, were that the first clause was intended, and not the later.63 In Piper v Piper64 it was also held that the rule of despair would not be applied if an intestacy thereby resulted, thus confirming the golden rule in these circumstances: see 8.16 above. Further, there is authority65 to the effect that if the inconsistency arises where the same object is given to two different persons in different clauses, then the conflict may be resolved by giving each person a half share in that object. If there are inconsistent gifts of residue, the position is that the first gift may take effect, despite the rule of despair, as the second gift may be treated as a substitutional provision, which will take effect if, for example, the first fails for lapse.66 Finally, where the inconsistency [page 218] is between a clause in a will and a clause in a codicil, the general rule is that to the extent of the inconsistency, the codicil has revoked the will.

Inconsistency and conflict: rule in Lassence v Tierney67 8.22 This rule deals with a conflict between a clause in a will that appears to confer an absolute gift on a beneficiary but a later clause engrafts or imposes certain trusts on that absolute interest. As explained by Lord Davey in Hancock v Watson68 the rule is that if the trusts fail for any reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin on a partial intestacy. In other words, both clauses are construed together so that an absolute gift is given to the first beneficiary if the trusts in the second clause fail. The rule has been consistently applied in Australia.69

Admissibility of extrinsic evidence in construing a

will General 8.23 Again reference should be made to the distinction addressed above (see 8.2) between the court of probate and the court of construction. An application for a grant of probate, for example, may involve questions of evidence, such as whether the document submitted for probate was actually intended to be testamentary in nature, or whether the testator had the requisite mental capacity and so forth. In those circumstances, the issue is open to investigation and extrinsic evidence is always available to the court of probate to determine the issue. In the case of a court of construction, however, the admissibility of extrinsic evidence of the actual intentions of the testator is severely limited. The circumstances in which such evidence may be admitted will be considered first, and consideration will then be given to statutory reform of those rules that has taken place in most Australian jurisdictions.

Admissibility of extrinsic evidence at common law 8.24 Extrinsic evidence is admissible in a court of construction in two separate cases. The first, which is referred to as the ‘armchair rule’,70 allows the court to place itself in the position of the testator at the time of the execution of the will, and thus take into account the circumstances surrounding the testator at that date. Such circumstances may then assist the court in the construction of the language used in the will. The second case is [page 219] where direct extrinsic evidence of a testator’s actual intentions is admissible. As will be seen, this second case is limited to equivocations. It should also be noted at this point that direct extrinsic evidence of the testator’s actual

intention is also admissible to rebut certain equitable presumptions, such as equitable ademption and satisfaction, which are considered below in Chapter 9. This is not, however, truly a matter of construction of the will.71

Armchair principle 8.25 This principle was expressed by Blackburn J in Allgood v Blake72 as follows: The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … the meaning of words varies according to the circumstances of and concerning which they are used.

The use of the armchair principle is neatly illustrated by the facts of Re Jackson.73 There a testatrix devised and bequeathed all her real and personal estate to her trustees upon trust for sale and conversion, and to hold the net proceeds upon trust for her two brothers, two sisters and ‘my nephew Arthur Murphy’ in equal shares. The testatrix had three nephews named Arthur Murphy, two of whom were legitimate sons of two of her brothers and the other was an illegitimate son of a sister. One of the legitimate nephews was resident in Australia, but had visited the testatrix on occasions. The other legitimate nephew was resident in England and known to the testatrix, but he was the son of a brother who was given another share of the residuary estate. The illegitimate nephew had married a legitimate niece of the testatrix and was well known to the testatrix, whose affairs he had managed before her death for some time. Farewell J was required to determine which person the testatrix had intended by the words ‘my nephew Arthur Murphy’. The judge used the armchair principle to determine the issue, and placing himself in the position of the testatrix, and looking at the evidence from that point of view, he had no doubt that the illegitimate nephew was the person clearly intended to take under the will. Similarly, in the oft-quoted case of Charter v Charter74 the testator appointed as an executor to his will one ‘Forster Charter’ and also

left a gift to that person. The testator had two sons, one William Forster Charter, who was always called Billie, the other Charles Charter, who was always called Forster by the testator. It was held, using the armchair principle, that the ‘Forster Charter’ referred to in the will as executor was in fact Charles Charter, and not William Forster Charter. [page 220] As illustrated by these decisions the armchair principle allows the admission of evidence of the testator’s general habits and knowledge. The most usual case of the use of the principle is to explain the meaning of the actual words used by the testator in relation to either descriptions of persons or of property. Thus, evidence is admissible of the testator’s knowledge of, and relationship with, the persons who are mentioned in the will as beneficiaries, and particularly of the testator’s use of language; for example, the habit of a testator in calling a particular person a particular name or nickname. In relation to property, the same principles apply, so that evidence is again admissible of the name by which the testator called a particular place of property.75 In Perrin v Morgan76 Lord Atkin stated the general principle as follows: The testator obviously meant to dispose of, at any rate, some part of his property by the phrase [‘all moneys of which I die possessed’] and the construing court has to ascertain what was meant, being guided by the other provisions of the will and the other relevant circumstances, including the age and education of the testator, his relations to the beneficiary chosen, whether of kinship or friendship, the provisions for other beneficiaries, and other admissible circumstances. Weighing all these, the court must adopt what appears the most probable meaning … I cannot agree that the court is precluded from looking outside the terms of the will. No will can be analysed in vacuo. There are material surroundings such as I have suggested in every case, and they have to be taken into account. The sole object is, of course, to ascertain from the will the testator’s intentions.

One major limitation on the use of the armchair principle is that evidence of surrounding circumstances may not be used if the effect is to alter clear and unambiguous words used in the will. This is the case, even if it is

probable that the testator intended the words to have a different meaning.77 The leading case on this point is Higgins v Dawson.78 There, the testator gave a large number of general pecuniary legacies, and then gave ‘all the residue and remainder’ of two mortgage debts due to him ‘after payment of my just debts and funeral expenses and the expense of proving this my will’ to three named persons. At the date the will was made, the only real assets of the testator were the mortgage debts, which would have been sufficient to cover the pecuniary legacies and the payment of the debts and funeral expenses. The pecuniary legatees argued, therefore, that the gift of the mortgage debts should be construed as also applying to the pecuniary legacies: the surrounding circumstances relating to the amount of the testator’s estate and the fact that the mortgage debts were the only assets of the testator should be taken into account in construing the will. The House of Lords rejected this argument, holding [page 221] that the language of the will was clear and unambiguous. The words ‘all the residue and remainder’ meant simply the residue and remainder after payment of debts and expenses. The testator had charged the two mortgage debts with the payment of debts and expenses and not with the payment of pecuniary legacies. A similar decision was reached in Evans v Angell79 where the testator devised his freehold land ‘situate in the parish of Crowhurst in the county of Surrey, with their appurtenances’. The testator held two other pieces of land, not in the parish of Crowhurst, but in the adjoining parishes of Limpsfield and Lingfield. Those pieces of land had always been let with the land in Crowhurst as one farm, and occupied by the same tenant. It was held that the words of the will were clear, and could not therefore include the land held in the other parishes, despite the distinct probability that the testator intended all this land to pass under the devise.

The limitation outlined above must be treated with some caution today, however. It used to be stated that, as a result of cases such as Higgins v Dawson,80 the armchair principle could only be used where the words used in the will were ‘insensible’, in which case the court could look at the surrounding circumstances to see if the words could bear some other meaning, in the light of those circumstances. In other words, if the words of the will could have no possible operation if construed according to their strict or primary or normal meaning, extrinsic evidence was admissible, but not otherwise. If the words of the will could have their normal meaning, however, extrinsic evidence was not available to actually create an ambiguity in relation to the words used. That ambiguity must appear from the words used in the will, and not the surrounding circumstances. There are authorities, however, which appear to suggest that extrinsic evidence may now be admitted to show an ambiguity, even if the words used in the will are clear and thus comply with the normal meaning rule. There will still be a very strong presumption that the description of the subject or object in the will will prevail, but that presumption may nevertheless be overcome by extrinsic evidence of the surrounding circumstances. To illustrate this development, consider the case of a testator who leaves in a will, a gift of all his real and personal estate ‘to my wife’. If the testator has left a lawful wife, then the normal meaning of the words used in the will would result in that person receiving the gift. But may extrinsic evidence of the surrounding circumstances be admitted under the armchair principle to show that the testator, in the use of those words, meant the gift to go to another? In Re Smalley81 the testator left a gift ‘to my wife Eliza Ann Smalley’. He left a lawful wife, one Mary Ann Smalley, but five years before his death, contracted a bigamous marriage with a widow, Eliza Ann Mercer, who lived with him, was known as Eliza Ann Smalley and believed she was, and was reputed to be, his wife. It was held that the will read in the light of the surrounding circumstances, indicated that the

[page 222] testator intended to benefit Eliza Ann Mercer, she being in a secondary sense and by repute his wife, although not the testator’s lawful wife, not bearing his surname. So too in Day v Collins,82 where the testator left a gift in the following form: ‘I give to my wife an annuity of one hundred and fifty pounds.’ The testator had married in England in 1885, but deserted his wife when he went to New Zealand some four years later. In 1899 he contracted a marriage in New Zealand with one Emily Collins, with whom he lived for 23 years until his death. Again, using the armchair principle, the Court of Appeal held that extrinsic evidence of the surrounding circumstances was admissible, and these circumstances indicated that the testator intended Emily to take the gift.83 While, therefore, it now appears possible to use the armchair principle to admit extrinsic evidence of the surrounding circumstances, even if the words used in the will can have an operation under the ordinary meaning rule, very strong evidence will still be needed to overcome the ordinary meaning. That evidence was present in Day v Collins84 but compare that case with the decision of the House of Lords in National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children.85 There, a Scotsman who had lived all his life in Scotland, by a will made in Scottish form, left a legacy ‘to the National Society for the Prevention of Cruelty to Children’. The legacy was claimed by the society of that name, which had its head office in London and did not operate in Scotland. A rival claimant was the Scottish National Society for the Prevention of Cruelty to Children, of which the testator was aware. The testator had almost no connection with England. It was held that while extrinsic evidence could indeed be looked at, that evidence was not sufficient in the circumstances to displace the primary meaning of the words used in the will. The words of Lord Loreburn are instructive (at 212): … I think the true ground upon which to base a decision in this case is that the accurate use of a

name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances. I use as a convenient method of expressing one’s thought the term ‘presumption’. What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said.

Evidence of intention: equivocations 8.26 As noted above, there is only one case when direct evidence of the actual testamentary intentions of the testator is admissible in the construction of wills, and that is in the case of equivocations. Such evidence [page 223] may include the testator’s actual instructions to the solicitor or drafter who prepared the will and any declarations by the testator as to his or her testamentary intentions, whether made before or after the will. Ordinarily, an equivocation (sometimes called a latent ambiguity) arises where the language used in the will may be applied equally to each of two or more persons or to each of two or more things. In the words of Lord Abinger in Doe d Hiscocks v Hiscocks: Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator’s words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator intended to express.86

Thus, in relation to descriptions of persons, should a testator make a gift in the will to ‘my daughter Sara’ and the testator has two daughters called Sara, direct evidence of intention is admissible to resolve the ambiguity, if possible.87 In Doe d Gord v Need,88 for example, the testator made a gift of one of his houses to ‘George Gord the son of George Gord’, left a legacy to ‘George Gord the son of John Gord’, and then left another of his houses to

‘George Gord the son of Gord’. Direct evidence of intention was admitted to show which Gord was intended in respect of the third gift. The equivocation may also relate to descriptions of property so that if a testator leaves a gift of, for example, ‘my property at Southport’ and he has in fact two properties at Southport, North Southport and West Southport, again there is an equivocation and the relevant evidence is admissible to show which property the testator intended to pass.89 It should be noted that in relation to equivocations the armchair principle may also be relevant to decide whether in fact the words used in the will create an ambiguity. That is, by application of the armchair principle, an equivocation may be created, so that extrinsic evidence of the testator’s intention may be admissible; conversely, of course, the armchair principle, and other rules of construction, may reveal that there is in fact no ambiguity or equivocation at all, in which case extrinsic evidence of intention is not admissible.

Statutory modification 8.27 In the United Kingdom, the English Law Reform Commission considered the matter of the admissibility of extrinsic evidence in 1973,90 the majority recommending that extrinsic evidence should be admitted in certain defined circumstances. Section 21 of the Administration of Justice [page 224] Act 1982 (UK) put some of those recommendations into effect. In all jurisdictions in Australia except South Australia there is now almost identical legislation relating to the admission of extrinsic evidence.91 These provisions give effect to a recommendation of the Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills.92 Apart from the Australian Capital Territory the legislation specifically provides for the

retention of the common law principle as to the admissibility of extrinsic evidence. Section 32 of the New South Wales Succession Act 2006 is typical of all provisions. It provides as follows: 32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will: (a) meaningless, or (b) ambiguous on the face of the will, or (c) ambiguous in the light of the surrounding circumstances. (2) Despite subsection (1), evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c). (3) Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.

The provisions have yet to receive extensive judicial consideration, but the decision of Atkinson J of the Queensland Supreme Court in Public Trustee of Queensland v Smith93 provides guidance. Her Honour reiterated that the first task of a court of construction is to consider the usual meaning rule, and if the words of the will were clear, the will would be given that construction. Resort to extrinsic evidence is permissible when the usual meaning rule is insufficient to resolve the construction of a provision in the will. As far as the relationship between the common law principle relating to extrinsic evidence and the statutory provision, resort may be had to the ‘armchair’ principle, the ‘equivocation exception’ and the ‘equitable presumption’ rule.94 In addition to those three circumstances, consideration may be given to the three circumstances for admission of extrinsic evidence set out in the legislation.95 The statutory provision is thus in addition to the common law principles. [page 225] The major innovation in the provisions is allowing for the admission of extrinsic evidence, and most importantly, evidence of the testator’s actual

intentions, where the language used by the testator is ambiguous on the face of the will, although it may well be argued that those circumstances may be limited to equivocations in any event.96 This appears, however, to be a restrictive interpretation, as the Uniform Succession Law Committee97 expressly pointed out that the purpose of the provision was to extend admissibility to all forms of ambiguity and not simply to cover equivocation. Direct extrinsic evidence of intention is not available where there is ambiguity in the light of the surrounding circumstances. In other words, such evidence will not be admitted to actually create an ambiguity. The Victorian and Australian Capital Territory provisions98 also provide that extrinsic evidence may be admitted not only where the language used by the testator is meaningless or ambiguous but also where it renders the will or part thereof ‘uncertain’. This would, in any event, extend the operation of the equivocation doctrine. This wider interpretation is also supported by the words of the Standing Committee of Attorneys-General in its report,99 where it stated: The object of all provisions is to extend the admissibility of evidence of the testator’s actual intention, which is allowed where the wording of the will is found to be equivocal, to cases where the wording is found to be merely ambiguous. ‘Equivocal’ literally means referring to two or more possible persons or pieces of property, and that is the way in which it has been applied by the courts. It is the narrowness of the equivocation doctrine that is being relaxed. The adaptations in the Australian Capital Territory extend the language of the English and Tasmanian provisions and of the draft Victorian provision by the use of the word ‘uncertain’ in addition to the word ‘ambiguous’. The extension of the provision to include uncertainty as well as ambiguity is not insignificant. To be ambiguous it must be possible to say of words in the will that they may mean (a) or (b) or perhaps (c), to any of which effect could be given. Extrinsic evidence is admitted to resolve whether the testator intended (a) or (b) or (c).

Court unable to ascertain meaning 8.28 If, after using all, or some, of the appropriate rules and principles set out above, the court of construction is still unable to ascertain the meaning of the language used in the will, the actual disposition will be

[page 226] void for uncertainty. This is so whether the uncertainty relates either to the actual subject matter of the gift or the identity of the person who was to receive a gift under the will.

Gifts to persons General 8.29 In this section, it is intended to give a brief description of the particular ways in which the more common descriptions of persons in wills have been construed by the courts. It is not intended to give an exhaustive account of the law, which would be inappropriate in a text of this nature, but rather to alert the reader to the more common types of cases and principles likely to arise.

Person to be ascertained at date of will 8.30 The general rule is that where a person fulfils the description in the will at the actual date of the will, then that person will in fact take the gift.100 In Amyot v Dwarris,101 for example, Sir Fortunatus William Dwarris of Jamaica devised his real estate called Golden Grove ‘to the eldest son of my sister Frances McKeond Gibney and his heirs for ever’. At the date of the will the sister had two sons, but both predeceased the testator. The sister later had two other sons who were in fact alive at the testator’s death, but it was held that the gift lapsed: see Chapter 9. The reference to the eldest son was a reference to the eldest of the two sons who were living at the date of the will. As was pointed out in that case, however, the principle is always subject to a contrary intention, so that other provisions in the will or the surrounding circumstances may indicate that the beneficiary was to be ascertained at the time of the testator’s death, and not at the date of the will. Sometimes, for

example, there is a gift to the holder of a particular office, as in Re Daniels102 where the gift was to ‘the Lord Mayor of London for the time being’ and it was held that the reference was to the Lord Mayor at the date of the testator’s death, this being indicated by the words ‘for the time being’. It should also be noted that the general rule does not apply to class gifts, which are discussed separately below.

Relationships 8.31 In many wills, relationships are specified so that a gift is left to a particular relative of the testator, for example, ‘to my sister’ or ‘to my nephew’. The general rule in this regard is that if the beneficiaries are [page 227] so described then blood relations are meant,103 so that relationships by affinity, that is, relationships arising by marriage, are excluded. Again, however, this rule is subject to any indication to the contrary either in the will itself or by necessary implication.104 Depending on context, the general rule also covers half-bloods, so that step-relations are included and not excluded.105

Legitimacy, adoption, artificial conception and children generally 8.32 At common law, under the principle of Hill v Crook,106 a gift to relations was confined to legitimate relations, so that if, for example, a testator left a gift ‘to my daughter Daphne’ and Daphne was in fact illegitimate, she could not take. There were two specific exceptions to this rule: first, where the will itself indicated that illegitimate relations were to take; second, where there were no legitimate relations to satisfy the description in the will, that is, when it was impossible for the gift to apply to a legitimate relation. A modern

application of this principle and the exceptions to it is provided by the decision in Re Will of Ahchay.107 There a testator left the whole of his estate to his wife absolutely, but if she should not survive him for a period of one calendar month, then to such of his children as shall be living at his death. The testator had no natural or adopted children but his wife had seven children, three of whom the testator had raised and treated as his own. The testator’s wife predeceased him. It was held that the three children brought up by the testator were entitled. While the term ‘children’ prima facie meant legitimate children, it was not possible for any legitimate children to take under the bequest, as the wife was beyond childbearing age and the testator did not seek to revoke his will during the 20 years following her death. He had no other children. In those circumstances, the testator intended to identify those children of his wife who had comprised the family unit following his marriage to the children’s mother. The common law position in regard to children has now been reversed by statute in all Australian states.108 The statutory provisions vary in detail,109 but the general effect is to give illegitimate children the [page 228] same rights as legitimate children. The Queensland provision is typical. Section 3 of the Status of Children Act 1978 (Qld) provides as follows: 3 Act binds all persons (1) For all the purposes of the law of the State, the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly. (2) The rule of construction whereby in any instrument in the absence of a contrary expression of intention, words of relationship signify only legitimate relationship is abolished. (3) For the purpose of construing any instrument, the use, with reference to relationship of a person of the word ‘legitimate’ or ‘lawful’ shall not of itself prevent the relationship from being determined in accordance with the provisions of subsection (1). (4) This section shall apply in respect of every person, whether born before or after the

commencement of this Act, whether or not his father or mother has even been domiciled in the State.

It is, of course, still possible for a testator to exclude illegitimate children, but he or she must do so expressly, the mere use of the words ‘legitimate’ or ‘lawful’ not being, by themselves, sufficient to indicate that intent. The same position pertains to adopted children, under the adoption legislation of each state.110 The basic legal position is that an adopted child becomes a child of the adoptive parents as if that child had been born to such parents in lawful wedlock, and ceases to be a child of the previous natural parents. Construction of the will thus takes effect accordingly, so that an adopted child will be included in the description of a child in a will of the adoptive parents. Conversely, of course, unless a contrary intention is shown, such children cease to have any rights to take under a will of the natural parents, as they are no longer children of those parents. A child en ventre sa mère is a child in the womb but not yet born. It may be necessary for succession law purposes to consider that child in respect to gifts (and on intestacy).111 A pre-condition for any legal right reposing in that child is that the child be born alive,112 but upon that birth it has a separate existence from the mother.113 Thus, should a testator leave a gift to ‘my children living’ and die prior to the child en ventre sa mère being born, that child, on its subsequent birth, is encompassed within the gift.114 The same is true of gifts to a class, for example, a gift ‘to my children’ in that those who are living at the date of the testator’s death include the child en ventre sa mère if that child is subsequently [page 229] born alive.115 The principle behind this was treated by the House of Lords in Elliot v Joicey116 as ‘fictional’, and so not really a question of construction at all, except implicitly in that it must be:

… within the reason and motive of the gift, and is designed to secure a benefit to which he or she would have been entitled if he or she had actually been born at the relevant date.117

In Queensland and New South Wales, there are specific statutory provisions,118 which provide that a reference to a child or issue in the Act includes a child or issue en ventre sa mère at the death, provided that such child or issue is born alive and remains alive for a period of 30 days. A child born through reproductive technology, commonly known as artificial conception or insemination, is now treated as the natural child of the parents under specific legislation in the Commonwealth and all state and territory jurisdictions.119 Prior to that legislation, a child so conceived was treated as illegitimate. As a result of the legislation, such a child now stands in the same position as an adopted child, as far as succession law is concerned. Thus, as pointed out by Slicer J of the Supreme Court of Tasmania in In the Matter of the Estate of K120 a child born through such technology is in an analogous position to a child en ventre sa mère, whether the form of life is by development of an embryo or a foetus. A child thus born is entitled to full rights of succession, including a gift to children. A description of ‘children’ in a will ordinarily means first generation descendant only and not remoter issue.121 This is subject to the general rules of construction to the effect that a contrary meaning may appear in the context of the will, or circumstances surrounding the testator at the date of making the will. Thus a gift to children does not included grandchildren unless the above applies.122 Moreover, step-children, that is, children who are children of a marriage who become a member of the household of the actual parent and step-parent, will not be included in a general gift to children, unless the will indicates as such or evidence of the contrary intention is evident.123 Evidence of surrounding circumstances or the dictionary principle may be of assistance here, particularly where the testator has no [page 230]

natural children, but the gift is to his or her children. In Warton v Yeo,124 for example, the testator was one of four children, unmarried with no issue. In his will, he left 25 per cent of his residuary estate to his sister, Ailsa, with a gift over that ‘if she should die before me then to such of her children as shall survive me and if more than one in equal shares’. The factual matrix was that Ailsa had married her husband when he was a widower with four young children, and Ailsa raised her step-children as her own within her family for over 30 years. Together, Ailsa and her husband had one natural child. At the time the testator made his will, given Ailsa’s age, no further natural children could have been conceived. The New South Wales Court of Appeal, using the above principles, concluded that the use of the plural ‘children’ in the will provided a strong textual indicator that the testator intended to include Ailsa’s step-children in the gift over, with the result that all four step-children and Ailsa’s one natural child were ‘children’ of Ailsa and thus entitled to an equal share of the estate.

Spouses 8.33 A gift to my ‘husband’ or ‘my wife’ in a will means the husband or wife at the time of making the will.125 This is subject to a contrary intention in the will. Thus it is not a gift to any subsequent spouse that the testator may have.126 However, if descriptive words have been used or where the testator denotes a specific person, some other date may be intended.127 There may be construction issues if the testator, although not formally married, leaves a gift to ‘my wife’ or ‘my husband’. If there is no person justifying that description at the date of the testator’s death, then the gift will fail, but conversely the testator may have entered into a de facto relationship of marriage or a civil partnership. Such relationships, subject to statutory conditions, provide for legal rights and impinge particularly on inheritance rights in the case of intestacy, where the matter is fully examined in Chapter 10.128 Thus, should a testator leave a gift to ‘my wife’, not being formally married

to her, but is in a de facto or other type of relationship as defined by the above legislation, the question arises whether the gift to ‘my wife’ is encompassed within the general terms of the will. This question may be further complicated, as Haines notes,129 by the fact that the testator [page 231] may have left a lawful wife but is living with another in a de facto or other relationship. There are no special legal principles applicable here,130 so the general rules of construction as discussed above are applicable. If therefore if it can be established, under those rules, that the testator meant that the expression ‘my wife’ means the de facto relationship wife then the gift will obviously be effective to that person in both cases where the testator has only left a de facto relationship wife or lawful wife and a de facto relationship wife. The ‘dictionary’ principle may be of assistance here, as well as the ‘armchair’ principle.131

Transgender persons 8.34 In New South Wales and the Australian Capital Territory, but not in the other jurisdictions, there are specific provisions dealing with the operation of wills relating to transgender persons.132 The basic provision in both statutes provides that a beneficiary under a will does not lose any rights of entitlement under the will merely because the beneficiary is a transgender person.133 In New South Wales, this is subject to a contrary intention, but that must be expressed in the will. In the Australian Capital Territory, the principle is also subject to a contrary intention, either expressed in the will or by extrinsic evidence.134

Class gifts

8.35 A class gift is a gift to a body of persons, uncertain in number at the time of the gift, so that the share of each depends upon the ultimate number of persons eventually included in the class. Say that a testator leaves a gift ‘to my grandchildren’. This is a class gift in the sense that ‘the gift is to a class, consisting of persons who are included and comprehended under some general description’.135 Say also that the testator had three grandchildren who were living at the testator’s death but after his death another grandchild is born and there is a possibility of other grandchildren coming into existence afterwards. This situation poses problems for the law of succession in that if one were to wait for all possible grandchildren to be born, the administration of the estate would be delayed for a considerable period of time: in fact, until it is clear that no more grandchildren could come into existence. To deal with this problem, there are rules of construction, known as the class-closing rules, [page 232] sometimes referred to as the rule in Andrews v Partington,136 which in the above example, effectively close the class at the date of the testator’s death, so that the three grandchildren living at that date are entitled, but those born after that date are excluded. As has often been pointed out,137 though the rules are subject to a contrary intention, they are not designed to carry out the intention of the testator, but are rather rules of convenience, designed to assist early vesting.138 Before dealing with the effect of the class-closing rules on class gifts, it is necessary to distinguish a class gift from a gift to an individual, as the classclosing rules have, of course, no application to the latter. A testator may, for example, use the terminology of a class gift to describe the beneficiaries but may also identify the individuals within that class, either by name or by number. If this is the case, the gift is an individual gift and not a class gift. The share of the individual is fixed once and for all, and if it should fail passes

either to the residuary estate or on intestacy, depending upon the circumstances. Thus, a gift ‘to the five children of B’ is not a class gift, but rather an independent gift to a member of that class.139 Similarly, if the five children are in fact identified by name. As was stated by Bray CJ in In re Michell (decd),140 a class gift is a gift where: … the persons in question must be united or connected by a common tie so that you can say that the testator was looking to the body as a whole rather than to its members as individuals.

Returning to the class-closing rules, there are a number of distinct situations that need to be considered: (1) Immediate gift without qualification. Examples would be gifts ‘to the children of A’ or ‘to all my grandchildren’. In this situation, if any members of the class are born at the testator’s death they take to the exclusion of after-born members.141 If, however, there are no members of the class in existence at the testator’s death, then the class will remain open — that is, the class-closing rules have no application, so that all persons coming within the description of the class take, whenever born.142 (2) Mediate gift without qualification. This occurs where the gift to the class is preceded by a limited, usually a life, interest. An example would be a gift ‘To A for life, remainder to the children of B’. As no member of the class can call for a share in possession until the death of the life tenant, the class will not close until that date. In the example, the class closes on the death of A: children in existence at that time are included, but any children born to B thereafter [page 233] are excluded. As in the first case above, however, if there are no children of B in existence at A’s death the class remains open and so will include all of B’s children whenever they are born. (3) Immediate gift with qualification.143 An example would be a gift ‘to all my grandchildren who attain the age of 21’. The qualification may not necessarily relate to age, though that is usual, but may be some other condition, for example, marriage. In this situation, the class is closed when the first member of the class satisfies the contingency, that is, in the example above, when the first grandchild reaches the age of 21. The important thing to note here is that all potential members of the class who are in existence at that date are included in the class, so that if, at the testator’s death, there are three grandchildren, aged 25, 15 and 5 respectively, the class closes as one has satisfied the contingency. The other two grandchildren will receive their share on attaining the age of 21,144 but any grandchildren coming into existence after the death of the testator are excluded. The other possibility, of course, is that either the testator has no grandchildren at the time of his or her death, or has grandchildren, none of

whom has reached the age of 21. In that case, the class will close when, and if, the first grandchild reaches the age of 21, so that grandchildren in existence at that date will take, but not those born afterwards. (4) Mediate gift with qualification. As in situation 2 above, the gift to the class is preceded by a limited estate, but as in situation 3, the class gift itself is subject to a contingency. An example would be a gift ‘to A for life, remainder to all the children of B who attain 21’. Here, the class will close on the death of A, if there are any children of B who have attained the age of 21 at that time. If there is no child of B who has attained that age on A’s death, the class will close when the first child of B does so. Again, children in existence at that date are included, but children born afterwards are excluded.

The class-closing rules are subject to a contrary intention, so that if the testator should use language in the will (read, of course, in the light of the surrounding circumstances) to that effect, the rules will not be applied. The most obvious way this may be done is for the testator to state that the gift is to the class ‘whenever born’ or ‘at whatever time they may be born’. It was held in Re Edmondson’s Will Trusts145 that these phrases were sufficient to indicate the contrary intention. [page 234]

Gifts of property General 8.36 As in the section above relating to gifts to persons, it is not intended in this section to give an exhaustive enumeration of all the rules of construction relating to gifts of property. Such an enumeration is beyond the scope of a text of this nature, and the reader is referred to Chapter 9, where a general treatment is given of the different types of gifts that can exist. There are, however, a number of matters of general consideration in relation to gifts of property that need to be addressed.

Will speaks from death as to property

8.37 It has already been noted (see 8.30) that in the case of beneficiaries, the relevant date for ascertainment of the beneficiary or beneficiaries is the actual date of the will. The gift is to the person who fulfils that description at that time. In respect of property, however, the reverse is the case and the relevant date is the date of death of the testator. This is the result of legislation in all Australian jurisdictions.146 The legislation basically provides that a will is to be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears. As regards the doctrine of ademption, the rule is separately considered below in Chapter 9. The general effect of the legislation is that if a testator should leave, for example, a gift of ‘all my paintings’, the gift will include not only those paintings owned by the testator at the date of the will, but also any paintings subsequently acquired by the testator, and not disposed of, between the date of the will and the date of death. The rule is particularly applicable in relation to generic descriptions of property, which can increase or diminish, as in the above example. A similar result would obtain if the testator left a gift of ‘all my shares in X Co’, or ‘my lands in Tasmania’. It also applies to residuary gifts (see 9.7 below), that is, property that is not already disposed of in the will, so that a residuary gift of ‘all my real and personal estate’ would encompass real and personal property as at the date of death of the testator, and is not limited to property at the date of the will. The legislation generally does not apply if a contrary intention appears by the will, so that, in general, a non-generic description of property will include only that property in existence at the date of the will. For example, a testator may leave a gift of ‘my grandfather clock’, which would appear to indicate that he or she meant that clock only, and not any subsequently acquired clock. If this be the case, then only that clock can pass under the will, a contrary intention being indicated, so that [page 235]

any other clock subsequently purchased or acquired by the testator will not pass. In Re Sikes,147 for example, the gift was of ‘my piano’. On the death of the testatrix a piano was in fact owned by her, but it was not the same piano she owned when she made the will. It was held that the testatrix intended to give only the piano that she owned at the time the will was made. There was therefore a contrary intention and the section had no application.148 In assessing whether a contrary intention exists or not, it would appear that the ordinary rules of construction are to be applied, so that extrinsic evidence, where admissible under those rules (see 8.23 above), may assist the court in making the determination.149 Possessive words, such as ‘my’, may indicate a contrary intention for the purposes of the legislation but care should be taken here, as such words, by themselves, may not indicate that intent.150 Of course, a contrary intention will be indicated if the will itself specifically refers to the item existing at the date of the will rather than at the date of death, but again, this is not necessarily indicated by the use of such words as ‘now’, which can refer to the date of death. Thus, in Wagstaff v Wagstaff,151 the testator left a gift of property ‘which I now possess’ but no contrary intention was shown, the court holding that the words really meant ‘which I possess’. There are, however, decisions to the effect that such words may show a contrary intention.152 In truth, the court has considerable discretion in deciding whether a contrary intention exists for the purposes of the legislation or otherwise. Where the section is in fact excluded various results may follow. The usual case is that the gift is adeemed, as in Re Sikes,153 and ademption is discussed further in the following chapter. Basically, however, ademption will mean that the beneficiary will take nothing, as the specific gift has ceased to exist at the date of death. It may, however, still exist, and this can be of benefit to the beneficiary. In the interesting case of Re Evans,154 for example, the testator left a gift of his ‘house and effects known as Cross Villa situated in Templeton’. The court decided in the circumstances that a contrary intention

was shown for the purposes of the section, so that the will did not speak from death, but rather from the date of the will. At the date of the will, the premises consisted of half an acre of land with one house. The testator later divided part of the land from the rest by the use of a hedge, and built two more houses upon this part of the land. As a result of the non-application of the section, the whole half-acre, including the two new houses, passed to the beneficiary. [page 236]

Types of gifts 8.38 There are a variety of types of gifts that relate to property, including specific and residuary devises, and specific general, demonstrative, pecuniary and residuary legacies. Each of these types of gifts is discussed in some detail in the following chapter, and will not be further discussed here.

Specific statutory rules relating to gifts of property 8.39 The Wills Acts of all states and territories also contain some specific provisions dealing with gifts of property. In general, they provide that general devises of land include leaseholds as well as freeholds,155 residuary devises include estates that have lapsed or are void for any reason,156 and dispositions without words of limitation are to be construed as passing the whole of the estate or interest of the testator.157 Specific provisions also deal with the construction of powers of appointment.158 Although the statutory provisions do not vary markedly from state to state, the reader is referred to the legislation in each jurisdiction to ascertain the exact position.

1.

It is sometimes necessary, however, for a probate court to construe instruments, the most common example being whether a latter instrument impliedly revokes an earlier instrument, and so renders it inadmissible to probate. See, for example, Re Smith [1939] VLR 213; Re Last [1958] P

2.

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

137; Re Cherrington [1984] 1 WLR 722; Re Loweke [1995] 1 Qd R 615. It should be noted, however, that the decision on construction is not binding upon a court of construction if such a court should be called upon to construe a document admitted to probate: Re Hawkesley’s Settlement [1934] Ch 384. It is also not permissible, on the other hand, to raise in the court of construction a matter that has already been considered and properly determined in the probate court: Allen v McPherson (1847) 1 HLC 191; 9 ER 727. The best known example is Lord Greene MR’s judgment in the Court of Appeal decision in Perrin v Morgan [1942] 1 Ch 345 at 346–7 (reversed on appeal: [1943] AC 399). For discussion see Sherrin, ‘The Winds of Change in the Law of Wills’ (1976) 40 Conv 66 and Kerridge and Rivers, ‘The Construction of Wills’ (2000) 116 LQR 287. [1969] 1 WLR 651 at 654. In the Australian context, see also the judgments of the High Court in Brennan v Permanent Trustee Co of New South Wales (1945) 73 CLR 404. [1943] AC 399. Perrin v Morgan [1943] AC 399 at 406 per Lord Simon. Mellows, p 128. See, for example, Scal v Rawlins [1892] AC 342. Abbott v Middleton (1858) 7 HLC 68 at 114; 11 ER 28 at 46. (1922) 31 CLR 268 at 273–4. See also Crumpe v Crumpe [1900] AC 127. Re Haygarth [1913] 2 Ch 9. Allgood v Blake (1873) LR 8 Exch 160 at 163 per Blackburn J. Theobold on Wills, p 186. Bird v Luckie (1850) 8 Hare 301 at 306 per Wigram VC; 68 ER 375. On the construction question see Re James’ Will Trusts [1962] Ch 226. Perrin v Morgan [1943] AC 399; Lutheran Church of Australia South Australia District Inc v Farmers’ Co-Operative Executors and Trustees Ltd (1970) 121 CLR 628. Re Davidson [1949] Ch 670 provides a good example. See also Re Helliwell [1916] 2 Ch 580. Hill v Crook (1873) LR 6 HL 265. See, for example, Children (Equality of Status) Act 1976 (NSW) ss 7, 8. See now Status of Children Act 1996 (NSW) ss 5, 6. Similar provisions appear in most other Australian jurisdictions and are detailed in footnote 118 of this chapter. See, for example, Re Mitchell [1929] VLR 95; Walker v Landenberger (1937) 37 SR (NSW) 201. The example is taken from Re Smalley [1929] 2 Ch 112. (2001) 10 Tas R 186. [1972] 2 All ER 639 at 644. See particularly Hardingham, Neave and Ford, pp 291–5. Perrin v Morgan [1943] AC 399 is the leading authority. [1972] 2 All ER 639. [1943] AC 399 at 406. Lord Atkin and Lord Thankerton expressed similar views. (1970) 121 CLR 628. [1948] Ch 312. Compare Re Everett [1944] Ch 176. Re Cook [1948] Ch 212. [1921] Ch 491 at 503. For a recent example, see Woodgate v Tanks [2014] 1 Qd R 481 (meaning of gifts as ‘tenants in common’).

30. 31. 32.

33. 34. 35. 36. 37. 38. 39. 40. 41.

42. 43. 44. 45.

46. 47. 48. 49.

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.

Re Cook [1948] Ch 212; Allen v Crane (1953) 89 CLR 152; Re Crocombe [1949] SASR 302 at 305. [1921] Ch 491 at 503. Similarly, if the technical terms relate to such matters as trade or business usage. See, for example, Re Rayner [1904] 1 Ch 176; Re Van Lessen [1955] 1 WLR 1326 (‘British Colonials’ in a will of a philatelist). (1842) 9 Cl & Fin 355; 8 ER 450. See also Re Gillson [1949] 1 Ch 99. (1966) 113 CLR 353 at 357. (1922) 31 CLR 268. See, for example, Re Smith [1948] 1 Ch 49; Re Andrews (1936) 56 CLR 1; In Estate of French [1961] SASR 302; Betts v Conolly (1970) 120 CLR 471; McClymont v Hooper (1973) 128 CLR 147. (1858) 11 Moo PC 526 at 543; 14 ER 794 at 800. (1905) 3 CLR 344. [1960] NSWR 498. (1950) 81 CLR 639. But there are some limits on this principle, particularly in respect to reading into the will words which are not actually there. For recent examples see Playoust v Hornsby (2005) 11 VR 504 and Tasmanian Perpetual Trusties v Ramritu [2015] TASSC 7. Lightfoot v Maybery [1914] AC 782 at 802 per Lord Shaw. (1885) 30 Ch D 390 at 393. (1922) 31 CLR 268. (1922) 31 CLR 268 at 279. See also Re Houlgrave (1979) 23 SASR 107 at 114; Loweke [1995] 1 Qd R 615; Hopwood v Cuthbertson (2001) 10 Tas R 186; Dobryden v Wagner (2004) 90 SASR 515. Marshall v Tasmanian Perpetual Trustees Ltd [2015] TASFC 2. (1834) 2 CI & F 194 at 243; 6 ER 1128 at 1147. (1715) 1 P Wms 286; 24 ER 391. [1955] VLR 217. As Lee points out (at 259), the usual example of the operation of the principle in regard to descriptions of property is where the testator describes property by reference to a lot or section number and that reference is incorrect. See, for example, Re Gard [1965] SASR 244; Re McBean (1973) 7 SASR 579. See, for example, Pratt v Mathew (1856) 22 Beav 328; 52 ER 1134. (1909) 10 SR (NSW) 67. [1944] Ch 186. See, for example, Re Lewis [1984] 3 All ER 930. Cowen v Truefitt [1899] 2 Ch 309. (1860) 1 John & H 250; 70 ER 740. See also Morrell v Fisher (1849) 4 Ex 591; 154 ER 1350. Lyndon v Standbridge (1867) 2 H & N 45 at 51 per Pollock CB; 147 ER 19 at 22. As in Re Miller (1889) 61 LT 365. Compare Re Fitzpatrick; Deane v De Valera (1934) 78 Sol Jo 735 and see In Re Alleyn (decd) [1965] SASR 22. See, for example, Re Hall (dec’d) [1918] VLR 448. [1957] 1 All ER 469. (1964) 114 CLR 173. Compare Ritchie v Magree (1964) 114 CLR 173 with Public Trustee v Roberts [1966] SASR 269 and

62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77.

78. 79. 80. 81. 82. 83.

84. 85. 86. 87. 88. 89. 90. 91.

see the general discussion of the issue by Rose J in In the Estate of Ward (decd) [1957] SASR 125 at 127. See also the discussion in Hardingham, Neave and Ford, pp 317–19. Re Potter’s Will Trusts [1944] Ch 70 at 77. For an example see Re Bywater (1881) 18 Ch D 17, which case also illustrates the desirability of allowing extrinsic evidence in these circumstances. (1886) 5 NZLR 135. Re Alexander’s Will Trusts [1948] 2 All ER 111. Re Gare [1952] Ch 80; Re Robertson [1966] VR 196. [1843–60] All ER Rep 47. [1902] AC 14 at 22. See, for example, Dally v Dally [1954] Tas SR 12; Russell v Perpetual Trustee Co Ltd (1956) 95 CLR 389; Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716. Taken from the judgment of James LJ in Boyes v Cook (1880) 14 Ch D 53 at 56. For the general position, see Re Tussaud’s Estate (1878) 9 Ch D 363 at 373–5. (1873) LR 8 Ex 160 at 162. [1933] 1 Ch 237. (1874) LR 7 HL 364. See, for example, Re Alexander’s Will Trusts [1948] 2 All ER 111. [1943] AC 399 at 414. See particularly the judgment of Lord Romer in Perrin v Morgan [1943] AC 399 at 420, where he stated: ‘To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said …’ [1902] AC 1. (1858) 26 Beav 202; 53 ER 874. See also In Will of Allen [1987] QLR 860. [1902] AC 1. [1929] 2 Ch 112. [1925] NZLR 280. See also Layer v Burns Philp Trustee Co (1986) 6 NSWLR 60. There are similar decisions on the meaning of the word ‘child’. See particularly Harris v Ashdown (1985) 3 NSWLR 193, but compare with Re Gibb [1984] 1 NZLR 708 and Re Rowlands [1973] VR 225. See also Re Jebb [1966] Ch 666. [1925] NZLR 280. [1915] AC 207. (1839) 5 M & W 363 at 368; 151 ER 154 at 156. If not, possibly the gift will fail for uncertainty. See 8.28 below. (1836) 2 M & W 129; 150 ER 698. For a more modern example see Re Fleming [1963] VR 17. For an example of equivocation in relation to property see Re Bennet [1957] VLR 113 and, more recently, Hood v Attorney-General (WA) [2006] WASC 157. Law Reform Committee, Nineteenth Report (Interpretation of Wills), 1973, Cmnd 5301. Succession Act 2006 (NSW) s 32; Wills Act 1997 (Vic) s 36; Succession Act 1981 (Qld) s 33C; Wills Act 1970 (WA) s 28A; Wills Act 2008 (Tas) s 46; Wills Act 1968 (ACT) s 12B; Wills Act (NT) s 31. In Victoria, the previous provision s 22A of the Wills Act 1958 applies to wills made prior to 19

92. 93. 94. 95. 96.

97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108.

109.

110.

111. 112. 113. 114. 115. 116.

July 1998. For possible interpretation of the previous position, and the historical background, see Morgan v Moore [2000] VSC 94. Similarly the New South Wales provision only applies to wills made on or after 1 March 2008, however there were no previous legislative provisions. Chapter 6, Pt 5 produced by the National Committee for Uniform Succession Laws and published by the Queensland Law Reform Commission: Miscellaneous Paper 29, December 1997. [2009] 1 Qd R 26. Relating to equitable doctrine of satisfaction, as to which see Chapter 9. [2009] 1 Qd R 26 at [20]–[26]. There is a similar provision in the Administration of Justice Act 1982 (UK) s 21, where the case law suggests such limitation: see Re Williams [1985] All ER 964; Re Harrison [2006] All ER 858; and Lamothe v Lamothe [2006] EHWC 1387. See New South Wales Law Reform Commission, Uniform Succession Laws — The Law of Wills, Report 85, [6.20]. Wills Act 1997 (Vic) s 39; Wills Act 1968 (ACT) s 12B. Op cit footnote 91. In contrast to the position in relation to property, where the general rule is that the will speaks from death. See 8.37 below. [1904] AC 268. See also Re Whorwood (1887) 34 Ch D 446. (1918) 87 LJ Ch 661. See also Re Rumball [1956] Ch 105. Hibbert v Hibbert (1873) LR 15 Eq 372. For example, where the testator has in fact no blood relations. See Hogg v Cook (1863) 32 Beav 641; 55 ER 959. Ward v Van der Loeff [1924] AC 653. (1873) LR 6 HL 265. (1996) 6 Tas R 369. Its continued applicability at common law was doubted in any event by Kirby P in Harris v Ashdown (1985) 3 NSWLR 193, a case relating to a will executed prior to the commencement of the statutory provisions, discussed below. See also the discussion in Evans v Brunskill (unreported, SC(NSW), Bryson J, 19 February 1988) and Wilson v Chapman [2012] QSC 395 at [61]–[62] (Daubney J). See Status of Children Act 1996 (NSW) ss 5, 6; Status of Children Act 1974 (Vic) ss 3, 4; Status of Children Act 1978 (Qld) ss 3, 4; Family Relationships Act 1975 (SA) s 6; Status of Children Act 1974 (Tas) ss 3, 4; Wills Act 1970 (WA) s 31; Status of Children Act 1978 (NT) s 4; Wills Act 1968 (ACT) and Parentage Act 2004 (ACT) s 31A. Adoption Act 2000 (NSW); Adoption Act 1984 (Vic); Adoption of Children Act 1988 (SA); Adoption of Children Act 1964 (Qld); Adoption Act 1994 (WA); Adoption Act 1988 (Tas); Adoption Act 1993 (ACT); Adoption of Children Act 1994 (NT). As to the situation on intestacy, see Chapter 10. Wesley v Wesley (1998) 71 SASR 1 at 9 per Debelle J. In the Matter of the Estate of K (1996) 5 Tas R 365 at 369 per Slicer J. In the Matter of the Estate of K (1996) 5 Tas R 365 at 367–70. Re Bruce [1979] Tas R 110 at 123 per Cosgrove J. [1935] AC 209.

117. [1935] AC 209 at 223–4. 118. Succession Act 1981 (Qld) s 5A; Succession Act 2006 (NSW) s 3(2). 119. Family Law Act 1975 (Cth) s 6H(4); Status of Children Act 1996 (NSW) ss 9–17; Status of Children Act 1974 (Vic) ss 10C(2)(a), (2)(b), (3), 10D(2)(a), (b), 10E(2)(c), (d); Status of Children Act 1978 (Qld) ss 12(2)(a), (2)(b), (3), 16(2)(a), (2)(b), (3), 17(2)(c), (2)(d), (3); Family Relationships Act 1975 (SA) ss 10D(1), 10E(2); Artificial Conception Act 1985 (WA) ss 5, 6; Status of Children Act 1974 (Tas) s 10C(1), (2); Parentage Act 2004 (ACT) s 11; Status of Children Act (NT) ss 5D(1)(a), (1)(b), (2), 5F. 120. (1996) 5 Tas R 365 at 373–4. 121. Popple v Rowe [1998] 1 VR 651 at 665 per Brooking JA. 122. Seelander v Rechner (1884) 18 SALR 82; In re Smith; Lord v Hayward (1887) 35 Ch D 558 at 560 per Kay J. 123. The relationship of the child to his or her step-parent is not one of consanguinity but rather affinity: R v Cook; Ex parte C (1985) 156 CLR 249; Popple v Rowe [1998] 1 VR 651. 124. [2015] NSWCA 115. 125. In Re Devling (decd); Vroland v Devling [1955] VLR 238. 126. Wood v James (1954) 92 CLR 142. 127. Jaques v Seton (1960) 103 CLR 511 at 518 per Dixon CJ. 128. The statutory provisions are as follows: Civil Partnership Act 2008 (ACT) s 6; Relationships Register Act 2010 (NSW) and Interpretation Act 1987 (NSW) s 21C; Relationships Act 2003 (Tas) s 6; De Facto Relationships Act 1991 (NT) s 3(1); Relationships Act 2008 (Vic) s 3; Family Relationships Act 1975 (SA) s 4; Acts Interpretation Act 1954 (Qld) s 32DA; Interpretation Act 1984 (WA) s 13A. These provisions, particularly those relating to registration schemes, are comprehensively and critically considered by Rundle, ‘An Examination of Relationships Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121. 129. Haines at [16.8]. 130. Although, prima facie, the definition of a spouse defines a person who is legally married to another: In Re Devling (decd); Vroland v Devling [1955] VLR 238. 131. See, for example, Re Smalley [1929] 2 Ch 112; Day v Collins [1925] NZLR 280; Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 and the discussion of these authorities above. 132. Succession Act 2006 (NSW) s 46; Wills Act 1968 (ACT) s 28A. 133. In New South Wales, a transgender person is a person referred to in Pt 3A of the AntiDiscrimination Act 1977 (NSW). In the Australian Capital Territory, the person has had successful sexual reassignment surgery under the Births, Deaths and Marriages Registration Act 1997 (ACT) Pt 4. 134. Admitted under s 12B of the Wills Act 1968 (ACT). 135. Kingsbury v Walter [1901] AC 187 at 192 per Lord Davey. 136. (1791) 3 Bro C C 401; 29 ER 610. 137. See, for example, Mellows, p 159. 138. See the discussion by Jenkins LJ in Re Bleckly [1951] Ch 740 at 752, and Dixon J in Crane v Crane (1949) 80 CLR 327 at 335–6. 139. For general discussion on this issue see Re Selby [1952] VLR 273. 140. (1971) 2 SASR 312 at 320.

141. This is often described as the rule in Vinier v Francis (1789) 2 Cox 190; 30 ER 88. 142. Re Selby [1952] VLR 273. 143. This, and situation 4 below, is the real concern of the rule in Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610. 144. Although if one should die, for example, before attaining that age, his or her share is divided among the survivors. 145. [1972] 1 All ER 444. 146. Succession Act 2006 (NSW) s 30; Wills Act 1997 (Vic) s 34; Succession Act 1981 (Qld) s 28; Wills Act 1936 (SA) s 33E; Wills Act 1970 (WA) s 26(1); Wills Act 2008 (Tas) s 44; Wills Act 1968 (ACT) s 24; Wills Act (NT) s 29. 147. [1927] 1 Ch 364. 148. Compare with In Will of Smith [1916] VLR 540. 149. See the discussion by Windeyer J in Pohlner v Pfeiffer (1964) 112 CLR 52 at 77. 150. Re Davies [1925] Ch 643. 151. (1869) LR 8 Eq 229. See also Re Willis [1911] 2 Ch 563 where the words ‘and in which I now reside’, following a gift of property, were regarded as additional to the description, inaccurate at the date when the will came into operation, and therefore rejected as non-essential to the actual description of the property. 152. See Re Fowler (1915) 139 LT JO 183; Re Edwards (1890) 63 LT 481; and Mellows, pp 162–4. 153. [1927] 1 Ch 364. 154. [1909] 1 Ch 784. 155. See, for example, Succession Act 1981 (Qld) s 33I. 156. Succession Act 1981 (Qld) s 33G. 157. See, for example, Wills Act 1992 (Tas) s 37. 158. Wills Act 1992 (Tas) s 36.

[page 237]

Gifts by Will

9

Introduction 9.1 The preceding chapter was concerned with the general principles used by the courts in construing a will. This chapter is more specific in that it examines the effects of gifts made under a will. The different types of gifts that may be made by will are discussed first and consideration will then be given to the various ways in which a gift may fail. This involves an examination of the doctrines of ademption, lapse, disclaimer and forfeiture. The principles of equity also have a role to play here, most notably the doctrines of satisfaction and election. Each of the above doctrines will be separately considered.

Types of gifts 9.2 There are two basic types of gifts that may be left by will. The first is called a devise, which is a gift of realty. The second is technically known as a bequest and as such is any gift of personal property. It is common, however, for modern draftspeople and lawyers to employ the term ‘legacy’ to describe any gift of personal property. Originally, the term legacy was used to describe a gift of money only, but it now has the meaning of a gift relating to personal property generally, displacing the word ‘bequest’. In this chapter, the word legacy will be used rather than bequest. It should also be pointed out that it is best to employ neutral terms in describing gifts in wills, to avoid any difficulties with the employment of technical language. Thus, a testator, in leaving a gift, be it real or personal property, should simply state ‘I give …

(whatever property) to X’. It is necessary to further classify gifts under wills, as different legal effects attach to each. The doctrine of ademption, mentioned below in 9.8, for example, only applies to a particular type of gift. The usual classification is to divide devises into two kinds, specific and residuary, and legacies into five types: specific, general, demonstrative, pecuniary and residuary.

Specific devises and legacies 9.3 These can be defined as a specific gift of some part of the testator’s estate, which is identified and separated from the rest of the estate. In the words of Dixon CJ in McBride v Hudson: [page 238] What marks a bequest as specific is that its subject matter is designated as something that does at the time of the will, or shall at the time of the death of the testator, form an identifiable part of his property and is, so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition.1

Examples of specific devises would be: ‘I devise my freehold property known as Rose Cottage and situated at Lisdillon to Rachel’ or ‘I devise all my real property situate at Triabunna to Andrew’. In relation to legacies, the following would be held to be specific gifts: ‘I give all the books belonging to me to Richard’; ‘I bequeath my Albert Tucker painting to Tom’; ‘I give my one thousand shares in Downunder Productions Pty Ltd to Joan’. It will be noted that in the examples used, the gift in most cases is identified by the use of the pronoun ‘my’ and that will normally indicate the necessary intention that the specific item is to pass under the will. Even in the absence of such words, however, construction of the will as a whole may indicate that the testator intended to separate the item in question from the rest of his or her property. It should also be noted in relation to specific gifts that such gifts

may include items of a fluctuating nature, so that the subject matter of the gift may be capable of decreasing or increasing between the date of the will and the date of death. Thus gifts of ‘all my silverware to Y’ or ‘all my shares in Xanadu Company to Z’ are specific in nature, and the respective beneficiaries will take any additional silverware or shares purchased after the date of the will and still in existence at the testator’s death.

General legacies 9.4 A testator may leave a gift in the following form: ‘I give to my niece a Ferrari motor vehicle.’ In the same will he leaves a gift to his nephew of ‘one thousand dollars’ and a gift to his great-aunt of ‘five hundred shares in Downunder Productions Pty Ltd’. Each of these gifts is a general legacy, in that it is immaterial that the testator actually owned such items of property at the date of death. Such a gift does not refer to the testator’s actual property, and the legacy is to be furnished out of the general estate. The effect of the gift is to compel the executors of the will to purchase property of that description for the beneficiary, or alternatively to pay to him or her the value of that property.2 Gifts of shares are prima facie general in this sense, but may be specific if so described. For example, a gift of ‘(my) 1000 shares in X Co’ or even ‘1000 shares in X Co’ will be regarded as specific if the testator owns that exact amount of shares at death.3 [page 239]

Demonstrative legacies 9.5 This type of legacy is a gift of a general nature (usually money) which, however, is directed to be paid out of a specified fund or a particular part of the testator’s estate. Thus a testator may make a gift of ‘ten thousand dollars to be paid out of my bank account at the Van Dieman Bank Ltd’. It is a matter of intention as to whether that gift is to be treated as specific or

demonstrative, but a gift in this form will normally be held to be demonstrative. If so, it does not matter that there may be an inadequate amount in the designated fund as the shortfall is to be made up from the general estate of the testator. In Re Webster,4 for example, the testator left a gift to his son of £3000 to be paid out of a particular business. On the testator’s death, the business was worth less than the specified sum. The court held that the gift was demonstrative, and therefore the son received not only the value of the business, but was entitled also to call upon the general estate to make up the difference. If the gift were to be treated as specific, however, then ademption would have occurred: see 9.8 below. For a gift to be demonstrative, the words of the will must indicate that the gift shall be taken (primarily) out of a particular fund, but if the fund is inadequate, or indeed, has gone out of existence, then call may be made on the general estate.5

Pecuniary legacies 9.6 This is an odd classification, and one that is not really helpful. A pecuniary legacy is a gift of a sum of money. That gift may be either specific, general or demonstrative. Usually, however, it is a general legacy, although it can be specific, for example, ‘all the money contained in the shoe box in my study’.

Residuary devises and legacies 9.7 A residuary devise or legacy technically comprises all property not already disposed of in the will. It will comprise that property which remains after the payment of debts, liabilities and other devises or legacies under the will. A typical residuary gift is ‘I devise and bequeath [or give] the remainder of my real and personal estate to my husband’.6 It is important to note that should a legacy or devise fail for any particular reason then that gift will fall into residue and become part of the residuary estate, unless there is a contrary intention expressed in the will. Thus, in Re Leitch,7 for example, the testator left a life interest in a 50 acre property and residence to her nephews and

nieces. After the expiration of these interests, the will provided that the estate was to be sold and divided. However, she signed the will without completing the [page 240] clause in that it did not specify the intended recipients. The gift thus failed because the objects were not specified with sufficient certainty. There was, however, a residuary clause in the will that left the residue to the Presbyterian Church. There being no contrary intention in the will, the failed gift fell into the residuary estate and went to the church. If the residuary gift itself should fail, then that part of the estate will fall to be distributed according to the intestacy rules. This principle is given statutory force in all jurisdictions, although in some is limited to devises of realty. The legislation also states that it is subject to a contrary intention.8

Doctrine of ademption General 9.8 The effect of this doctrine is well illustrated by the decision in Durrant v Friend.9 The testator in that case was a master of a ship on a voyage to India. Under his will he left a gift of specific chattels to a legatee including his sea clothing, charts, quadrant, sextant, telescope, compasses and two flutes. The ship was lost at sea and the goods perished, along with the testator. The chattels were insured, but the court held that the gift was adeemed, so that the legatee had no claim on the insurance money, which went to the residuary estate. Ademption had occurred in that the gift was no longer in existence at the death of the testator. The general principle therefore is that a specific gift will fail by ademption if the subject matter of the gift ceases to exist as part of the testator’s property

at the time of death. Thus, if the specific property is sold by the testator, or if it ceases to exist, for example, if the gift is ‘my Tom Roberts painting’ and the painting is destroyed by fire before the testator’s death, then ademption will occur, and the beneficiary will take nothing. As the High Court explained in Brown v Heffer:10 Ademption of a specific gift by will occurs where the property the subject of the gift is at the testator’s death no longer his to dispose of … an obvious case of ademption is that in which the testator has completely divested himself of the property in his lifetime so that at his death there is in his estate nothing which even substantially … answers the words of gift.11

Further, if the subject matter of the gift no longer conforms to its original description, ademption will also occur. Difficulties can occur here in relation to gift of shares, and these are discussed below: see 9.10. [page 241]

Applies only to specific gifts 9.9 The distinction between specific and other gifts is discussed above: see 9.3. It is important to note that the doctrine of ademption only operates on specific gifts, and not general ones. Because of this, the tendency of the courts is to classify a gift as general rather than specific, if possible, and so avoid ademption.12

Changes in nature of gift 9.10 Often there will be a question as to whether the gift, although changed, is still substantially in existence. If it has been sold, for example, then no doubt will arise, and the beneficiary is not permitted to trace the procedure of that sale into other property.13 A testator may leave a gift of ‘my house situate in Trumpeter Street’ and then sell the house and invest the proceeds in shares in the Commonwealth Bank. The gift is adeemed, and the beneficiary may not trace the proceeds. He or she has no claim on the shares. The legatee in Durrant v Friend,14 discussed above in 9.8, similarly had no

claim on the insurance funds. If, however, the change is in name and form only, then ademption will not occur. In Re Slater15 Cozens-Hardy MR stated the test as follows: You have to ask yourself, where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing.16

Most of the difficulties in this area are caused by gifts of shares. Capital reorganisation, or reconstruction, amalgamations and takeovers and nationalisation may all have the effect of changing the nature of shares held in an organisation by an individual. If shares are left in a will as a specific gift, the question will often arise as to whether they have been adeemed by the events described: if the change is substantial then ademption will occur; if in name and form only, then the beneficiary will be entitled. Obviously, the matter is a question of fact in each particular case, but the following cases serve to illustrate the principle. Ademption occurred in Re Slater17 where the testator had held shares in the Lambeth Waterworks Company. Those shares were the subject of a specific gift in the will. The company was taken over by the Metropolitan Water Board and the testator was issued with shares in the board. The latter shares were held not to be substantially the same as the earlier shares, as the two organisations were of a different nature. In Re Grey,18 a similar result was reached where the original shares were held in a banking partnership and were unlimited in [page 242] nature. The partnership was converted into a limited liability company so that the gift was adeemed. On the other side of the line is Re Clifford19 where the testator made a gift of ‘twenty-three of the shares belonging to me in the London County Banking Company Limited’. When the will was made he held 104 £80 shares. The company was amalgamated with another, and the shares

were subdivided into four new £20 shares so that on the testator’s death he held 416 £20 shares. No ademption occurred as the change was in name and form only so that the beneficiary was entitled to 92 of the new £20 shares. Finally, in McBride v Hudson20 the gift was 196 £10 shares in Elder Smith & Co Ltd. Between the date of the will and the testator’s death the company subdivided each share into 10 shares of £1 value. No ademption occurred and the beneficiary took 1960 £1 shares. There had been no change in substance.

Ademption not by testator 9.11 Despite the established principle that the doctrine of ademption is not based on intention, there have been some specific exceptions admitted, mainly in circumstances where the testator had no notice of the circumstances involving a possible ademption. The first is where the testator’s property is disposed of by means of a fraudulent or tortious act without the testator’s knowledge,21 and the second is where there is a disposal by the fraudulent action of an agent of the testator.22 Lack of knowledge of these acts appears to be essential for these exemptions to apply.23 More recently, the matter has arisen in the context of a disposition made on behalf of a testator who lacks capacity. The decision of Thomas J in Re Viertel24 provides an example of the factual matrix which arises. There the testator made a will in 1982 devising her house and furniture and effects to beneficiaries. Subsequently, the testator was admitted to a nursing home and sometime later appointed the beneficiaries as her attorneys pursuant to an enduring power of attorney. Her mental condition deteriorated to the extent that she was plainly incapable of managing her affairs or making a will. Pursuant to the power of attorney, the beneficiaries, in ignorance of what was contained in the will, sold the house and invested the proceeds of sale in the name of the deceased in debenture stock. Thomas J held that in these circumstances ademption did not apply, and the beneficiaries were therefore entitled under the will to the proceeds of sale. His Honour preferred to state this as an exception to the doctrine of ademption,25 placing particular

emphasis on the fact [page 243] that the attorneys’ action was made in ignorance of the terms of the will and the likewise ignorance of the testator of the action of the attorneys. In addition, the intention of the testator as disclosed in the will to benefit the devisees was never altered. In the absence of such knowledge, the testator would not have had an opportunity of altering the will. His Honour, in a wide ranging judgment covering both Canadian and American authority, stated that the wider exception was justified by the judgment of Stuart VC in Jenkins v Jones.26 There the testator, a farmer, gifted to his son all his farming stock ‘which shall be in my possession at my decease’. Subsequently he became mentally incapacitated and was unable to manage his own affairs. Consequently the testator’s wife and the son sold the farming stock, and deposited the proceeds in a bank account where it remained until after the death of the testator. It was then paid to a seperate account of the son. The plaintiffs, next of kin of the deceased, brought proceedings against the son seeking to charge him with the amount received by him. Stuart VC dismissed the claim, stating: The farming stock ceased to exist, but the money was placed in a bank and there remained, and it clearly represented the value of the subject matter of the bequest. The person who changed the character of the chattels was the legatee, to whom and for whose benefit they had been specifically bequeathed … I think that as it was by no act of the testator that the chattels were converted, for he never intended any conversion, but intended that the specific legatee should have his farming stock, I ought to refuse the motion … The intention of the testator in this case is clear. The conversion of the stock was inevitable, and I cannot hold that the specific legatee’s claim to the proceeds ought to be rejected.27

Thomas J, in Re Viertel,28 concluded as follows: With some hesitation I express the view that the rule recognised by Stuart VC in Jenkins v Jones above is an historical exception to the consequence of ademption and that the present circumstances fall within that exception. That case is not referred to in Re Salter, where a very wide statement of the law concerning ademption was formulated … However I can see no

reason why Jenkins v Jones should be regarded as having been overruled, and in principle I regard it as expressing a reasonable exception which ought to be followed.29

Apart from some exceptions, that principle has been consistently followed and applied in Australian law. Thus in Re Affairs of Hartigan; Ex parte the Public Trustee,30 the public trustee sought directions on the administration of the affairs of the estate of Miss Hartigan, an elderly lady unable by virtue of her mental condition to manage her own affairs and without mental capacity to make a will. She was the registered proprietor of real estate, and had executed a will in 1994, by which she made express provision for the sale of that property and for distribution of the proceeds to a number of beneficiaries. Apart from the real estate, [page 244] Miss Hartigan had few other assets. The Public Trustee desired to sell the real estate in order to facilitate the payment of nursing home fees and other expenses on behalf of Miss Hartigan. However, the Public Trustee was concerned as to the possible consequences of such a sale, and accordingly asked for the opinion of the court whether the sale would adeem the devise of the property under the will. After considering the relevant authorities including Re Slater and Re Viertel, Parker J expressed the opinion that the sale of the property would not adeem the devise of it. Referring to Re Viertel, Parker J stated: I have, with respect, found the analysis of the position and reasoning of Thomas J helpful and persuasive. The heart of that reasoning turns on the sale of property by a person other than the testator at a time when the testator is incapable of selling the property or of altering an existing will to give effect to the testator’s intentions and the changed circumstances. If that is correct it ought not to be a material distinction whether or not the person effecting the sale knew of the terms of the will.31

There are a number of other recent decisions which lend support to the exception. Kaye J of the Victorian Supreme Court in Mulhall v Kelly,32 in circumstances almost identical to that which arose in Re Viertel33 endorsed

the principle in that case, holding that the subject property was sold at the time when the testator was herself incapable of selling the property, or altering her will to give effect to her intentions and her changed circumstances. She was unaware and incapable of being aware of the sale of that property. Similiarly, McMurdo J of the Queensland Supreme Court, in Ensor v Frisby,34 again in circumstances identical to Re Viertel,35 preferred to follow that decision, so that the beneficiaries under the will were entitled to the identified proceeds of sale of the property. More recently still, Gzell J of the New South Wales Supreme Court briefly reviewed the authorities in Power v Power36 and while inclining to the general principle expressed in Re Viertel37 found on the facts that the sale under the power of attorney was made without authority, so the exception discussed above viz, the sale by unauthorised act by agent, was applicable so there was no ademption on that basis. His Honour therefore found it unnecessary to express a conclusive view on the wider exception. Finally, in this review of the case law, there is the decision of Hargrave J of the Supreme Court of Victoria in Simpson v Cunning,38 where again the decision in Re Viertel39 was approved and applied. The circumstances in that case were identical to those in Viertel, except there the attorney was advised by the Public Advocate that the [page 245] deceased’s house would need to be sold to fund an accommodation bond to secure permanent nursing home accommodation. There was, until recently, little contrary authority. In Orr v Slender,40 Nicholas J of the New South Wales Supreme Court referred only to the exception where it can be shown that the property ceased to be part of the testator’s estate because of an unauthorised action of an agent or by a tortious act which was unknown to the testator, thus confining the exception to its traditional limits. There was no reference to Re Viertel,41 explicable perhaps

because the case really turned on a consideration and interpretation of the Powers of Attorney Act 2003 (NSW) and s 163B of the Conveyancing Act 1919 (NSW).42 The decision in Re Viertel, was, however, given consideration in the United Kingdom case of Banks v National Westminster Bank plc43 and not followed. Judge Rich QC confined the Jenkins v Jones44 exception to cases where the conversion of property ‘is not only made without the testator’s knowledge but also without either his or any other lawful authority’. In Jenkins v Jones the decision does not depend upon the ignorance of the testator; it is the absence of his intention to convert the property, because of course his family were acting without either his consent or other lawful authority, which, in my judgment, justifies the court’s decision. I accept Thomas J’s view that Jenkins v Jones had not been overruled. It is not, however, in my judgment, authority for the proposition for which Mr Dew contends. It is authority only for what was adumbrated in Shaftsbury’s case, namely that if the subject-matter is extinguished by fraud or by tortious acts unknown to the testator then an ademption would not follow.45

The preponderance of Australian authority thus was in favour of the acceptance of the extended exception established in Re Viertel.46 Admittedly, those decisions are of single judges and, as was pointed out by Hargrave J in Simpson v Cunning,47 the conclusion of Thomas J in Re Viertel was made with some hesitation, as the application was unopposed and the only case where the reasoning in Re Viertel had been subjected to contrary submissions, prior to the decision in Simpson v Cunning48 itself, was the decision of McMurdo J in Ensor v Frisby.49 His Honour noted that even in that case counsel for the residuary beneficiary, who stood to gain from a finding of ademption, principally relied upon a submission that the law of ademption had been supplanted by legislation, so that there was no vigorous argument in opposition. [page 246] Such argument occurred, however, in Simpson v Cunning.50 Hargrave J rejected the defendant’s counsels’ submissions to the effect that the decision

in Re Viertel and cases which have followed it have the result that a testator’s testamentary intent to leave specific property was supplanted by the attorney’s discretion or that of the court, and, further, was against public policy. His Honour did accept, however, that the opinion in Re Viertel was hesitantly expressed and that the further exception is apparently inconsistent with the general principle of ademption as stated by Cozens-Hardy MR in Slater v Slater.51 Nevertheless, he did not accept that ‘these factors militate against acceptance of the further exception’.52 His Honour further noted that the strict application of the ademption principle may lead to the possibility of a distinctly unjust result and not in accordance with the testator’s obvious intentions. However, his Honour preferred to base the exception not on the decision in Jenkins v Jones,53 but rather there was a further exception. He concluded as follows: In my opinion, the statements in Jenkins v Jones were not intended to create a new exception to the ademption principle. Rather, as held in Banks v National Westminster Bank, Jenkins v Jones was an application of the existing exception for unauthorised dispositions of the relevant asset without the knowledge or consent of the testator. However, I am nevertheless of the view that a further exception to the ademption principle, to the effect expressed in Re Viertel, constitutes a justified extension of the common law to reflect current circumstances. People are living longer than in the past and their physical health is outlasting their mental capacity. It is commonplace for properties owned by incapacitated persons to be sold under the authority of enduring powers of attorney, to fund accommodation bonds and other necessities and comforts for an ageing population. Further, as noted, there is no good reason why the position should be different if, in the absence of an applicable enduring power of attorney, it is necessary to appoint an administrator under the Guardianship and Administration Act to sell property of an incapacitated person for such purposes.54

Despite these expressions of opinion, the matter came before the New South Wales Court of Appeal in RL v New South Wales Trustee and Guardian.55 Being a decision of an intermediate appellate court, it carries much authority, even if confined to New South Wales.56 The major judgment was delivered by Campbell JA.57 In a scholarly and exhaustive examination of the original lunacy laws of England and their subsequent adoption by legislation in New South Wales, his Honour addressed the matter of ademption, a matter relevant on the facts.58

[page 247] There is an emphatic rejection of the decision in Re Viertel59 in the judgment, and of the authorities which have since followed it, discussed above. The case involved the sale of a lock-up garage in 2009, belonging to the deceased when she was still alive but aged 95 and suffering from advanced dementia. In 2006, the New South Wales Guardianship Tribunal appointed her eldest niece, RL, as her financial manager. By her will, executed in 1999, the testator left the garage to one A, the residue being left to RL and her two siblings. The New South Wales Trustee set aside $75,000 (the sum attributed to the sale) from the rest of the testator’s funds. This decision was challenged by RL. Of course, when the sale took place, the testator was still alive, but the question of ademption arose because of the effect in New South Wales of statutory provisions60 providing for management of a managed person’s affairs. The decision of the New South Wales Trustee to set aside the sum was justified under the provisions of that Act, but, importantly, in the absence of such legislation, there would have been ademption. Campbell JA explained as follows: We were referred to a line of first instance cases stemming from Re Viertel [1996] QSC 66; [1997] 1 Qd R 110. They held that if the property of an incapable person was disposed of pursuant to an enduring power of attorney, the disposition would not effect an ademption of a specific gift of that property in the will of the incapable person. The cases contemplate that such a result could arise if there is no ground for challenging the disposition arising from it being carried out dishonestly or in excess of authority or in some other fashion wrongfully. I have come to the view that, notwithstanding these cases, if PBL had retained capacity and sold the garage, the bequest to Mr A would have been adeemed. I have come to the conclusion that when RL sold the garage with proper legal authority from the NSW Trustee to do so, that sale would likewise have effected an ademption of the bequest, were it not for the existence of a statutory provision such as s 83 of the 2009 Act. The reasons for reaching that conclusion are lengthy, and involve consideration of numerous cases. Rather than interfere with the main flow of the reasoning in this judgment, I have set them out in Appendix B to these reasons ([125]–[187] below).61

As his Honour points out, Appendix B of the reasons contains a critique of the decision in Re Viertel,62 which his Honour regarded as an unjustified

extension to the established exceptions to ademption, and the decisions relied upon by Thomas J in that case, including Jenkins v Jones,63 as well as the subsequent authorities discussed above. His Honour concluded that if the law was as stated in Re Viertel, then the statutory provision in the Powers of Attorney Act 2003 (NSW)64 would be unnecessary. This decision has also been recently followed by the Supreme Court of Queensland in Trust Co Ltd v Gibson.65 [page 248] It remains to be seen as to the effect this decision will have in the other jurisdictions. Certainly it is persuasive, and should alert state and territory legislatures of the need for amendment legislation, a matter addressed further below. Browne, in his examination of the issue,66 states as follows: A prudent will-maker would now be well advised to take preventative action to lessen the possibility of an adeemed gift. For instance, they could include a substitute arrangement if the gifted asset no longer existed at their death. A common substitute arrangement is the gifting of the proceeds from the sale of the asset. The will-maker could provide a copy of the will to the enduring attorney or authorise the attorney to have access to the will if the need arose. This would lessen the likelihood of the attorney inadvertently disposing of the asset.

Ademption not by testator — specific statutory provisions 9.12 The above analysis may be effected by specific statutory provisions, and particularly those relating to persons subject to guardianship orders under the various guardianship legislation of all jurisdictions. For example, the Guardianship and Administration Board Act 1986 (Vic) provides, in s 53, that represented people have the ‘same interest in any money, or other property arising from any sale, mortgage, exchange, partition, or other disposition’ of property made by that person’s guardian. This extends to their next of kin and other possible beneficiaries. The section has been widely and beneficially interpreted. Thus in Daniels & Allaway v Scrivenor & Pitt,67 an administrator had been appointed in respect of the affairs of the testator. By

an earlier will, the testator had left a specific gift of money in a particular account to beneficiaries. The administrator withdrew a substantial sum from that account and re-invested in a better income-providing investment. It was held that no ademption had occurred. While the court acknowledged that the change in the asset was substantial and not one of mere change in name and form, the action of the administrator was within the statutory powers, and under specific provisions of the Act (noted above) to the effect that the interest of a represented person in property is not to be altered by the sale or other disposition of the property, ademption had no application. The judge placed specific reliance on this view by reference to an earlier Tasmanian decision in In Re Parkinson; Public Trustee v Tanner,68 which under the lunacy legislation of that state came to a similar view. In both cases, the word ‘disposition’ in the respective legislation was not give a restricted meaning. Thus Gibson J said in In Re Parkinson; Public Trustee v Tanner: I think that the conclusion at which I have arrived is supported by a consideration of the intention of Parliament in relation to this topic of

[page 249] lunacy administration. If the word ‘disposition’ had a clearly defined and unvaried content such an inquiry might be of no great value. But its meaning is capable of considerable variation, and is susceptible, in my opinion, of the meaning I have already attributed to it, as well as more restricted meanings. Having regard to the mischief to be remedied, I think that the word should be construed in a large sense, so as to minimise the frustration of testamentary intentions where the patient’s interests have required interference with the patient’s property.69

Gray J, in Daniels & Allaway v Scrivenor & Pitt,70 expressly agreed with this view, stating that the purpose of the statutory provision is to save gifts made by the protected person which would otherwise be adeemed by the administrator, who may know nothing of the contents of the protected person’s will. His Honour noted that one of the most commonplace and likely activities of an administrator is to withdraw funds from a bank where the fund is the subject of a specific legacy: ‘If the withdrawal of funds defeated

such a legacy, it would represent a serious deficiency in the effectiveness of [the statutory provision].’71 Given this, the question may be asked as to why the same statutory protection should not be given to authorised acts of disposition made by an attorney acting under an enduring power of attorney, and so avoiding ademption. This matter was addressed by Hargrave J of the Victorian Supreme Court in Simpson v Cunning72 in a plea for statutory reform: In my opinion, there is no sound reason why a sale by an administrator, appointed to fill a gap where there is no enduring power of attorney, should lead to a different result than a sale by an attorney in like circumstances. In either case, there has been an authorised sale of the relevant asset without the knowledge of a deceased who lacked testamentary capacity.

Statutory reform has, however, occurred in New South Wales. The Powers of Attorney Act 2003 (NSW) in s 23(1) and (2) provides as follows: (1) Any person who is named as a beneficiary (a named beneficiary) under the will of a deceased principle who executed an enduring power of attorney has the same interest in any surplus money or other property arising from any sale, mortgage, charge or disposition or any property or other dealing with property by the attorney under the power of attorney as the named beneficiary would have had in the property the subject of the sale, mortgage, charge, disposition or dealing, if no sale, mortgage, charge, disposition or dealing had been made. (2) The surplus money or other property arising as referred to in subsection (1) is taken to be of the same nature as the property sold, mortgaged, charged, disposed of or dealt with.

This brings the law in that state regarding powers of attorney to simulate that regarding sale by administration. In the other jurisdictions, however, reliance must be placed on the Re Viertel exception to avoid ademption. [page 250] It is strongly suggested that given the relatively uncertain nature of that authority endorsing it, all jurisdictions adopt similar legislation in respect to sale under a power of attorney as that in New South Wales. This has recently been achieved in Tasmania, with the passage of the

Powers of Attorney Amendment Act 2013 through parliament. This reversed the principle of ademption in that if there has been a sale by an attorney, the relevant beneficiary will take the same interest in any surplus money or other property arising from a dealing with the property by the attorney under the enduring power of attorney as that beneficiary would have had if the dealing had not been made. Application to the Supreme Court to give fair effect to their provision is provided for in the legislative amendment. In South Australia, the Powers of Attorney and Agents Act 1984, in s 11A(1), provides for similar protection where there is a case in which the beneficiary suffers disadvantage, particularly in cases of legal incapability of the principal. This would presumably cover cases of ademption. In Queensland the Powers of Attorney Act 1988 similarly provides for compensation of loss of benefit of the estate, but it was held in Ensor v Frisby73 that the provision only applied when there had been an ademption but did not affect the common law as to the circumstances in which an ademption occurred.74

Contracts and options 9.13 Say that a testator leaves a specific gift of real estate to his son. After the will is made, he enters into a contract to sell the real estate to another. Before the contract can be completed, the testator dies. The contract is then completed by the executors who receive the proceeds. May the son claim the proceeds of the sale, or is the gift adeemed so that he receives nothing? The general principle is that ademption will occur in these circumstances.75 The reason for this is that the subject matter of the gift no longer belongs to the testator, as the equitable estate has passed to the purchaser under the contract.76 Ademption may be avoided in these circumstances if the court can construe the gift in the will as including the proceeds of sale.77 If the contract is made before the will containing the specific gift, then generally there is no doubt that the beneficiary is entitled to the proceeds of sale as it was the intention of the testator that the beneficiary should take the property with the

benefit of the contract.78 Similar principles apply to options. Thus an option to purchase granted by the testator after the date of the will results in ademption of [page 251] the specific gift, the subject of the option, even if the option is exercised after the testator’s death. The beneficiary again takes nothing.79 As in the case of contracts, however, if the option is granted before the will, then the exercise of the option does not adeem the gift.80

Effect of s 24 of Wills Act (UK) and Australian equivalents 9.14 While this section is not only relevant to the topic of ademption and has been discussed above in a general way in Chapter 8 (see 8.37), it is also convenient to discuss it here. Provisions based upon it are repeated in all Australian jurisdictions. Section 30 of the Succession Act 2006 (NSW) is typical. It provides: (1) A will takes effect with respect to the property disposed of by the will as if it has been executed immediately before the death of the testator. (2) This section does not apply if a contrary intention appears in the will.81

Thus, unless otherwise made clear in the will, or, in Victoria and the Northern Territory, elsewhere apart from the will, the property of a testator left by the will comprises the property answering that description at the date of death of the testator. Problems arise in some cases involving ademption where the testator has left a specific gift, disposes of it, and later acquires a similar item of property. If, for example, a testator should leave a gift of ‘my piano’ or ‘my motor bike’, sells the piano or bike, and then acquires another piano or bike, does ademption occur? According to Re Sikes82 where the gift was ‘my piano’, ademption occurred where the testator disposed of the original piano and

purchased another. This was because a contrary intention had been shown so that the section did not apply: the testator meant the piano owned at the date of the will, not death.83 It is difficult to reconcile that decision, however, with the Victorian case of In Will of Smith.84 There the testator left a gift of ‘my house and land in Urquhart Street, Coburg’ to his wife. At the time the will was made he owned 44 Urquhart Street, but before his death purchased 46 Urquhart Street and then sold 44. The Full Court of the Victorian Supreme Court held that there had been no ademption and the wife was therefore entitled to 46 Urquhart Street. The section was applied, no contrary intention being shown. In the words of Madden CJ (at 544): There is nothing strange or absurd in assuming that the testator intended to substitute the one house for the other, and left his will unaltered simply because he intended it to pass his house … There is nothing in the will

[page 252] itself inconsistent with the supposition that he intended this house, which still remained part of his estate, to pass.

Given the terms of the section itself, the decision in Smith seems preferable to that in Sikes, but much will depend upon the actual terms of the will and the surrounding circumstances.85

Doctrine of lapse General 9.15 If a testator leaves a gift in a will to a beneficiary and the beneficiary dies before the testator,86 then normally the gift will fail because of the doctrine of lapse. The personal representatives of the deceased beneficiary have no claim under the disposition. If the gift is not residuary, then it will fall into the residuary estate. If the gift itself is residuary, then it will be

distributed according to the rules relating to intestacy. Thus, if Thomas in his will leaves a gift ‘of my house situate in Taroona to Timothy’ and Timothy dies before Thomas the gift will lapse in this sense.

Substitutional clauses 9.16 Because of the doctrine of lapse, it is common for professionally drawn wills to contain substitutional clauses. A testator cannot avoid the doctrine by a declaration that it is not to apply,87 but may prevent lapse by an alternative disposition. In the case of the gift left by Thomas in 9.15 above, a substitutional clause may read ‘I leave my house situate in Taroona to Timothy but if he predeceases me I leave the same house to Tinker’. It is also possible to make an alternative disposition to the personal representatives of the intended beneficiary, for example, Timothy, and if so the doctrine of lapse is neatly avoided.88

Common law exceptions to doctrine: obligations 9.17 This exception springs from a dictum of Farwell J in the case of Stevens v King89 to the following effect: … if the court finds upon the true construction of the will that the testator clearly intended not to give a mere bounty to the legatee, but to discharge what he regarded as a moral obligation, whether it were legally binding or not, and if that obligation still exists at the testator’s death, there is no

[page 253] necessary failure of the testator’s object merely because the legatee dies in his lifetime; and therefore death in such a case does not cause a lapse.90

In Re Leach,91 for example, the testator in her will recited a debt owed by her son to one P at the time of her son’s death. She directed her executors ‘to pay the sum of £1000 to the said P’. P predeceased the testator, but the court held that there had been no lapse.

The extent of the principle is unclear. In the quotation from Farwell J it is noted that the exception is not limited to legally enforceable obligations and, indeed, the decision in Re Leach is based on the obligation of the son, as clearly there was no legal obligation imposed upon the testator. It has been suggested that the exception should be limited to applying only to the discharge of debts.

Common law exceptions to doctrine: charities 9.18 A legacy may be left to a charitable organisation that ceases to exist before the death of the testator. In some circumstances, lapse will not occur in this event, particularly if a general charitable intent can be gathered from the words of the will. An illustration of this principle is provided by the decision of the Supreme Court of Western Australia in Public Trustee v Cerebral Palsy Association of Western Australia Ltd.92 There the testator devised his estate to the Spastic Welfare Association of Western Australia, with a gift over to the Salvation Army (Western Australia) Property Trust, should the Association no longer exist at the date of his death. In fact the Association was dissolved after the will was made, and its property became the property (including right and liabilities) of the Cerebral Palsy Association. Lapse did not occur as the court found that for all practicable interests and charitable purposes, the Spastic Welfare Association did not cease to exist, and was subsumed by the Cerebral Palsy Association. In the alternative, the court held that even if the Association had ceased to exist, the exception relating to a general charitable purpose would apply to save the gift from lapse. The general principles are discussed in some detail in Re Tyrie (No 1)93 and by Dal Pont in considerable detail, who deals both with the common law and statutory positions.94

Statutory prevention 9.19 In South Australia95 the statutory provisions provide that a devise or bequest to issue of the testator does not lapse where the devisee or legatee dies before the testator if the devisee or legatee leaves issue who are living at the

testator’s death. The section is subject to a contrary [page 254] intention appearing in the will. It is thus possible for a testator to avoid the operation of the section (and the doctrine of lapse) by making substitutional provisions as discussed above in 9.16. The effect of the section may be illustrated by the following example. Thomas, the testator, makes a will, devising all his real estate to his son Sam. Sam himself has a son, Stan. Sam dies, and shortly thereafter Thomas dies. Normally, the doctrine of lapse would operate so that the gift to Sam would fail, but, provided Stan is still alive when Thomas dies, the gift to Sam is saved by the operation of the statutory provision. Because the provision concentrates on the issue of the deceased’s issue being alive at the testator’s death, one would have thought that Sam’s gift would pass to his issue, Stan, but unfortunately that is not the simple effect of the provision, as it further provides that the ‘devise or bequest shall not lapse but shall take effect as if the death [of the devisee or legatee] had happened immediately after the death of the testator’. This means that Stan may not necessarily take the real property. Sam, for example, may have made a will himself leaving all his property to his uncle, Albert. As the gift to Sam does not lapse, it forms part of Sam’s estate, and his will is effective to pass the gift of property to Albert. In other words, the effect of the provision is only to prevent lapse, and does not confer any benefit upon the surviving issue.96

Statutory substitution to issue 9.20 In the other jurisdictions there has been a substantial change to the position, both at common law and to the statutory provisions in South Australia, noted above. The statutory provisions basically provide that if the intended beneficiary, being issue of the testator, dies before the testator and

leaves issue, then that issue will take the gift that the deceased beneficiary would have taken.97 In other words, in the example used in 9.19 above, Sam’s gift passes to his issue, Stan. The effect of statute is, however, subject to a contrary intention appearing by the will.

Class gifts and joint tenancies 9.21 A class gift is a gift to a group of people, rather than an individual, that consists of persons who are included and comprehended under a general description, for example, a gift ‘to my children’. The law relating to lapse has little scope to play here. A testator who leaves a gift to a class of persons is normally taken to mean that he or she leaves the gift to those persons who belong to the class at, or after, the date of the [page 255] testator’s death. Thus, a child of the testator who dies before the testator never in reality becomes a member of the class.98 Similar principles apply to joint tenancies. A gift to two or more people as individuals, for example, ‘I leave my real property to Rick and Gene’, constitutes a joint tenancy if there are no words of severance.99 If, therefore, Rick should die before the testator, the right of survivorship operates, so that Gene’s interest is correspondingly enlarged and he will take the whole gift. This is not really a case of lapse, but rather depends upon the special nature of a joint tenancy as compared with a tenancy in common. If there is a tenancy in common created by the will then there will, of course, be lapse, if one tenant in common predeceases the testator. The fate of the gift will then depend upon any substitutional clause in the will or statutory provisions, as discussed above.

Disclaimer

9.22 A beneficiary under a will, or indeed, under intestacy, cannot be forced to accept the benefit, but may disclaim it. The usual, though not inevitable, reason for disclaiming is that the conditions that are attached to the gift are unacceptable or onerous. For example, the gift may be subject to such liabilities as may make it not worthwhile, such as a leasehold interest which is dilapidated and casts the onus to repair on the beneficiary.100 In Re Sullivan101 the beneficiary disclaimed a residuary gift that was subject to an unacceptable condition. In the result he was entitled under the intestacy rules to the entire estate, which he took, of course, free of the condition. 9.23

The following seven rules are the most relevant:102

(1) As disclaimer does not amount to a disposition of the property (it is treated as never having been acquired by the disclaiming party)103 it may be made by deed, in writing and by conduct. (2) A disclaimer may be made at any time before the beneficiary has derived any benefit from the gift, but not after acceptance.104 [page 256] (3) A disclaimer may not be retracted if the personal representative has acted upon it or other parties have altered their position in reliance upon it.105 (4) A disclaimer may be retracted and may be permitted when disclaimer is made without full knowledge of the extent and nature of the gift, or without full intention to disclaimer, but without these conditions, there will be effective disclaimer.106 (5) It would appear that if there are two or more gifts left to the same beneficiary, provided that they are independent, the beneficiary may disclaim some and not the others.107 Much will depend upon construction of the will here to ascertain whether the gifts are truly independent and whether there is any intention expressed in the will that the beneficiary is to take all or nothing. If the gift is of residue, the whole of the assets making up the residue must be taken.108 (6) In the case of intestacy, if a person entitled on intestacy disclaims the benefit, that benefit will pass to other members of the class to which the disclaiming beneficiary belonged, and if there are none, then to the next class entitled.109 (7) One cannot disclaim where there is no present entitlement. Thus in Re Smith (decd)110 the defendant executed a deed disclaiming all benefits in his favour which would arise on his mother’s death. In the event his mother later left him and his brother personal chattels and the residuary estate in equal shares. It was held that the disclaimer was ineffective, as it occurred before the testator’s death. As a will can always be revoked or varied, and does not

take effect until death, there was nothing that could be disclaimed.

Forfeiture for killing General 9.24 A well-established principle of the law is that if a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, then the interest in that property is forfeited. The rule is based upon public policy. In succession law, the rule applies to both wills and intestacies, so that if Albert makes a will leaving all his property to Ben, and Ben kills Albert, Ben is not entitled to claim the property that would otherwise have gone to him. [page 257] If there is no will, and Ben is entitled under the intestacy rules, he similarly cannot claim.111 Killing by way of murder or manslaughter is enough to invoke the doctrine, and in the case of manslaughter, it now appears that the degree of moral culpability may not be taken into account in assessing whether the rule should be applied or otherwise. In Public Trustee v Evans112 and Re Keitley113 it was held that the forfeiture rule should not be applied in circumstances that involved only nominal punishment for killing, intertwined with domestic violence by the deceased, and in Public Trustee v Fraser,114 Kearney J held that the public policy rule was based upon the notion of unconscionability and unjust enrichment, which necessarily led to an examination of moral culpability. These approaches have now been decisively rejected by a majority of the New South Wales Court of Appeal in Troja v Troja,115 Meagher JA commenting (at 299): The law as laid down … is that all felonious killings are contrary to public policy and hence, one

would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles.

This decision has been applied by the Supreme Court of Victoria in In the Matter of the Estate of Soukup,116 which disapproved of the previous Victorian decision in Re Keitley.117 More recently the Queensland Supreme Court in Public Trustee of Queensland v Public Trustee of Queensland118 confirmed the absolute nature of the rule in that jurisdiction holding that it extended to cases where the beneficiary under the will is convicted of assisting the suicide of the deceased, the Chief Justice commenting: If there is to be any change in that arena, it is a manner of high public policy for consideration by the legislature, not determination by the Courts. I should say that I am not to be taken to be inviting any such legislative consideration.119

Some reservations were, however, expressed by Atkinson J in the Queensland case of Pike v Pike.120 While confirming the applicability of the Troja v Troja121 approach in that jurisdiction, her Honour stated that it would be useful for the legislature to consider legislation consistent with the Forfeiture Acts in the United Kingdom, New South Wales and [page 258] the Australian Capital Territory: as to which see 9.26 below.122 The traditional approach has been followed in South Australia.123 There remains to be discussed the most recent examination of the issue by the Victorian Court of Appeal in Edwards v State Trustees Ltd,124 where divisions of opinion in the precise scope of the rule between the judges were evident. In that case, the factual circumstances were that the appellant and the deceased were married in 1998, and the deceased began acting violently towards the appellant in 1999 and that violence was frequent and ongoing (for a period of 12 years). The appellant had a history of depression and anxiety, and had been diagnosed as bipolar. In the months before the killing, the appellant stated that the deceased had become increasingly violent

towards her and repeatedly threatened to kill her. She said that the night before the offending the deceased had been up all night drinking and had been threatening to kill her. When the appellant awoke, the appellant said that the deceased had continued to physically assault her and had threatened to disfigure her and to set fire to her. The appellant said that she panicked and took hold of the deceased’s spear gun and shot it at the deceased. It bounced off but the appellant said that this aggravated the deceased and he grabbed a kitchen knife and came towards her. There was then said to be a struggle in which the deceased lost his balance and fell. The appellant said that she grabbed the knife and stabbed him ‘cos I was so — I was so frightened’. A post-mortem examination revealed that the deceased had suffered 30 separate injuries inflicted with the spear gun and the knife, some of which were defensive in nature. The appellant pleaded guilty to one count of defensive homicide. It was submitted on the appellant’s behalf that she believed her actions were necessary to defend herself from death or serious injury, but it was conceded that there were no reasonable grounds for that belief. She was sentenced to seven years’ imprisonment, with a non-parole period of four years and nine months. At first instance, the trial judge heard that the forfeiture rule applied, so that the appellant was not entitled to any benefit under the deceased’s will. The decision in Troja v Troja125 was followed and endorsed. On appeal, the court was unanimous in upholding the decision of the trial judge to the effect that the forfeiture rule was applicable in the circumstances but specifically differed in the scope and application of the rule. Whelan JA (with whom Kyrou JA agreed) extensively examined the authorities on manslaughter and also the decision in Troja v Troja,126 and concluded as follows in a passage which deserves to be set out in full: The various formulations of the ‘absolute and inflexible’ rule are not uniform. The trial judge held that the rule applied where the relevant act was deliberate and intentional and she doubted the need for violence. Meagher JA in Troja expressed the rule as being applicable where the

[page 259] death is a result of violent means. Mahoney JA in Troja said there was no difference in the rules’ application between murder and manslaughter but then suggested the possible existence of ‘borderline cases’. Gillard J in Soukup said there are no exceptions but then suggested the English cases which provide for exceptions are probably right. As to coherence with the criminal law, the forfeiture rule ought not to operate so as to preclude offenders whose criminality is such that they properly receive little or no punishment while not precluding offenders who commit crimes warranting substantial terms of imprisonment. The forfeiture rule should also operate in a manner which is coherent with the approach taken in other civil contexts. The only formulation which, in my opinion, can properly address this position, giving proper expression to the underlying public policy principle and to the need for coherence with the criminal law is one under which the nature of the particular crime determines the application of the principle. Cases of murder are straightforward and would always result in the offender being precluded. Cases of manslaughter have to be considered on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death? The issue is not determined by reference to whether the conduct is advertent or inadvertent, whether it is by violent means or by other means, whether it is behind the wheel of a car or whilst in possession of a weapon. If it is necessary to find the majority judgments in Troja were plainly wrong to reach this conclusion then in my opinion they were.127

Santamaria JA was, however, much more cautious and reserved in his consideration of the matter. Again, his judgment contains an extensive review of both the United Kingdom and Australian authorities, but under the doctrine of precedent, he held that the court was bound by the High Court decision in Helton v Allen128 and was also bound by the New South Wales Court of Appeal decision in Troja v Troja129 unless that decision could be distinguished or was plainly wrong.130 His Honour held emphatically that neither of these conditions was satisfied. There is also a detailed discussion of the concept of ‘public policy’ as it has been applied in this context and his Honour concluded his judgment with the following observations: In my opinion, there is no basis upon which this Court can confer upon itself the discretion which legislatures in other jurisdictions have conferred upon their courts. Further, the forfeiture rule is a rule of law and not simply a principle or maxim of equity. While the scope of the rule must be determined, where it applies there is no basis to give relief from its operation in any particular case. The rule is not just a conclusion which can be drawn after a court has considered

all the circumstances of the case and concluded that a beneficiary should not be entitled to receive any of the assets of the person that he or she has killed; it is not just a residual category. It is a rule that applies at the commencement of

[page 260] the enquiry; it is not simply a label to sum up the result of an enquiry. Although any court will have great sympathy for the circumstances of a person, such as the appellant, who has suffered violence at the hands of another, its sympathy does not justify it from excluding the application of the rule to her. Finally, there has been no relevant change in public policy. The expression ‘public policy’ does not refer to any stable concept. Notwithstanding that different sentences are used to express them, some propositions of law which are described as deriving from public policy are more readily set aside than others. At a general level, public policy underlies the principle that the law will not permit a wrongdoer to benefit from his wrong. At a more particular level, it provides that where a person who would otherwise obtain a benefit by the death of another has brought about the latter’s death by violent means, he or she shall not be entitled to take that benefit. Such propositions are part of the architecture of our law. If the shape of our law is to be changed, it must be parliament that does so. For these reasons, the appellant has failed to distinguish Helton or to show that Troja was ‘plainly wrong’.131

In summary, while this decision, particularly in the judgments of Whelan and Kyrou JJA, gives some future hope to a less inflexible application of the forfeiture rule at common law, the better approach for state legislatures to take would be to enact legislation equivalent to that already existing in the United Kingdom, New South Wales and the Australian Capital Territory: see 9.26 below. The matter has attracted detailed reports from the Tasmanian Law Reform Institute132 and the Victorian Law Reform Commission,133 both recommending statutory intervention along those lines. As a final point, it should be noted that there is an exception to the application of the forfeiture rule if the killer is found to be insane.134 Again, this is modified in the New South Wales and the Australian Capital Territory. In the normal case, the killer will have been convicted in the criminal courts of the crime, but as the matter is a civil, rather than a criminal one, there is a rule of evidence135 which applies in most Australian jurisdictions to the effect that a conviction or acquittal in a criminal case cannot be relied

upon in later civil proceedings. The standard of proof is therefore on the balance of probabilities.136

Effect of forfeiture 9.25 The effect of the application of the rule is that a specific gift to the killer will fall into the residuary estate, but if there is no residuary gift (or if the killer is solely entitled to that residuary gift) then the property subject [page 261] to the gift will be distributed as on intestacy.137 Of course, the killer is not entitled to take upon the intestacy. Particular problems are caused here where substitutional clauses (see 9.16 above) have been included in the will. It may be the case, for example, that the testator has provided that the gift is to go to the killer ‘X’, but if ‘X’ should predecease him or her, then to another. There are authorities which have taken a strict and literal view that as the killer has not technically predeceased the testator, the clause is of no effect so that an intestacy results,138 but in Public Trustee v Hayles,139 Young J held that the killer holds the benefit on trust for the persons that the court thinks on the evidence to be appropriate. In some circumstances this will result in the gift over being effective, if that was the testator’s wish.140 If there is no will, and thus an intestacy, the killer is excluded, so that the share he or she would have received goes to the others entitled under the intestacy rules.141 The rule will also apply in the case of joint tenancies. There, the killer will take the legal estate by right of survivorship, but will hold it in equity upon trust for himself or herself as to half and the estate of the victim as to the other half.142 There is also authority to the effect that the killer is disbarred from making an application under family provision legislation.143

Statutory modification in New South Wales and Australian

Capital Territory 9.26 The Forfeiture Act 1995 (NSW) and the Forfeiture Act 1991 (ACT) are partially based upon the provisions of the Forfeiture Act 1982 (UK). Section 5 of the New South Wales Act provides as follows: 5 Power of the Supreme Court to modify effect of forfeiture rule (1) If a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, any interested person may make an application to the Supreme Court for an order modifying the effect of the rule. (2) On any such application, the Court may make an order modifying the effect of the forfeiture rule if it is satisfied that justice requires the effect of the rule to be modified. (3) In determining whether justice requires the effect of the rule to be modified, the Court is to have regard to the following matters: (a) conduct of the offender,

[page 262] (b) the conduct of the deceased person, (c) the effect of the application of the rule on the offender or any other person, and (d) such other matters as appear to the Court to be material.

Under s 6 of the Act, the order may be in such terms and subject to such conditions as the court thinks fit, and, in particular, the court may exclude the operation of the rule in relation to all or part of any interest in property.144 The Act has no application to an unlawful killing constituting murder.145 The legislation also imposes time limits on any application146 and provides for revocation and variation of forfeiture modification orders, for example, if the offender is pardoned by the Governor after the making of the order, or if the offender’s conviction is quashed or set aside by a court after the making of the order and there are no further avenues of appeal available.147 The Act was amended in 2005148 to the effect that its general provisions now also apply to the case where the common law forfeiture rule is not applicable for the reason that the offender has been found not guilty of murder by reason of mental illness. Any interested person in those

circumstances may apply to the Supreme Court for an order that the rule applies as if the offender had been found guilty of murder.149 The court may then make an order applying the forfeiture rule if it is satisfied that justice requires the rule to be applied. Identical conditions governing the determination of the court in respect to a normal application are also applicable in this instance.150 The Australian Capital Territory has similar legislation in the Forfeiture Act 1991 (ACT). Thus, s 3 provides that where the forfeiture rule would be applicable, an application may be made to the Supreme Court for an order modifying the effect of the rule. Section 3(2) provides as follows: On an application under subsection (1), the Supreme Court may make an order modifying the effect of the forfeiture rule if satisfied that, having regard to the conduct of the offender and of the deceased and to any other

[page 263] circumstances that appear to the court to be material, the justice of the case requires the effect of the rule to be modified.

As in New South Wales, the court may exclude the operation of the rule in relation to all or part of any interest in property,151 and the Act has no application to an unlawful killing constituting murder.152 There is no equivalent provision as to revocation and modification orders nor does the legislation deal with the question of insanity. There is a three-month time limit for application, running from the day on which the offender is convicted of the offence.153 It would appear from the terms of the legislation in both jurisdictions that if a claim for family provision is denied because of the forfeiture rule, application may nevertheless still be made under the Acts for a forfeiture modification order. The terms of the New South Wales Act obviously requires a finding that the forfeiture rule was otherwise applicable, before application may be made

for a forfeiture modification order. In s 3, that rule is defined as the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing.154 It is therefore at least arguable that the Act does not prevent further account be taken by judges of developments in the common law application of the rule, and, indeed, the Explanatory Note accompanying the Bill as introduced into parliament explicitly states that the conferral of statutory discretion was not intended to prevent the development of the common law towards a more flexible approach to the application of the forfeiture rule. This was the approach taken by Peter Gibson J in In Re H (decd),155 in respect of the United Kingdom legislation, but, in practical terms, and given the actual decision of the Court of Appeal in Troja v Troja,156 the better view, at least in New South Wales, is to follow the English Court of Appeal’s approach in Dunbar v Plant.157 As Phillips LJ stated in that case,158 the Forfeiture Act has given the court a greater degree of flexibility than could have been achieved by judicial modification of the forfeiture rule, and the appropriate course where the application of the rule appears to conflict with the ends of justice is to exercise the powers given by the legislation. The legislation, as pointed out above, gives some guidance to the court for the exercise of the discretionary power including the conduct of the offender, the conduct of the deceased, the effect of the application of the rule and such other matters as appear to the court to be material. Dealing [page 264] with the United Kingdom legislation,159 Mummery LJ, in Dunbar v Plant160 stated that the court is entitled to take into account a whole range of circumstances relevant to the discretion, quite apart from the conduct of the offender and the deceased. These included the relationship between them, the

degree of moral culpability for what had happened, the nature of the gravity of the offence, the intentions of the deceased, the size of the estate and the value of the property in dispute, the financial position of the offender, and the moral claims of those who would be entitled to take the property on the application of the forfeiture rule. There are obviously many types of cases where a forfeiture modification order may be sought. The scope of the legislation has not yet received extensive judicial scrutiny, but cases decided under the equivalent legislation in the United Kingdom have indicated that orders are most likely to be made where the offender has been subjected to ongoing domestic violence and the killing is in response to that,161 where the offender suffers from severe diminished responsibility162 and where there has been a failed suicide pact.163 For example, in R v R164 there was an application on behalf of a 13-yearold boy who had killed his mother and sister when suffering from an abnormality of mind that substantially diminished his mental responsibility. He was convicted of manslaughter and sentenced to 10 years’ penal servitude. He was a beneficiary under his mother’s will, along with his half-brother. There was evidence before the court that the applicant’s abnormality of mind was largely the result of sexual, emotional and physical abuse by his father over many years. The application was supported by the half-brother and his mother’s mother. It was held in the circumstances that the forfeiture rule should not be applied thus allowing the applicant to take under the will. Similarly, in Lenaghan-Britton v Taylor,165 the applicant plaintiff had killed her grandmother, pleaded guilty to a charge of manslaughter that was accepted by the Crown on the basis of diminished responsibility and was sentenced to 11 years’ penal servitude. The plaintiff was a beneficiary under the grandmother’s will. Hodgson CJ held that while the crime was of extreme seriousness, there was no premeditation, the plaintiff had no intention to profit by it, and the crime only occurred because the plaintiff was mentally incapable of coping with looking after the grandmother. She was the only member of the family who had attempted to assist the grandmother in her old

age and had sold her own home in order to do so. She had attempted suicide on a number of occasions. In these [page 265] circumstances it was held that she had been appropriately punished for her crime, and modification of the forfeiture rule would not provide any incentive to any other person to act similarly, nor would it outrage the community. Modification was thus ordered allowing the plaintiff to take the benefit that she would otherwise have received under the will. A successful application was also made in Jans v Public Trustee,166 where the plaintiff killed his wife, but the Crown accepted a plea to manslaughter, based partially on diminished responsibility. On sentencing he was placed on a four-year good behaviour bond. Application for modification of the rule was successful as, if the forfeiture rule was applied, the plaintiff would have been left with no real assets. Importantly, the children, who were also beneficiaries, consented to the application that the rule be displaced. The judge also took into account the sentencing judge’s comments on sentencing.167 Finally, there remains to be considered the reversal of the common law rule in New South Wales that the forfeiture rule does not apply to cases where the killer is found not guilty of murder by reason of insanity. As noted above, s 10 of the Act defines ‘offender’ for the purposes of the Act as ‘a person who has killed another person and been found not guilty of murder by reason of mental illness’. Section 11(1) enables any interested person to make an application to the Supreme Court for an order that the forfeiture rule apply as if such an offender had been found guilty of murder. The court may then make an order applying the forfeiture rule if it is satisfied that justice requires the rule to be applied: s 11(2). In determining whether justice requires the rule to be applied, the court is to have regard to the following matters:

(a) the conduct of the offender; (b) the conduct of the deceased person; (c) the effect of the application of the rule on the offender or any other person; and (d) such other matters as to the court appear material.

The matter was considered in Public Trustee (NSW) v Fitter168 in circumstances where a husband, son and daughter killed the deceased. At the criminal trial, each was found not guilty of murder by reason of mental illness. Each was held under an order requiring a detainment in a psychiatric ward under the provisions of the Mental Health Review Tribunal legislation. The deceased was survived by her husband and both of her two children. The next of kin after them was the deceased’s only sibling, the fourth defendant. The fourth defendant applied by way of a cross-claim rule for an order under s 11 of the Act that the forfeiture rule applied in these circumstances, and was successful in that action. His Honour, Lloyd AJ, taking into account the conduct of the husband [page 266] since his detention and the conduct of the deceased — particularly the absence of blameworthy conduct on her part — required that the forfeiture rule should be applied. Accordingly, land held on joint tenancy by the accused and the deceased was to be held on trust as to one half interest for the fourth defendant and a similar result was reached in respect to the whole of the benefits that either the killer or his children might receive under the deceased’s superannuation policy. There was also a successful application in Estate of Raul Novosadek.169 There Young AJ commented:170 In circumstances where the Legislature has chosen to extend the application of the ruleto persons found not guilty of murder by reason of mental illness, it would be odd if criminal or moral culpability were the touchstone in determining whether the forfeiture rule should be applied. However, what authority there is seems to take into account the significant actions of the killer and the public revulsion that a person who has committed such actions should reap a

financial benefit from them.

His Honour, in acceding to the application took into consideration the fact that there was a triple killing, lack of evidence of a history of violence, but more particularly the killer’s extensive use of cannabis and its effect upon him. There was expert medical evidence to the effect that the killer was suffering from a paranoid schizophrenic disorder at the time of the killings (hence the not guilty verdict on the ground of mental illness) and his use of cannabis may have exacerbated or aggravated delusional beliefs at the time of the offence. Young AJ concluded as follows:171 The present case is not one where it can be said that the Defendant was aware that what he was doing was wrong at the time he did the killings. However, one must look at the event not only through the eyes of the Defendant, but also through the eyes of the public and ask whether the abhorrence of the killing of three family members, including a brother whose finances were committed to his care as guardian, in an event the occurrence of which was contributed to by voluntary use of cannabis, operates strongly against the person still being able to collect a financial benefit from his victim’s estate. The answer is that, it does.

Equitable doctrine of satisfaction General 9.27 The doctrine of satisfaction springs from a general equitable presumption to the effect that if a person is under an obligation to do an act, and then does some other act which can be regarded as fulfilling the original obligation, the latter act is presumed to have been done in substitution for that obligation (and not in addition to). In succession law, the doctrine operates in three distinct, but related, circumstances. [page 267] Satisfaction of legacies by legacies, though not an equitable doctrine, is also conveniently dealt with under this topic.

Satisfaction of commercial debts by legacies 9.28 Say that Alan owes Beth the sum of $5000. Alan executes a will in which he leaves a legacy to Beth of $5000. Is Beth entitled to both the debt and the legacy? In some circumstances, equity will presume that the legacy was intended in satisfaction of the debt, so that Beth can either claim the debt or the legacy, but not both.172 However, for the presumption to operate, a number of specific conditions must be present. First, the legacy must be equal to or greater than the debt.173 Second, the legacy must be as beneficial as the debt, so that if, for example, the legacy is contingent or uncertain in amount or is different in kind or is payable at a later time than the debt, the application of the doctrine is displaced. Further, the presumption will only apply in these circumstances if there is no contrary intention in the will. If, therefore, there is a direction in the will for the payment of debts, then that will be a sufficient indication to show a contrary intention.174

Satisfaction of portion debts by legacies 9.29 In this situation a parent175 confers a portion on his or her child, by a legally enforceable promise or obligation, and by a later will, leaves the child a legacy. Suppose that the portion is $20,000 and the legacy is the same amount. Again, can the child claim both? In some circumstances equity will presume satisfaction so that the portion debt will be satisfied by the legacy and the child may either take the debt or the legacy, but not both. The reasoning particularly underlying the principle, as in the case of equitable ademption discussed immediately below in 9.30, is that a parent intends to treat his or her children equally, and not give two gifts to one child. As was stated in Montefiorc v Guedalla:176 … the court will not impute to a parent the intention twice to discharge the same obligation of providing for his child — a rule founded as it seems to me on very sufficient reasons for there can be no doubt that in the absence of it, the affairs of families would in many cases be involved in the utmost confusion.177

[page 268] It is necessary for the operation of this rule for a ‘portion’ debt to be in existence. A portion may be described as a provision for the child, which is intended to establish the child in life, as opposed to a mere casual payment. In Taylor v Taylor178 Jessel MR stated: I have always understood that an advancement by way of portion is something given by the parent to establish the child in life, or to make what is called a provision for him … You may make the provision by way of marriage portion on the marriage of the child. You may make it on putting him into a profession or business in a variety of ways … Again, if in the absence of evidence you find a father giving a large sum to a child in one payment, there is a presumption that it is intended to start him in life or make a provision for him; but if a small sum is so given you may require evidence to show the purpose.

A portion debt, therefore, is an obligation created by the testator usually under a covenant, to make such a provision for the child. If there is such a covenant in existence, and it remains unperformed at the time of death, then equity will presume satisfaction of the portion debt by the legacy, either in full or pro-tanto. In other words, unlike satisfaction of commercial debts, even a legacy less in sum than the debt will be satisfaction of part of the debt, unless the presumption is rebutted.179 The presumption may be so rebutted if it can be shown that there is a substantial difference between the nature of the debt and the legacy,180 for example, if the portion debt is a covenant to pay money and the will contains a devise of land,181 or if there is a substantial difference in the actual sums involved in each gift. A direction to pay debts in the will also amounts to a contrary intention.182

Satisfaction of legacies by portions (sometimes called equitable ademption) 9.30 This is the converse situation to that considered immediately above. Here the parent executes a will, leaving the child, say, a legacy of $20,000, and subsequently makes, or legally promises to make, an inter vivos disposition of that same sum to that child. Again, is the child entitled to both? In these

circumstances, equity will presume that the testator/parent intended to displace the earlier legacy by the later disposition and therefore the child may not elect, but must take the later gift.183 It is therefore more correct to say that there has been ademption of the legacy in the will. For the doctrine to apply, the subsequent disposition must be in the nature of a portion, as discussed in 9.29 above, and there must be no substantial difference between the gift and the legacy. It has been said that much less is required to rebut the presumption of satisfaction of [page 269] portion debts by legacies than is required to rebut the presumption presently under discussion.184 An illustration of the principle is provided by the decision in Lake v Quinton.185 In that case, the testator left a residency gift to the children in his will. This included a child of his first marriage, Mrs Lake, and four children of his second marriage. Subsequent to the will he divorced his second wife, at which time he entered into two deeds. The effect of the deeds was to confer a contingent remainder interest on the four children of the second marriage in respect to both real and personal estate. Mrs Lake argued that the deeds effected an ademption of the residuary gifts to the four children in the will, an argument rejected at first instance. This decision was upheld by the New South Wales Court of Appeal in respect to the real estate. This was because there was a substantial difference between the nature of the gifts in the will and the deed. In particular the testamentary gift took effect immediately on the death of the testator, whereas the deed conferred contingent remainders only and could therefore be subject to long postponement. However, in respect to the gift of shares the court held that there had been pro-tanto equitable ademption. The interest conferred under the will was not sufficiently dissimilar to that conferred by the deed (the only contingency

here was age contingency, which was not sufficient to differentiate the gifts).

Satisfaction of legacies by legacies 9.31 Here the situation is quite simple. The testator makes a will in which he leaves a legacy of, say, $5000 to a beneficiary. Later, in the same will, he leaves an identical amount to the same beneficiary. Are the legacies cumulative or substitutional? Briefly, the three rules relating to double legacies are as follows: (1) if the testator indicates, either expressly or impliedly, that both legacies are payable, then that intention prevails; (2) if the testator’s intentions cannot be ascertained from the terms of the will, and the legacies are of the same amount and are given by the same instrument (or if in different instruments of the same amount, and given for the same motive) then prima facie there is a presumption that only one legacy is payable; and (3) if the legacies are of different amounts, or of a different nature, or are expressed to be given for different reasons then both legacies are payable. This will also be the case where contained in different instruments, subject to the above.186

[page 270]

Equitable doctrine of election General 9.32 Sometimes, either by mistake or by design, a testator may leave a gift of property to a beneficiary and then in the same will leave a gift of property belonging to that beneficiary to another person. The general principle here is that a person cannot take under a will without conforming to all its provisions: the beneficiary cannot approbate and reprobate.187 The equitable rule therefore is that the beneficiary is put to an election either to take the gift under the will and to transfer his or her own property to the other beneficiary, or to take against the will, that is, take the gift under the will and not transfer his or her own property but compensate the other party for not

receiving the beneficiary’s property.188

Example 9.33 Hopefully, the doctrine of election will become clearer through the following illustration. Gayle, the testator, makes a will in which she leaves $130,000 to Andrew, and Andrew’s block of land to Judy. Apart from disclaiming the gift altogether, Andrew has two options here: (1) He may take (under) the will. If he does so, then he will accept the legacy of $130,000 and transfer his block of land to Judy. Whether he adopts this course of action will no doubt be predicated on how much his block of land is actually worth. (2) He may take (against) the will. If he does so, then he will accept the legacy of $130,000 and retain his block of land. However, the doctrine of election requires him to compensate Judy for the property that she would have otherwise received. If, therefore, the block of land is worth $120,000, Andrew would pay Judy that sum out of the legacy, retaining the balance and the land. If, however, the block of land is worth $150,000, Andrew must pay the whole of the $130,000 to Judy, but no more. The compensation Judy will receive, in other words, is limited to the extent of the benefit received under the will by Andrew.189

1. 2.

3. 4. 5. 6.

7. 8.

9. 10. 11.

(1962) 107 CLR 604 at 617. See also Robertson v Broadbent (1883) 8 App Cas 812. See, for example, Re O’Connor [1948] Ch 628. If it is not practicable to purchase the property during the 12 months following death (the ‘executor’s year’), the beneficiary is entitled to a sum equal to the value at that time plus interest from that time until payment. McBride v Hudson (1962) 107 CLR 604. [1937] 1 All ER 602. Compare Re Webster [1937] 1 All ER 602 with Re Walton [1936] SASR 15. The distinction between a specific gift and a residuary gift may often be difficult to draw. See, for example, Estate of McGregor (1975) 11 SASR 424 and Certoma, ‘Particular Residue: True Residue or Specific Legacy’ (1981) 55 ALJ 193. [1997] 1 NZLR 38. Succession Act 2006 (NSW) s 31; Wills Act 1997 (Vic) s 35; Wills Act 2008 (Tas) s 45; Succession Act 1981 (Qld) s 33G; Wills Act 1970 (WA) s 26(1)(b); Wills Act (NT) s 30. In the other jurisdictions the principle is given statutory force only in respect to realty: Wills Act 1936 (SA) s 28; Wills Act 1968 (ACT) s 25. (1852) 5 DeG & Sm 343; 64 ER 1145. (1967) 116 CLR 344 at 348. See also the judgment of Young CJ in Johnston v Mclarn [2002] NSWSC 97 at [13]–[15], which uses the words ‘extinction’ and ‘annihilation’ of the subject matter.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

See, for example, Re Plowright [1971] VR 128. Re Stokell (1913) 9 Tas LR 7. (1852) 5 DeG & Sm 343; 64 ER 1145. [1907] 1 Ch 665. Ibid at 672. [1907] 1 Ch 665. (1887) 36 Ch D 205. See also Re Whelan [1961] VR 706. [1912] 1 Ch 29. (1962) 107 CLR 604. Jenkins v Jones (1866) LR 2 Eq 323 at 327–38. Basan v Brandon (1836) 8 Sim 171 at 175–6: 59 ER 68; Power v Power [2011] NSWSC 288. Re Dorman [1994] 1 WLR 282 at 288; Re Hartigan (unreported, SC(WA), Parker J, 9 December 1997). [1997] 1 Qd R 110. Compare the United Kingdom decision in Re Dorman [1994] 1 WLR 282, where, in similar circumstances, the court was able to hold that there had been a change in name and form only. (1866) LR 2 Eq 323. (1866) LR 2 Eq 323 at 329. [1997] 1 Qd R 110. [1997] 1 Qd R 110 at 115–16. Unreported, SC(WA), Parker J, 9 December 1997, BC9707385. Ibid at [10]. See also Johnston v Maclarn [2002] NSWSC 97 per Young CJ in Eq. (2006) 1 ASTLR 394; [2006] VSC 407. [1997] 1 Qd R 110. [2010] 1 Qd R 146. [1997] 1 Qd R 110. [2011] NSWSC 288. [1997] Qd R 110. (2011) 4 ASTLR 584; [2011] VSC 466. See also Re Richardson (decd) v Lee [2012] 2 Qd R 473; [2011] QSC 409 per Ann Lyons J. [1997] 1 Qd R 110. (2005) 64 NSWLR 671. [1997] 1 Qd R 110. His Honour held that under those statutory provisions, ademption had nevertheless occurred. [2005] EWHC 3479 (Ch). (1866) LR 2 Eq 323. [2005] EWHC 3479 (Ch) at [28]. [1997] 1 Qd R 110. [2011] VSC 466 at [32]–[33]. Ibid. [2010] 1 Qd R 146. [2011] VSC 466. [1907] 1 Ch 665 at 671.

52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66.

67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79.

80. 81.

82. 83. 84.

[2011] VSC 466 at [36]. (1866) LR 2 Eq 323. [2011] VSC 466 at [45]. (2012) 7 ASTLR 149; [2012] NSWCA 39; BC201201586. See the analysis by Browne, ‘Ademptions Exemptions Had Gone Too Far’ (2012) 50 LSJ 59. Young and Sackville JJA agreeing. His Honour’s analysis in Appendix B to the judgment. [1997] 1 Qd R 110. New South Wales Trustee and Guardian Act 2009 (NSW) s 83. RL v New South Wales Trustee and Guardian [2012] NSWCA 39 at [91]. [1997] 1 Qd 110. (1866) LR 2 Eq 323. Section 22. [2012] QSC 183. ‘Ademptions Exemptions Had Gone Too Far’ (2012) 50 LSJ 59. See also Collins, ‘How Should Queensland Courts Respond When a Specific Gift has been Adeemed by Attorneys Lawfully Exercising their Powers’ (2013) 20 James Cook University Law Review 61. [1997] 2 VR 595. [1952] Tas SR 9. See also Christensen v McKnight (unreported, SC(NSW), Hodgson J, 2 March 1995, BC9504314). [1952] Tas SR 9 at 12. [1997] 2 VR 595. [1997] 2 VR 595 at 599. (2011) 4 ASTLR 584; [2011] VSC 466 at [42]. [2010] 1 Qd R 146. See Dal Pont, Powers of Attorney, LexisNexis Butterworths, 2011, at [9.39]–[9.42] for further discussion. Re Morton [1963] VR 40. See also Re Tarca (1981) 29 SASR 152. Of course, this principle will only apply if the contract is one that entitles the purchaser to the equitable remedy of specific performance: Brown v Heffer (1967) 116 CLR 344. See, for example, Re Lewis’ Will Trusts [1937] Ch 118 and In Estate of Stanley [1965] SASR 159. Fairweather v Fairweather (1944) 69 CLR 121 at 129; Estate of Woithe (1972) 3 SASR 189; Re Beames (1979) 22 SASR 595. Lawes v Bennett (1785) 1 Cox Eq Cas 167; 29 ER 1111. But see Re Miller [1991] 1 Qd R 359, which makes it clear that the rule may be excluded by a contrary intention expressed in the will. Of course, there will be no ademption if the option is not exercised. Re Lewis [1964] VR 537. See also Wills Act 1997 (Vic) s 34; Succession Act 1981 (Qld) s 33E; Wills Act 1936 (SA) s 27; Wills Act 1970 (WA) s 26; Wills Act 2008 (Tas) s 44; Wills Act 1968 (ACT) s 24; Wills Act 2000 (NT) s 29. [1927] 1 Ch 364. See also Re Gibson (1866) LR 2 Eq 699. [1916] VLR 540.

85. 86.

87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97.

98. 99.

100.

101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113.

See the discussion in Hardingham, Neave and Ford, pp 207–9. Or, in all jurisdictions except South Australia and Western Australia, does not survive the testator for a period of 30 days: Succession Act 2006 (NSW) s 35; Succession Act 1981 (Qld) s 33B; Wills Act 1997 (Vic) s 39; Wills Act (NT) s 34; Wills Act 1968 (ACT) s 31C; Wills Act 2008 (Tas) s 49 (all are subject to a contrary intention in the will). Re Ladd [1932] 2 Ch 219. See, for example, Sibley v Cook (1747) 3 Atk 572; 26 ER 1130. [1904] 2 Ch 30. [1904] 2 Ch 30 at 33. [1948] Ch 232. (2004) 28 WAR 496. See also Barbetti v Attorney-General [2006] WASC 157 and Re David Wayne Swan (2014) 120 SASR 149. [1972] VR 168. See particularly the judgment of Newton J at 177. See also Estate of Morgan; The Salvation Army (NSW), Property Trusty v Morgan [2015] NSWSC 194. Dal Pont, Law of Charity, LexisNexis Butterworths, 2010, Chs 15 and 16. Wills Act 1936 (SA) s 36. Of course, Stan may benefit. He could, for example, be a beneficiary under Sam’s will or if Sam died intestate, he may share in the intestacy. Succession Act 2006 (NSW) s 41; Wills Act 1997 (Vic) s 45; Succession Act 1981 (Qld) s 33N; Wills Act 1970 (WA) s 27; Wills Act 1992 (Tas) s 41; Wills Act 1968 (ACT) s 31; Wills Act 2000 (NT) s 40. For further discussion of class gifts and the applicability of statutory anti-lapse avoidance rules, see Hardingham, Neave and Ford, pp 239–41. See also Succession Act 2006 (NSW) s 41. For the difference between joint tenancies and tenancies in common, the reader is referred to standard texts on property law. In particular see Tooher and Dwyer, Introduction to Property Law, 4th ed, LexisNexis, 2002, Ch 11. Disclaimer may be for other reasons. Mellows (at p 423) cites the Canadian decision of Re Moss (1977) 77 DLR (3rd ed) 314 where a local congregation of the Jehovah’s Witnesses disclaimed a gift left by will to it by a member whom they had excommunicated for chewing tobacco. [1930] 1 Ch 84. See particularly Crago, ‘Principles of Disclaimer of Gifts’ (1999) 18 UWAL Rev 65. Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575. Re Hodge [1940] Ch 260. Re Young [1913] 1 Ch 272; Tantau v MacFarlane [2010] NSWSC 224. Re Bisset [2016] QDR 211. Guthrie v Walrond (1883) 12 Ch D 573. Re Hawkins (1880) 13 Ch D 470. R v Skinner [1972] 1 NSWLR 307; Re Scott [1975] 1 WLR 1260. [2001] 3 All ER 552. For discussion of the rule, see Youdan, ‘Acquisition of Property by Killing’ (1973) 89 LQR 235 and Mackie, ‘Manslaughter and Succession’ (1988) 62 ALJ 616. (1985) 2 NSWLR 188. [1992] 1 VR 583.

114. (1987) 9 NSWLR 433. 115. (1994) 33 NSWLR 269. For detailed discussion of this case, see Mackie, ‘The Troja Case — Criminal Law, Succession and Law Reform’ (1999) 5 Canberra LR 142. 116. (1997) 97 A Crim R 103. 117. [1992] 1 VR 583. 118. [2015] 1 Qd R 601. 119. Ibid at [20]. 120. [2015] QSC 134. 121. (1994) 33 NSWLR 269. 122. Ibid at [25]. Her Honour had earlier stated the same view in Re Nicholson [2004] QSC 480. See also State of Queensland v Byers [2006] QSC 334. 123. Re Estate of Luxton [2006] SASC 371. 124. [2016] VSCA 28. 125. (1994) 33 NSWLR 269. 126. Ibid. 127. [2016] VSCA 28 at [62]–[66]. 128. (1940) 63 CLR 691. 129. (1994) 33 NSWLR 269. 130. [2016] VSCA 28 at [149]. 131. Ibid at [190]. 132. The Forfeiture Rule, Final Report No 6, 2004. 133. The Forfeiture Rule, Report, September 2014. 134. Re Houghton [1915] 2 Ch 193; Re Plaister (1934) 34 SR (NSW) 547. 135. Commonly referred to as the rule in Hollington v Hewthorn [1943] 1 KB 587. 136. Public Trustee v Fraser (1987) 9 NSWLR 433. Thus, the rule may be applied to a person who has been acquitted in criminal proceedings: Helton v Allen (1940) 63 CLR 691, and it is immaterial that criminal proceedings have never been brought. 137. Re Callaway [1956] Ch 559. See also Re Lentjes [1990] 3 NZLR 193. 138. Davies v Worthington [1978] WAR 144; Ekert v Mereider (1993) 32 NSWLR 729. 139. (1993) 33 NSWLR 154. 140. Re Keid [1980] Qd R 610 provides an example, but cf Re Lentjes [1990] 3 NZLR 193. For discussion see Mackie, ‘The Forfeiture Rule: The Destination of Property Interests on Homicide’ (1997) 2 Newc LR 230. 141. Public Trustee v Fraser (1987) 9 NSWLR 433. This principle is given statutory force in New South Wales (Succession Act 2006 (NSW) s 139(b)) and Tasmania (Intestacy Act 2010 (Tas) s 40(b)). Persons disqualified are deemed to have predeceased the intestate for the purpose of distribution. 142. Re Thorp and the Real Property Act 1900 [1962] NSWR 889; Rasmanis v Jurewitsch [1968] 2 NSWR 166; Re Stone [1989] 1 Qd R 351. Neubacher v Good [2003] NSWSC 379; Nay v Iskov [2012] NSWSC 598; Josifovski v Veleski [2013] NSWLR 1103. 143. Re Royse [1985] 1 Ch 22; Troja v Troja (1994) 35 NSWLR 182. 144. Section 6(2). Thus avoiding the potential raised by the drafting of the United Kingdom Act, that has resulted in some judges at least holding that the power given to modify the effects of the rule does not extend to complete relief from it; see, for example, Cross, Petitioner [1987] SLT 384. This

145. 146.

147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163.

164. 165. 166. 167. 168. 169. 170.

appears to be no longer the case: Dunbar v Plant [1997] 4 All ER 289 and Re K (decd) [1985] Ch 85, 100 (Vinelott J). Section 4. Section 7 provides that an application for a forfeiture modification order must be made within 12 months from the date of the death of the person who was killed unlawfully (if the forfeiture rule operates from the date of death), or within 12 months from the date on which the forfeiture rule operates (if the rule operates subsequently to the date of death), unless the court gives leave for a later application. Leave for a later application may be granted if, subsequently to the making of the original order, the offender is pardoned or the offender’s conviction is quashed or set aside in circumstances where there is no further right of appeal. Leave may also be granted in cases where the offender’s identity as the killer is not discovered until after the expiration of the relevant 12month period or in such other circumstances as the court considers just. Section 8. Note that under s 8(1)(c) the court has a general discretion to revoke or vary in other cases if it considers it just to give leave for such an application to be made. Commencing 28 October 2005. Section 11(1). Section 11(2) and (3). Section 3(3). Section 4. Section 3(5). The Australian Capital Territory legislation is formed in identical terms: s 2(1). [1991] Fam Law R 441. (1994) 33 NSWLR 269. [1997] 4 All ER 289. [1997] 4 All ER 289 at 311. Forfeiture Act 1982 (UK). [1997] 4 All ER 289 at 292–3. Re K (decd) [1985] Ch 85; Re Paterson (decd) [1986] SLT 121. Re H (decd) [1990] Fam Law R 441; Re S (decd) [1996] 1 WLR 235; Re Gilchrist (decd) [1990] SLT 494. For a most graphic example see Dunbar v Plant [1998] Ch 412 and cf Permanent Trustee Co Ltd v Freedom From Hunger Campaign (1991) 25 NSWLR 140. The above decisions are discussed in detail by Mackie, ‘The Troja Case: Criminal Law Succession and Law Reform’ (1995) 5 Canberra LR 142. Unreported, SC(NSW), Hodgson CJ, 14 November 1997. (1998) 100 A Crim R 565; [1998] NSWSC 218. [2002] NSWSC 628. See also Straede v Eastwood [2003] NSWSC 280; Gonzalez v Claridades [2003] NSWSC 508; Batey v Potts (2004) 61 NSWLR 274; Permanent Trustee Co Ltd v Gillett [2004] NSWSC 278. [2005] NSWSC 1188. See also Guler v NSW Trustee and Guardian [2012] NSWSC 1369; Hill v Hill (2013) II ASTLR 121. [2016] NSWSC 554. Ibid at [32].

171. Ibid at [66]. 172. The leading Australian authority on the doctrine of satisfaction is Royal North Shore Hospital v Crichton-Smith (1930) 60 CLR 798. See particularly the judgment of Dixon J. 173. Lambert v Waters [1954] St R Qd 212. 174. Re Manners [1949] Ch 613. 175. The doctrine was originally limited to portions given by fathers: Re Ashton [1897] 2 Ch 574. It may now be extended to mothers: Loades-Carter v Loades-Carter (1966) 110 Sol J 683; Brown v Brown (1993) 31 NSWLR 582 at 591 (Gleeson CJ); Nelson v Nelson (1994) 33 NSWLR 740; Re Cameron [1999] 2 All ER 924 at 939. 176. (1859) 45 ER 294 at 298. 177. See also Crago, ‘Equitable Ademption Within the Family’ (1987) 178 UWALR 272; Sarmas, ‘A Step in the Wrong Direction: the Emergence of Gender “Neutrality” in the Equitable Presumption of Advancement’ (1994) 19 MULR 758 and the discussion in Croucher and Vines at [13.21]–[13.27]. 178. (1875) LR 20 Eq 155 at 157–8. 179. Re Blundell [1906] 2 Ch 222. 180. See Russell v White (1895) 16 LR (NSW) Eq 158 for an illustration. 181. Grave v Earl of Salisbury (1784) 1 Bro CC 425; 28 ER 1218. 182. Russell v White (1895) 16 LR (NSW) Eq 158. 183. Re Furness [1901] 2 Ch 346. 184. Lord Chichester v Earl of Coventry (1867) LR 2 HL 71 at 87. For a case where the presumption was rebutted, see Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36. 185. [1973] 1 NSWLR 111. See also Re Cameron [1999] 2 All ER 924. 186. These rules are discussed in Hurst v Beach (1821) 5 Madd 351; 56 ER 929. 187. Codrington v Codrington (1875) LR 7 HL 854. 188. Of course, the beneficiary may disclaim the gift under the will and thereby retain his or her own property. 189. The principles are discussed in Re Edwards [1958] Ch 168; Re Mengel’s Will Trusts [1962] Ch 791; Re Gordon’s Will Trusts [1978] Ch 145. See also Crago, ‘Mistakes in Wills and Election in Equity’ (1990) 106 LQR 487.

[page 271]

Distribution on Intestacy

10

Definition of intestacy General 10.1 An intestacy may arise in one of two ways: first, where the deceased dies without leaving a valid will; second, where the deceased leaves a valid will, but all of the deceased estate is not effectively disposed of under the will. The law relating to intestacies is governed by the following legislation.1 With respect to the second cause of intestacy, there may be a total or partial intestacy. A total intestacy may arise where the deceased merely appoints an executor without directing how the estate is to be distributed. Alternatively, a total intestacy will arise when the deceased has left a will but all of the takers under the will have predeceased the testator. A partial intestacy arises where there is some part of the deceased estate that has not been disposed of under the will.2 Where there is an intestacy, statutory rules govern the distribution of the estate. Modern legislative provisions in Australia governing the distribution of property upon an intestacy may be traced to the Statute of Distributions 1670. Unfortunately, until recently, there had been no political imperative to enact uniform legislation across all Australian jurisdictions with respect to intestate succession. Although the modern legislation of the Australian states and territories may be traced to this common origin, the legislation of the differing jurisdictions reflected differing policy objectives. In the interests of

legislative simplicity, there is no reason for maintaining such a confusing array of laws. The need for reform in this area, with the object of implementing a uniform legislative scheme, is now being addressed. [page 272] In 1995, the Standing Committee of Attorneys-General established a National Committee on Uniform Succession Laws, which was to review existing state laws relating to succession and to propose model national uniform laws: see Chapter 1 above. As part of that project the Committee has issued an Issues Paper on Intestacy, prepared by the New South Wales Law Reform Commission,3 a Final Report and a draft Intestacy Bill.4 At the time of writing, only two jurisdictions (New South Wales and Tasmania) have implemented the recommendations,5 so it is still necessary to refer to the various existing legislation in all states and territories. As a final introductory comment, the importance of effective and efficient intestacy laws is undoubted. Substantial research has recently been carried out as to the extent of intestacy in Australia, the most thorough being reported in a joint paper by Tilse, Wilson, White, Rosenman and Feeney.6 It was found that 59 per cent of the adult population has a will. The authors point out that this is a high prevalence rate compared with the United States and England and Wales. They also point out that will-making is a strongly associated with age and accumulated wealth. Nevertheless, this indicates that approximately 30–40 per cent of the adult population may potentially die intestate, and so have their estate distributed according to the intestacy rules.

Entitlement on intestacy 10.2 Where there is an intestacy, the legislation in each state and territory determines who is to receive the assets of the estate. With careful drafting of

their will, a person may avoid, or at least minimise, the prospect of an intestacy arising with respect to his or her estate. In particular, a person should ensure that all of the estate will be disposed of under the will by considering the circumstances in which particular gifts may lapse and making appropriate provision by including a distribution of any residuary estate. However, once an intestacy arises, no term in the will can operate to vary the distribution of the estate in accordance with the statutory scheme.7 It should also be noted that the distribution of intestate estates is subject to the operation of the family provision legislation, discussed in Chapter 11. As a final introductory comment, the intestacy rules are predicated on the fact that a person is unable to participate in the distribution of an intestate estate unless he or she survives the intestate. The potential legal problems in this respect, and the meaning of [page 273] survivorship, are considered in detail in Chapter 16: Survivorship and see particularly 16.2–16.6. The legislation governing intestate succession creates several categories of recipients, ranked according to descending priority for participation in the distribution of the estate. These categories are, broadly speaking: (1) (2) (3) (4)

the surviving spouse and issue of the deceased; immediate family; next of kin; and the Crown.8

In addition to this categorisation of beneficiaries under the various intestacy schemes, there is also a differentiation of various classes of assets comprising the intestate estate. The estate is commonly divided into the following categories: (1) the personal or household chattels of the deceased; (2) the matrimonial home of the deceased; and

(3) the remainder of the estate.

This categorisation of assets will be particularly significant where there is a surviving spouse, as the spouse may have priority with respect to the first two classes of assets in all cases.

Entitlement of surviving spouses Definition of ‘spouse’ 10.3 For the purposes of the intestacy provisions, a person will generally retain the status of a spouse for the duration of the marriage, that is, until a decree nisi for the dissolution of the marriage has been made absolute. Thus, the surviving spouse generally retains his or her entitlement under the intestacy provisions notwithstanding any separation or commencement of divorce proceedings prior to the death of the intestate. All jurisdictions now recognise de facto relationships for the purpose of intestacy. The legislation varies in terminology, but generally recognition is given to ‘de facto’ spouses, ‘putative’ spouses, ‘partners’ or ‘domestic partners’.9 The legislation details the requirements that must be met before [page 274] such a relationship will in fact be recognised in law, and adds additional requirements, usually relating to the length of the relationship, or the birth of a child, before entitlement arises on intestacy. Where the intestate leaves a surviving legal and a de facto partner, the legislation generally determines the priority of the spouses to entitlement under the intestacy by tie-breaker provisions, although in South Australia, the spouses share the spousal portion equally.10 This is also the position in New South Wales and Tasmania, but upon certain statutory conditions, similar to those contained in the Queensland legislation. The Queensland legislation provides for three distinct

methods of division: by a distribution agreement; a court distribution order; and where there is surviving issue, equal distribution.11

General disposition to surviving spouse 10.4 Where a spouse survives the deceased, the extent of the estate to pass to the surviving spouse will depend upon whether there is also surviving issue of the deceased.

Surviving spouse with no issue of the intestate 10.5 Where there is no issue of the intestate, the legislation in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory provides that the surviving spouse is entitled to the entire estate.12 In Western Australia and the Northern Territory, a surviving spouse is only automatically entitled to the entire estate if there is not only no issue of the intestate, but if there is also no parent and no sibling (or their issue) as well.13 Where there is a surviving parent or sibling, the spouse is only entitled to the entire estate if its value is below a specified amount. In both jurisdictions, if the value of the estate exceeds the specified amount, the spouse takes a legacy equivalent to the threshold value and also one-half of the remaining estate.14

Surviving spouse and issue of the intestate 10.6 Where there is a surviving spouse and also surviving issue of the intestate, the legislation in all jurisdictions generally contemplates the division of the estate between the spouse and the issue in certain circumstances. However, in New South Wales and Tasmania this is only the case where the intestate leaves children from a previous relationship: if the [page 275]

issue is of the surviving spouse, then that spouse is entitled to the whole of the intestate estate. In all of the jurisdictions, the surviving spouse is entitled to a statutory legacy of a specified amount15 (in addition to any entitlement, in relevant jurisdictions, to personal or household chattels considered below).16 If the value of the estate (excluding ‘household chattels’) exceeds the threshold amount, the remaining estate is to be divided between the spouse and the issue according to the shares specified by the legislation. However, there is no uniformity in the legislation with respect to either the amount of the statutory legacy or the quantum of the portions to which the spouse and the issue are entitled. In New South Wales and Tasmania, the statutory legacy to which the spouse is entitled consists of a ‘CPI adjusted legacy’; that is $350,000 adjusted by inflation17 plus interest if not paid within one year of the intestate’s death. As well as the legacy, the surviving spouse is entitled to one half of any remainder of the intestate estate. The remaining half of any residue is to be divided between the intestate’s children. Similarly in South Australia, the statutory legacy is set at $100,000 to which the surviving spouse is solely entitled; anything exceeding that sum is to be shared equally by the surviving spouse and issue.18 And in Victoria, again the legacy is $100,000, the surviving spouse being also entitled to one-third of the balance of the estate.19 By contrast, in Queensland,20 Western Australia,21 the Australian Capital Territory,22 and the Northern Territory,23 the entitlement of the surviving spouse varies depending upon whether the issue consists of one child or more than one. Where there is one child of the intestate or the issue of one child of the intestate, the spouse is entitled to one-half of the remaining estate (after allowing the statutory threshold to the spouse). Where the issue comprises more than one child, the spouse is entitled to one-third of the remaining estate. Unfortunately, the policy of minimising hardship to surviving spouses underlying this statutory legacy has been subverted in some jurisdictions by a

failure to maintain the legacy at realistic levels. For example, in Western Australia, if the value of the estate exceeds $50,000 the legacy is just $50,000 and one-half of the remainder of the estate. In fact, apart from Western Australia, the legacy ranges from $100,000 in Victoria [page 276] and South Australia, $120,000 in the Northern Territory, $150,000 in Queensland, $200,000 in the Australian Capital Territory, $250,000 in Tasmania and $350,000 in New South Wales. It is suggested that the New South Wales provision is more realistic in achieving the purpose of the legislation. The legislation in most jurisdictions should also be amended to allow the value of the statutory legacy to be set by regulation, as is the case in New South Wales and the Northern Territory. In addition to the statutory legacy, all of the Australian jurisdictions provide that the surviving spouse is entitled to at least some of the personal possessions of the intestate.24 Most jurisdictions include ‘personal effects’ or ‘personal chattels’, the meaning of which is extensively defined in some. Typical is the Australian Capital Territory provision, which provides as follows: ‘Personal chattels’, in relation to an intestate, means: (a) the articles of household or personal use or adornment, plated articles, china, glassware, pictures, prints, linen, jewellery, clothing, books, musical instruments or apparatus, scientific instruments or apparatus, wines, liquors, consumable stores and domestic animals of the intestate; and (b) the motor cars and accessories of the intestate; but does not include: (c) any chattels of the intestate used exclusively for business purposes; or (d) money and securities for money of the intestate.25

In contrast are the New South Wales and Tasmania provisions:26 ‘Personal effects’ of an intestate means the intestate’s tangible personal property except the following: (a) property used exclusively for business purposes;

(b) banknotes or coins (unless forming a collection made in pursuit of a hobby or for some other non-commercial purpose); (c) property held as a pledge or other form of security; (d) property (such as gold bullion or uncut diamonds): (i) in which the intestate has invested as hedge against inflation or adverse currency movements; and (ii) which is not an object of household, or personal, use, decoration or adornment; (e) an interest in land (whether freehold or leasehold).

The policy of this definition is to minimise the disturbance to the lifestyle of the surviving spouse caused by the death of the intestate, while seeking to balance the interests of those also taking under an intestacy. But it introduces a considerable degree of complexity into the administration of an intestate estate by requiring the precise categorisation of the deceased’s assets. In all jurisdictions, business assets, money and securities for money are either specifically or implicitly excluded. [page 277]

Election by surviving spouse with respect to matrimonial home 10.7 In all jurisdictions a surviving spouse may elect to have the administrator hold the interest of the intestate in the matrimonial home on trust for the benefit of the surviving spouse.27 The purpose of these provisions is much the same as the provisions in relation to household and personal chattels, discussed immediately above in 10.6, that is, to minimise the disruption caused by the death of the intestate on the spouse or partner and provide continuity of lifestyle. Of course, it only exists in limited circumstances as in many cases the surviving spouse or partner will be a joint tenant with the intestate and therefore, on the death of the intestate, will be automatically entitled to the shared home by the right of survivorship. In some cases also, the survivor will already own the shared home. However, the provision is useful in circumstances where the intestate

either owned the shared home outright or in part as a tenancy in common (as opposed to a joint tenancy).

Entitlement of issue General 10.8 It was noted above that the entitlement of the surviving issue of the intestate depends upon whether there is a surviving spouse and, also, upon whether the surviving issue comprises more than one child of the intestate. Where there is no surviving spouse, the legislation in all jurisdictions provides that the surviving issue are entitled to the entire estate.28

Definition of ‘issue’ 10.9 ‘Issue’ means the nearest lineal descendant, no matter how remote.29 Nearer issue exclude more distant issue.30 The surviving issue of a child who predeceased the intestate take by representation; that is, they stand in the shoes of the predeceased child. Thus, in all jurisdictions the issue of the intestate may be not only the surviving children of the intestate, but also the surviving issue of any child of the intestate who predeceased the intestate. Legislation applicable in all Australian jurisdictions provides that an adoption order makes the adoptive parents the legal parents of the child and the adopted child the legal child of the adoptive parents, to the exclusion of any relationship between the adopted child and its natural [page 278] parents.31 Thus, such a child cannot take on intestacy from the estate of his or her biological parents. Illegitimate children will also comprise ‘issue’ for the purpose of the

intestacy provisions. At common law, an illegitimate child was filius nullius and consequently had no entitlement to succeed to property under an intestacy. The reverse is now the case under state legislation in all jurisdictions. Legislation enacted in all state and territory jurisdictions overrides the common law distinction between legitimate and illegitimate children, at least for intestacy purposes.32 Thus, a child born out of wedlock is, for the purpose of taking on the distribution of the intestate estate, treated in the same way as a child born within wedlock. A child born through reproductive technology, generally known as artificial conception, is usually treated as the natural child of the parents and, under the legislation, the child’s mother and her husband are presumed to be the parents of the child. A child en ventre sa mère is also included for the purposes of intestacy, that is, a reference to a child or issue living at the death of the intestate includes children en ventre sa mère at death and subsequently born. In some jurisdictions time limits for the subsequent birth are imposed.33 With respect to embryos, the decision of Slicer J in In the Matter of the Estate of K34 suggests that embryos held as part of an in vitro fertilisation birth program will not constitute issue of the deceased. However, Slicer J also observed that a child could constitute issue of the deceased if an embryo produced with the egg or sperm of the deceased was transferred to a woman and a child was born as a result. That decision no longer has any application in Tasmania, however, as the Intestacy Act 2010 (Tas), in s 28, now provides that a child born by means of assisted reproductive technologies cannot take for the purpose of intestate succession unless the child is en ventre sa mère at the death of the intestate.

Entitlement of issue 10.10 Where the issue include the grandchildren of the intestate who are taking by representation of a deceased child of the intestate, the legislation generally provides that the grandchildren of the intestate are only entitled to a

per stirpes share of the estate. This means that the issue of a deceased [page 279] child of the intestate must share equally between themselves the share of the estate that would have been distributed to their deceased parent under the intestacy. The grandchildren therefore do not share equally with the surviving children of the intestate. To take a simple example, assume that the intestate had two children (C1 and C2). C2 had two children (G1 and G2) before predeceasing the intestate. In the circumstances where the issue of the intestate were to take as on an intestacy, C1 would receive a half of the issue’s share while G1 and G2 would each receive one-quarter of the issue’s share. C1, G1 and G2 would not each take a one-third share. A per stirpal division is therefore to be distinguished from a per capita (equal share per head) division. In South Australia,35 the legislation provides for a per capita division of the estate where there are only surviving issue of the children of the intestate. Thus, all grandchildren would take equal shares in the estate in that jurisdiction. This modification of the stirpital division of property between grandchildren of a deceased was implemented to overcome the perceived inequity of grandchildren taking different proportions of the estate according to how many siblings they had. For example, if there were just three grandchildren of the deceased, and no other surviving issue, G1 and G2 being issue of C2 while G3 being the issue of C1, G1 and G2 would take a quarter share of the estate while G3 would take a half share.36

Others entitled Parents: surviving parent(s) but no surviving spouse or issue

10.11 Where there is no surviving spouse or issue, the surviving parents of the intestate generally are entitled to the entire estate.37 In Western Australia, there is the superadded requirement that there be no surviving sibling (or issue of a deceased sibling) before the parents are entitled to the estate.38

Surviving parent(s) and surviving spouse 10.12 Where there is a surviving spouse and a surviving parent, it has already been noted that the legislation in Queensland, Western Australia and the Northern Territory requires the division of the estate between them in certain circumstances: see 10.4 above. [page 280]

Next of kin 10.13 Where there is no surviving spouse, issue or parents, the legislation generally provides that the estate is to be distributed to the next of kin.39 In most jurisdictions, ‘next of kin’ is statutorily restricted to prescribed classes of relatives.40 However, in Victoria the next of kin are defined according to the common law, although there is some statutory modification to the common law definition.41 Generally, the common law classified relatives into categories of the first degree, the second degree and so forth. A relative of the first degree is a person one step away from the person in question, while a relative of the second degree is two steps away. These steps are calculated according to generations when lineal descendants are concerned, or by adding the steps up to the common ancestor to the steps down to the particular relative in the case of collateral relatives.

The Crown 10.14 In the absence of any relative who may take under the relevant legislation, the legislation in all jurisdictions provides that the estate will pass

to the Crown generally as bona vacantia.42 However, in most jurisdictions there is a discretion in the Crown to provide for dependants falling outside the classes of relatives recognised for the purposes of the intestacy provisions.43

Doctrine of hotchpot 10.15 In Victoria, South Australia, the Australian Capital Territory and the Northern Territory, the doctrine of hotchpot remains operative,44 while it has been excluded in the remaining jurisdictions. This doctrine assumes that a deceased will wish to provide similar benefits to each of his or her family. Thus, where certain classes of benefits have been conferred upon one member of the intestate’s family during the lifetime of the intestate and also under the terms of any will left by the deceased, the beneficiary may have to account for that benefit when the estate is being distributed. Of course, it is impossible to account for all benefits conferred by a person upon their family, and so for the sake of administrative simplicity the hotchpot provisions are restricted to [page 281] substantial benefits conferred. The key matters to be resolved in applying the doctrine of hotchpot are: (1) identification of what benefits must be brought into account; (2) whether all beneficiaries under the intestacy are required to account, or only particular categories of beneficiaries; (3) how any inter vivos or testamentary benefits conferred upon a relevant person are to be valued; (4) how the benefit is brought into account; and (5) whether the operation of the doctrine of hotchpot is subject to a contrary intention of the deceased.

The legislation of Victoria recalls the terminology of the hotchpot doctrine in s 5 of the Statute of Distributions 1670. For example, s 52(1)(f)(i) of the

Victorian legislation provides: (i)

Where a child has any property real or personal or any estate or interest therein by settlement of the intestate or was advanced by the intestate in his or her lifetime that child or his or her representative shall bring such property estate interest or advance into account in estimating the share (if any) to be taken by him, her or them in the distribution; …

The terms of this provision are potentially very broad, as there are no express threshold requirements as to the value of the benefit conferred by the intestate or the time at which it was conferred. Furthermore, the inclusion of any ‘settlement’ potentially applies to any trust created by the intestate under which successive interests were created in the trust property, irrespective of the value of the settled property. As at the time of writing, there has not been any case law specifically considering the scope of the provision with respect to settlements. However, it may be particularly onerous upon a child of the intestate to require even small settlements to be brought into account, particularly when other children need account for inter vivos transfers that comprise ‘advancements’. The meaning of an ‘advance’ was considered in Taylor v Taylor45 by Jessel MR (at 157–8): I have always understood that an advancement by way of portion is something given by the parent to establish the child in life, or to make what is called a provision for him — not a mere casual payment. You may make the provision by way of marriage portion on the marriage of the child. You may make it on putting him into a profession or business in a variety of ways: you may pay for a commission, you may buy him the goodwill of a business and give him stock-intrade; all these things I understand to be portions or provisions. Again, if in the absence of evidence you find a father giving a large sum to a child in one payment, there is a presumption that that is intended to start him in life or make a provision for him.

It is therefore necessary to distinguish between advancements and the conferral of benefits expected of parents in the ordinary course, according to the subjective test of the purpose for which a particular benefit was [page 282]

given. This test has engendered much case law revolving around where the line ought be drawn in particular circumstances. Notwithstanding the potential breadth of s 52(1)(f)(i), it should be noted that it is restricted to benefits conferred upon a child of the deceased by inter vivos grant.46 With respect to the operation of the doctrine of hotchpot in Victoria, it seems clear that it is restricted to children of the intestate. However, it is not clear from the legislation how any benefit conferred upon a child is to be valued, or whether the legislative provision is subject to the contrary intention of the deceased. The legislation in South Australia is similar to that of the Australian Capital Territory. It recognises the merit of the hotchpot doctrine but seeks to modify the complexity and potential inequity of the legislation applicable in Victoria. The South Australian provision states: (1) Where — (a) an intestate has within the period of five years immediately before his death made any gift to, or settlement for the benefit of, a person (other than a spouse of the intestate) who is, or would if he were to survive the intestate become, entitled to a part of the intestate estate; or (b) a person who dies partially intestate leaves a will containing a gift in favour of a person (including a spouse of the intestate) who is entitled to part of the intestate estate, the property given or settled shall be taken to have been given or settled in or towards the satisfaction of the share to which that person is entitled in the intestate estate, or to which he would become entitled if he were to survive the intestate (as the case may be) unless — (c) the contrary intention was expressed, or appears from the circumstances of the case; or (d) the value of the property given or settled does not exceed one thousand dollars. (2) For the purposes of subsection (1) of this section, the value of property given or settled by an intestate in his lifetime shall be determined as the date of the gift or settlement.47

It may be seen that the subjective requirement of an ‘advancement’ is replaced with the requirement that there be a gift. This simultaneously simplifies the application of the hotchpot doctrine while extending the potential scope of the provision, as the class of gifts is broader than the class of ‘advances’. The restriction to gifts made within the period of five years

immediately prior to the death of the intestate and the minimum value threshold of $100048 are concessions to the administrative workability of the hotchpot doctrine. However, the $1000 threshold is in [page 283] danger of being too low to achieve this objective. The timing threshold restricts the operation of the hotchpot doctrine considerably, perhaps at the cost of maintaining complete equality between the persons in the relevant class of takers under the intestacy. Further, it must be observed that the provision applies not only to the children of the intestate, but to all takers under the intestacy such that there must be an accounting between all members of the class of relatives benefiting under the intestacy. The legislation in the Northern Territory incorporates elements of both the Victorian and the South Australian provisions, and so will not be considered further. As a concluding comment, although designed to achieve on equitable principles equality between beneficiaries supported by an implied intention on the part of the intestate, there is an underlying assumption that the testator intended to treat all children equally, which is often not the case. Moreover, where there is partial intestacy, hotchpot may defeat the deceased’s intentions in that it may be assumed that people who make a will have taken into account any previous inter vivos benefits. Further, the existence of modern day family provision legislation may be used to equalise benefits in deserving cases. As a consequence, there have been calls to abolish the doctrine in the remaining jurisdictions.49

Indigenous persons’ estates General

10.16 As Vines has pointed out, most Aboriginal people in Australia die intestate, but the statutory regimes for intestacy, based as they are on a nonAboriginal view of family and kinship, create serious discord with Aboriginal cultural expectations.50 This has received some judicial attention,51 and also a recommendation by the National Committee for Uniform Succession Laws.52 Acting on this, the New South Wales and Tasmanian Parliaments have recently enacted legislation specific to Indigenous estates,53 which are modelled on an earlier Northern Territory provision.54

Dedicated intestacy rules: New South Wales, Northern Territory and Tasmania 10.17 In New South Wales, the Northern Territory and Tasmania, the legislation basically provides that the personal representative of an [page 284] Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the court for an order for the distribution of the intestate estate referred to as a ‘distribution order’.55 Importantly, if issued, this order operates, subject to its terms, to the exclusion of all other statutory provisions governing the distribution of the estate.56 A scheme of distribution of the estate in accordance with these laws, customs, traditions and practices must accompany the application, and the personal representative is prevented from distributing (or continuing to distribute) property comprised in the estate until either the application has been determined or the court authorises distribution.57 The court may, on an application, order that the intestate estate (or part of it) be distributed in accordance with its order, and, in formulating that order,

the court is compelled to pay regard to the scheme of distribution submitted as well as the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.58 There is also an overriding statutory requirement that an order may not be made unless the court is satisfied that its terms are, in all the circumstances, just.59

Queensland and Western Australia 10.18 Both Queensland and Western Australia have legislation (although not as extensive as that in New South Wales, the Northern Territory and Tasmania) dealing with Indigenous intestate estates. First, in Queensland, the legislation60 provides that where an Aboriginal or Torres Strait Islander dies without a will, and it is impracticable to ascertain the person(s) entitled to succeed to any part of his or her estate, the chief executive authority is vested with the power to determine the persons entitled to succeed, and what portions. The limited nature of that provision is exemplified by the decision of the Queensland Court of Appeal in Eatles v Gundy61 where an attempt by the trial judge to give an extended meaning (according to Aboriginal tradition) of a child, was overturned by the Court of Appeal. In Western Australia, the estate of a deceased person of Aboriginal descent who dies intestate vests in the Public Trustee, upon trust to pay any debts of the deceased and to distribute the balance among the person entitled according to the laws relating to administration of intestate estates. If no such person can be ascertained, the distribution is among the persons prescribed by [page 285] legislation, which is in line with Aboriginal customary law as is applied to the deceased at the time of death.62

Patterns of distribution: jurisdiction by

jurisdiction General 10.19 It may be helpful to deal with the patterns of distribution of the intestate’s estate on a jurisdiction to jurisdiction basis, and this is attempted below on a summary basis. This, of course, is subject to the more detailed discussion above and, as a summary, there are no detailed references to the legislation.63

Australian Capital Territory 10.20

The position in the Australian Capital Territory is as follows:

(1) If the intestate is survived by a partner, then the partner is entitled to the whole of the intestate estate if the value is more than $200,000 and there are no issue. If there are issue, the partner is entitled to $200,000, and the issue are entitled to what remains. (2) If there is no partner, all of the estate is divided equally between surviving children. (3) If there are no issue, then the parents are entitled to the estate. If there are no parents, then the next of kin are entitled. (4) If there are both a spouse or civil partner and an eligible partner, the eligibility depends on the duration of relationship between the eligible partner and the intestate. If the relationship is of less than five years, the estate passes equally between the eligible partner and the spouse. If the relationship is of more than five years, the eligible partner is exclusively entitled to the estate. (5) If none of the above exist, then the estate passes to the Crown.

New South Wales and Tasmania 10.21

The position in New South Wales and Tasmania is as follows:

(1) If there is one surviving spouse, but no issue, the spouse is entitled to the whole of the intestate estate. (2) If there is a surviving spouse, and issue which are also issue of the spouse, the spouse is still fully entitled. [page 286] (3) If there is a surviving spouse, and surviving issue from a previous relationship, the spouse is entitled to the intestate’s personal effects, a statutory legacy and one half of any remainder of the estate. ‘Statutory legacy’ is CPI adjusted, and is currently $350,000. Surviving issue (as

(4)

(5) (6)

(7)

defined) are entitled to the remainder of the estate. If there are multiple surviving spouses, and the intestate leaves no issue, or leaves issue by one or more of those spouses, then the spouse is entitled to the whole of the intestate estate in accordance with a written agreement, a ‘distribution agreement’, a court order or a ‘distribution order’) or in equal shares. If there are issue other than issue of the surviving spouse, the spouses share the statutory legacy and one half of the remainder. If there is no surviving spouse, but issue, the children take the entire estate, in equal shares. If there is no surviving spouse or children, the parents are entitled to the whole of the estate. If there are none of the above, brothers and sisters are entitled. If there are no brothers and sisters, grandparents are entitled. If there are none of the above, uncles and aunts are entitled. If there are none of the above, the estate passes to the state as bona vacantia and there are provisions for waiver of the state’s rights in certain situations.

Northern Territory 10.22

The position in the Northern Territory is as follows:

(1) If the intestate is survived by a spouse (but not by any de facto partner, issue, brother or sister), the spouse takes the entire estate. (2) If the intestate is survived by a de facto partner (but not by a spouse, issue, brother or sister), the de facto partner takes the entire estate. (3) If the intestate is survived by a spouse and issue, the spouse takes the entire estate if the value does not exceed $120,000. If it does, the spouse is entitled to one-third of the balance (or one half if there is only one child). The issue share the remainder. (4) If the intestate is survived by a de facto partner and issue but no spouse, the spouse takes the entire estate if the value does not exceed $120,000. If it does, the spouse is entitled to onethird of the balance (or one half if there is only one child). The issue share the remainder. (5) If the intestate is survived by a spouse, a parent, brother or sisters, but no issue, the spouse takes the entire estate if the value does not exceed $500,000 plus one half of the remainder. The parent takes the remainder, but if the parents predeceased the intestate, then the siblings take the remainder. [page 287] (6) If the intestate is survived by a spouse and a de facto partner, the de facto takes the estate if that relationship has lasted for a continuous period of at least two years. (7) If the intestate is not survived by a spouse or de facto partner, then the estate goes to the parents, and if no parents, then to the next of kin. If none of the above exist, then the estate passes bona vacantia to the Crown, but there is a waiver provision.

Queensland

10.23

The position in Queensland is as follows:

(1) If the intestate is survived by a spouse but no issue, then the spouse is solely entitled. (2) If the intestate is survived by a spouse and a de facto partner, but no issue, the division of the estate is according to either a ‘distribution agreement’ or a ‘distribution order’, otherwise in equal shares. (3) If there is a sole surviving spouse, and issue, the sole surviving spouse is entitled to $150,000, and one third of the remainder (unless there is only one surviving child, in which case half). The issue are entitled to the rest of the estate. (4) If there is a surviving spouse and a de facto partner and issue, the $150,000 is shared equally (subject to a ‘distribution agreement’ or ‘distribution order’). The issue are entitled to the rest, taking in equal shares. (5) If there are none of the above, then the parents are entitled to the estate and if there are no parents, then the next of kin. If there are none of the above, the estate passes to the Crown as bona vacantia, but there is a waiver provision.

South Australia 10.24

The position in South Australia is as follows:

(1) If the intestate is survived by a spouse or domestic partner, but no issue, then the spouse or domestic partner is entitled to the whole estate. (2) If the intestate is survived by a spouse or domestic partner and issue, the spouse or domestic partner is entitled to the whole estate if the value does not exceed $100,000. If the value exceeds that sum, the spouse or domestic partner takes one half of the balance and the issue take the balance. The issue take in equal shares. (3) If the intestate is survived by a spouse and domestic partner, each of them share the estate equally. (4) If there is no spouse or domestic partner, but there is issue, the issue take in equal shares. [page 288] (5) If there is no spouse, domestic partner or issue, then ‘relatives’ take the estate in order: parents (first degree), siblings (second degree) grandparents (third degree) aunts and uncles (fourth degree). (6) If there are no relatives, then the estate passes bona vacantia to the Crown.

Victoria 10.25

The position in Victoria is as follows:

(1) If the intestate is survived by a partner (spouse or registered or caring domestic partner) and

(2)

(3)

(4) (5) (6)

no issue, the partner is solely entitled to the estate. If a partner and issue survive the intestate, the partner is entitled to the whole estate if the value is no more than $100,000. If it exceeds that amount, then the partner is entitled to $100,000 and one third of the balance. The issue are entitled to the rest. If there is both a spouse (including a registered domestic or caring partner) and an unregistered domestic partner, the latter is entitled to take on a sliding scale, depending on the length of the relationship (for example, if it lasted for six years, the partner takes to the exclusion of the spouse or registered domestic or caring partner). If there is no partner, the issue are entitled in equal shares. If there is no issue, then the estate passes (in order) to the parents and next of kin. If there is none of the above, then the estate passes to the Crown bona vacantia, but there are discretionary powers in the Crown in respect to this.

Western Australia 10.26

The position in Western Australia is as follows:

(1) If the intestate leaves a spouse, but no issue, but one or more parent, sibling or a child of a sibling, the spouse takes the entire estate if the net value does not exceed $75,000. If it does exceed that amount, the spouse is entitled to $75,000 plus one-half of the residue. The parents take the other half if the value does not exceed $6000. If it does exceed that amount, the parents and siblings share it. (2) In scenario (1) above, but if there are no parents, the siblings again share. (3) If the intestate dies leaving a spouse, but no issue, parent, niece or nephews, the spouse takes the whole estate. (4) If there is no surviving spouse, the issue take the estate. If there is no spouse or issue then entitlement passes to the parents (subject to a monetary limit). If there are no surviving parents, then siblings, then grandparents, then uncles and aunts/cousins take the estate. (5) If none of the above, then escheat to the Crown (but there is statutory discretion as to distribution). [page 289] (6) If the intestate leaves a de facto partner (but no husband or wife) and the relationship is of two years or more, then the de facto partner is entitled to the intestate’s property to which a spouse would have been entitled. (7) If the intestate leaves a spouse, and a de facto partner, they share equally if the de facto relationship is of at least two years duration, but if it is of more than five years duration, the de facto partner takes if he or she was a spouse, to the exclusion of the spouse.

1.

2.

3. 4. 5.

6. 7. 8. 9.

10.

Administration and Probate Act 1929 (ACT) Pt 3A; Succession Act 2006 (NSW) Ch 4 (before 1 March 2010, the Wills, Probate and Administration Act 1898 (NSW) Pt 2 Div 2A); Administration and Probate Act 1969 (NT) Pt III Divs 4, 4A, 5; Succession Act 1981 (Qld) Pt 3; Administration and Probate Act 1919 (SA) Pt 3A; Intestacy Act 2010 (Tas) (before 1 January 2011, Administration and Probate Act 1935 (Tas) Pt V); Administration and Probate Act 1958 (Vic) Pt 1 Div 6; Administration Act 1903 (WA) ss 12A–16. The jurisdictional abbreviations to legislation in this chapter are to the aforesaid Acts. Probate and Administration Act 1898 (NSW) s 44; Administration and Probate Act 1958 (Vic) s 5(1); Administration and Probate Act 1919 (SA) s 45; Succession Act 1981 (Qld) s 5(1); Administration and Probate Act 1935 (Tas) s 3; Administration and Probate Act 1929 (ACT) s 49D; Administration and Probate Act 1969 (NT) s 61(1). See also Re Estate of Tzaczuk; Dobryden v Wagner (2004) 90 SASR 515 for the meaning of partial intestacy. New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Issues Paper 26, 2005. National Committee for Uniform Succession Laws, Uniform Succession Laws: Intestacy, New South Wales Law Reform Commission, Report 116, April 2007. Note, however, that the South Australian Law Reform Institute has recently released and Issues Paper 7: Cutting the Cake: South Australian Rules of Intestacy, December 2015 which offers a comprehensive overview of the existing intestacy laws in that jurisdiction together with substantial possibilities for reform. This follows from a similar report from the Victorian Law Reform Commission similarly recommending substantive changes to succession laws in that jurisdiction: Succession Laws: Report, August 2013, Ch 5. Tilse, Wilson, White and Rosenman, ‘Will-making Prevalence and Patterns in Australia: Keeping It in the Family’ (2015) 50(3) Australian Journal of Social Issues 319. Re Snider (1974) 46 DLR (3d) 161 (Ontario). See, generally, Burns, ‘Changing Patterns of Total Intestacy Distribution between Spouses and Children in Australia and England’ (2013) University of New South Wales Law Journal 67. New South Wales: Succession Act 2006 (NSW) ss 104–111; Relationships Register Act 2010 (NSW); Interpretation Act 1987 (NSW) s 21C. Victoria: Administration and Probate Act 1958 (Vic) ss 3(1), 51; Relationships Act 2008 (Vic). Queensland: Succession Act 1981 (Qld) ss 5AA(1), 35(1) and Sch 2; Acts Interpretation Act 1954 (Qld) s 32DA. South Australia: Administration and Probate Act 1919 (SA) s 4; Family Relationships Act 1975 (SA) s 11. Western Australia: Administration Act 1903 (WA) ss 12A–16; Interpretation Act 1984 (WA) s 13A. Tasmania: Intestacy Act 2010 (Tas) ss 6, 12; Relationships Act 2003 (Tas) s 4. Australian Capital Territory: Administration and Probate Act 1929 (ACT) s 44; Civil Partnerships Act 2008 (ACT) s 6; Legislation Act 2001 (ACT) s 169. Northern Territory: Administration and Probate Act 1969 (NT) s 66(1); De Facto Relationships Act 1991 (NT) s 3(1); Interpretation Act 1978 (NT) s 19A(1). Despite the legislative initiative, it is also productive of constant litigation as to the exact parameters: see, for example, Peipi v Peipi (2013) 12 ASTLR 268; Spencer v Burton [2015] QCA 104: Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. See also Dal Pont and Mackie at [9.79]–[9.83]. NSW: ss 122–124; Vic: s 51A(1); Tas: s 26; WA: s 15(3); ACT: s 45A(1)(b); NT: Sch 6 Pt 3; SA: s

11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

32.

33.

34. 35.

72H(2). Qld: s 36(1). NSW: ss 111, 112; Vic: s 51(1); Qld: s 35, Sch 2; SA: s 72G(1)(a); Tas: ss 12, 13; ACT: s 49(1); NT: Sch 6 Pt I It 1. WA: s 14(1) It 4; NT: s 66, Sch 6 Pt I It 1. WA: s 14(1) It 4; NT: s 70. Succession Act 2006 (NSW) s 113; Administration and Probate Act 1958 (Vic) s 51(2); Administration and Probate Act 1919 (SA) s 72G(1)(b); Administration Act 1903 (WA) s 14(1); Succession Act 1981 (Qld) Sch 2 Pt 1; Intestacy Act 2010 (Tas) s 14; Administration and Probate Act 1929 (ACT) s 49, Sixth Sch; Administration and Probate Act (NT) s 66, Sch 6. NSW: s 113; Vic: s 51(3); WA: s 14(1) It 2 para(b); Tas: s 14; ACT: Sch 6 Pt I It 2 para 2(b). NSW: s 113; Tas: s 14. SA: s 72G. Vic: s 51(2). Qld: Sch 2 Pt 4. WA: s 14(1) It 2 as modified by s 14(3). ACT: s 3D. NT: Sch 6 Pt 1. NSW: s 101; Vic: s 51(2); Qld: Sch 2 Pt I; SA: s 72H(1); WA: s 14(1) It 1; ACT: s 49A; NT: s 67. ACT: s 44. NSW: s 101; Tas: s 4. NSW: ss 114–121; Vic: s 37A; SA: s 72L(1); Qld: s 34B, Div 3; WA: s 14(6), Sch 4; ACT: ss 49F– 49N; NT: ss 72–79; Tas: ss 16–20. NSW: s 27(1); Vic: s 52(1)(f); SA: s 72G(1)(c); Qld: s 35, Sch 2 Pt II It 1; WA: s 14(1) It 5; Tas: s 28(1); ACT: s 49, Sch 6 Pt II It 1; NT: s 66, Sixth Sch Pt II It 1. Re Ross (1871) LR 13 Eq 286 at 293. Ralph v Carrick (1879) 11 Ch D 873 at 884. Note also that step-children are not issue and have no claim on intestacy. Adoption Act 2000 (NSW) s 95; Adoption Act 1984 (Vic) s 53; Adoption Act 2009 (Qld) ss 214– 218; Adoption Act 1988 (SA) s 9; Adoption Act 1994 (WA) s 75; Adoption Act 1988 (Tas) s 50; Adoption Act 1993 (ACT) s 43; Adoption of Children Act 1994 (NT) s 45. Status of Children Act 1996 (NSW) s 5; Status of Children Act 1974 (Vic) s 3; Status of Children Act 1978 (Qld) s 6; Family Relationships Act 1975 (SA) s 6; Administration Act 1903 (WA) s 12A; Status of Children Act 1974 (Tas) s 3; Parentage Act 2004 (ACT) s 38(2); Status of Children Act 1978 (NT) s 4. Status of Children Act 1996 (NSW) ss 9(2), 14; Status of Children Act 1974 (Vic) ss 5, 10, 10A, 10D, 10E; Status of Children Act 1978 (Qld) ss 14A, 15, 18(2); Family Relationships Act 1975 (SA) ss 8, 10A, 10C, 10D; Artificial Conception Act 1985 (WA) ss 3–6; Status of Children Act 1974 (Tas) Pt 3 and s 5(2); Parentage Act 2004 (ACT) ss 7(2), 11; Status of Children Act 1978 (NT) s 4(a), Pt 3. (1996) 5 Tas R 365. For discussion see Chalmers, ‘Inheritance Rights of Embryos’ (1996) 15 Uni of Tas LR 131 and Atherton, ‘En Ventre Sa Frigidaire’ (1999) 19 Legal Studies 139 at 153–60. SA: s 72J(d).

36.

37. 38. 39. 40. 41. 42. 43.

44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

61. 62.

For further discussion of this point see Queensland Law Reform Commission Report on the Law Relating to Succession, Queensland Law Reform Commission Report No 22, 1978, p 23. Queensland had adopted this model in earlier legislation but changed to a full per stripes distribution in 1998. NSW: s 128(1); Vic: s 52(1)(b), (e), (ea); Qld: s 35, Sch 2 Pt II It 2; SA: s 72J(a); Tas: s 29(1); ACT: s 49, Sch 6; NT: s 66, Sch 6. WA: s 14 It 7. NSW: ss 125–129; Vic: s 52(1)(f); Qld: ss 35, 37; SA: ss 72B, 72G, 72H; WA: ss 28–31; Tas: s 30; ACT: s 49(5); NT: ss 66(5), 69. NSW: ss 125–129; Qld: s 35; SA: s 72B(1) definition of ‘relative’; WA: s 14(1) Its 8–10; ACT: s 49(5); NT: s 66(5). Vic: s 52(1)(f). NSW: s 136; Vic: s 55; Qld: s 35, Sch 2 Pt II It 4; SA: s 72G(1)(e); WA: s 14(1) It 11; Tas: s 37; ACT: s 49, Sch 6 Pt II It 4; NT: s 66, Sch 6 Pt 2 It 4. NSW: s 137(2); Escheat (Procedure) Act 1940 (WA) s 9; Financial Management Act 1958 (Vic) s 58(3); Tas: s 38(1); SA: Law of Property Act 1936 (SA) s 115; NT: Law of Property Act 2000 (NT) s 20(3); Qld: Property Law Act 1974 (Qld) s 20(5). Vic: s 52(1)(f)(i); SA: s 72K; ACT: s 49BA; NT: s 68(3), (4). (1875) LR 20 Eq 155. Testamentary benefits are accounted for under s 53 (Vic). SA: s 72K. In the Australian Capital Territory, the threshold is $10,000. National Committee for Uniform Succession Laws, NSWLR Report 116, pp 212–19. Vines, ‘Wills as Shields and Spears’ Indigenous Law Bulletin, November 2001. See, for example, Jones v Public Trustee of Queensland (2004) 209 ALR 106 per McPherson JA at [20]; Mason v Tritton (1994) 34 NSWLR 572 at 594 per Kirby P. New South Wales Law Reform Commisson, Report 116, pp 240–6. NSW: Pt 4.4; Tas: Pt 4. NT: Div 4A. For background, see Vines, ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Aust Indigenous L Rep 1. NSW: s 133(1); NT: s 71B(1); Tas: s 34(1). NSW: s 135; NT: s 71B(1); Tas: s 36. NSW: s 133(2), (3); NT: s 71B(2)(c); Tas: s 34(2), (3). NSW: s 134(1), (3); NT: ss 71E(2), 71F(1); Tas: s 35(1), (3). NSW: s 134(3); NT: s 71E(3); Tas: s 35(4). Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld) s 60(1), (2). As to the backdrop to these provisions see New South Wales Law Reform Commission, Report 116, pp 233–5. [2015] 2 Qd R 559. Aboriginal Affairs Planning Authority Act 1972 (WA) s 35(1), (2). The order prescribed by regulation is found in Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 9(1). As to the backdrop to these provisions see New South Wales Law Reform Commission, Report 116, pp 235–7.

63.

For a more detailed analysis, see Dal Pont and Mackie at [9.28]–[9.68].

[page 291]

Family Provision

11

Introduction 11.1 As has often been pointed out,1 complete freedom of testation became a principle of English law only in the nineteenth century. That century saw the last restrictions on testamentary freedom lifted, but in earlier times a testator was circumscribed as to the manner in which he or she could leave property by will: see Chapter 1. The difficulty with a doctrine of complete freedom of testation is that testators have an absolute right to leave property to whomever they wish and may thus ignore the immediate claims of their family and other dependants. In civil legal systems, derived from Roman law, fixed proportions of the deceased’s estate are preserved for the surviving spouse and children. The solution adopted by the statutory regimes in Australia is different: the civil law systems were regarded as too inflexible and rigid, the preferred solution being to vest in the courts the discretionary power to award provision where the circumstances were appropriate. While this system has its disadvantages, not the least being the often substantial costs of the application and the distress caused by the necessity of taking court proceedings, it does have the flexibility of allowing consideration of the individual circumstances in each case. The legislation2 of all Australian jurisdictions basically provides that where the testator does not make adequate provision for the proper maintenance and support of certain dependants, the court may, at its discretion, make an

order for further provision out of the estate. The amount of the order depends upon the circumstances of each individual case. The legislation originally applied only to testate succession, but now also applies to cases where the intestacy rules (see Chapter 10) fail to make adequate provision. It will be seen that under this jurisdiction, [page 292] the courts are given substantial power to alter the original scheme of distribution, provided either by the will or the intestacy rules. In all jurisdictions an applicant for family provision must establish that: (1) they fall within one of the statutorily prescribed categories of applicants; and (2) there has been inadequate provision for the applicant under the will or under the rules of intestate succession.

Turning to the first jurisdictional issue, the categories of persons who may be granted an order under the legislation are not uniform.

Applicants: persons eligible to apply Spouses 11.2 In all jurisdictions legal spouses are eligible persons for the purposes of the legislation.3 Further, former wives, that is, those who have been divorced from the testator or intestate, may also make application, but in some jurisdictions may only do so if they have not remarried and/or are in receipt of maintenance or entitled to maintenance at the date of death of the deceased.4 Widowers may also apply, and again, in most jurisdictions, and subject to some specific limitations, this will extend to former husbands. Although former spouses who were divorced from the deceased may apply under the legislation, the court will take into account any property distribution that may already have been made under the Family Law Act 1975

(Cth).

De facto spouses, partners, same sex relationships 11.3 The original legislation restricted the meaning of spouses to legal spouses, that is, to those who had been legally married. In the latter part of the last century there was recognition that many people, although not legally married, lived in a marriage-type relationship with legal consequences upon the death of either partner. The family provision legislation in all jurisdictions was accordingly amended to extend the definition of eligible applicants to de facto spouses. In most cases this was limited to opposite sex partners. More recently, however, there has been recognition of same sex relationships, with legislation generally providing that the gender of the parties in a de facto relationship is now irrelevant. This legislation has impacted upon the family provision legislation. The basic pattern of the legislation is to define a gender neutral de facto relationship and apply it to various legal relationships, including [page 293] family provision. Thus in New South Wales, s 57(1) of the Succession Act 2006 defines an ‘eligible person’, as, among other things, ‘a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death’. The section also includes as eligible persons, ‘a person with whom the deceased person was living in a close relationship at the time of the deceased person’s death’. The meaning of a de facto relationship is determined by the Interpretation Act 1987 (NSW) s 21C(2). The latter Act establishes the factors which are to be considered to determine whether or not a de facto relationship exists. In determining this matter, the latter Act (in s 21C(3)) also includes a list of matters to be taken into account. Close personal relationships are separately defined in s 3(4) of the former Act.

Similar schemes have been adopted in all other jurisdictions, albeit with some variations.5 In Tasmania, for example, s 2 of the Testator’s Family Maintenance Act 1912 (Tas) defines a ‘spouse’ as including a person within a significant relationship, within the meaning of the Relationships Act 2003 (Tas). While the Relationships Act, as in New South Wales, provides criteria to establish such a relationship, it is also possible to register a deed of relationship. On registration, proof of registration is proof of the relationship, so that it is not necessary to have regard to the criteria. In South Australia, similarly, it is possible under s 11B of the Family Relationships Act 1975 (SA) to make application to a court for a declaration as to a domestic partnership. While this is the general pattern, there are variations on the factors which constitute a de facto relationship, and the reader is specifically directed to the legislation, noted above, in each jurisdiction.

Children 11.4 In all jurisdictions, a child of the deceased of any age may make application.6 As in the case of the intestacy rules (see above, Chapter 10 at 10.9) a child includes an ex-nuptial, adopted or artificially conceived child. In some jurisdictions step-children are specifically included in the definition of child or made applicants in their own right.7 In South Australia, the Australian Capital Territory and the Northern Territory, there is a requirement that to be eligible to make application, the step-child must be a person who was maintained by the deceased immediately prior to his or her death.8 Apart from Queensland, there is no current definition of step-child except to include it in the definition of child, so that the difficulties caused by previous restrictive statutory definitions, particularly in Queensland [page 294]

and Tasmania, have now been removed.9 In New South Wales, the general dependency provision, discussed immediately below in 11.5, would also cover step-children. In Western Australia, step-children are currently included as eligible applicants. In Victoria, ss 90 and 91 of the Administration and Probate Act 1958 (Vic) include in the definition of eligible persons a stepchild if the deceased who at the time of the deceased’s death was under the age of 18, a full-time student between 18 and 25 years, or a step-child with a disability.

Dependency: New South Wales and Queensland 11.5 In both New South Wales and Queensland, the legislation has been considerably extended to allow dependants to make application. It is worthwhile setting out the definition of ‘dependant’ contained in the Queensland legislation:10 ‘dependant’ means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being — (a) a parent of that deceased person; or (b) the parent of a surviving child under the age of eighteen years of that deceased person; or (c) a person under the age of eighteen years.11

It should be noted, however, that under s 41(1) and (1A) of the same Act, the court is unable to make an order in respect of a dependant unless it is satisfied, having regard to the extent of maintenance and support received by the dependant, of the need of the dependant for the continuation of that maintenance and support, and in the circumstances of the case, that it is proper that some provision should be made. The New South Wales legislation is wider, including in its definition of persons eligible to make application, a person ‘who was, at any particular time, wholly or partly dependent upon the deceased person’ provided that the applicant was a member of the deceased’s household at any time or is a grandchild of the deceased.12 Obviously, this permits an application by any person who is not related to the deceased, or even if related, does not come

within the other categories [page 295] of applicants. There is no need therefore for total dependancy in these circumstances.13

Others — including the previous Victorian position 11.6 It is probably apparent from the above discussion that, while the basic aim of family provision is clear, each jurisdiction in Australia has taken a different approach as to who may be eligible to make application. It is unsurprising, therefore, to find that in some states, brothers and sisters of the deceased are eligible,14 but in others they are not. The same may be said of grandchildren and parents. In all cases there are limitations and conditions on the eligibility of such applicants, and the reader is directed to the actual legislation noted above (footnote 2), to ascertain the exact position in each jurisdiction. In this context, the former Victorian legislation provided an interesting solution. It no longer included a list of specific categories of persons who are eligible to apply for family provision. Rather, s 91(1) of the Administration and Probate Act 1958 (Vic) provided as follows: … the court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

The aim of the legislative provision was to enable a wider group of people to apply for family provision, the sole criteria being ‘responsibility to make provision’. To assist the court in making a determination as to this matter, s 91(4) specified a substantial list of factors to which the court must have regard. However, in October 2013 the Victorian Law Reform Commission recommended that Victoria reintroduce categories of eligible claimants for

family provision claims and this was acted upon by the government by the passage of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic).15 As may be seen from the discussion above, each jurisdiction has taken a different approach to the position of applicants. This is quite clearly undesirable, particularly where the property of the deceased is spread throughout many states and territories.16 The National Committee for Uniform Succession Laws has addressed this problem in its overall consideration of family provision legislation in Australia.17 The recommendation as to eligibility to apply for family provision combined the former Victorian approach of a general criteria-based category (as discussed above) with a restricted form of the traditional approach, under which particular categories of person are specified. The Committee recognised that there [page 296] may be eligible applicants not within the traditional categories who may nevertheless have a legitimate claim on the estate of the deceased, but preferred also to include the existing categories of spouses (including de facto spouses, however defined by state and territory legislation) and infant children. The latter two categories should not have the added burden of establishing that the deceased had a ‘responsibility’ to them.

Time limits for application General 11.7 Naturally, it is in the interests of the surviving family of the deceased to have administration of the estate completed speedily, and the property distributed in accordance with the will or the rules relating to intestacy. A claim for family provision will delay this process, so time limits have been

imposed under the legislation, beyond which it will be impossible to make an application (except with leave of the court: see 11.8 below). The actual limit varies in each jurisdiction, being three months from the grant of probate or letters of administration in Tasmania,18 six months in Victoria, South Australia and Western Australia,19 and 12 months in the Australian Capital Territory and the Northern Territory.20 In Queensland, the application must be made within nine months from the date of death.21 Finally, in New South Wales an application must be made within 12 months of the date of death.22

Extensions of time 11.8 In all jurisdictions, the court has discretion to direct an application to be heard out of time. The usual provision is to the effect that an extension of time will not be granted after final distribution of the estate, and if an extension of time is granted, then generally any order for distribution may not affect a distribution that has already been made. In exercising its discretion the court will take into account all the circumstances of the application. Relevant factors include the failure of a solicitor to advise the applicant correctly,23 the applicant’s own ignorance of the right to apply,24 or ignorance of the size of the estate,25 or of a material fact concerning the interest conferred by the will.26 Of course, [page 297] many other circumstances will also justify an extension.27 On the other hand, the court will also take into account any hardship that may be caused to beneficiaries of the estate by the granting of the application.28 It may well be, for example, that those beneficiaries have already changed their financial position by relying on the actual provisions of the will.29 As stated above, in most jurisdictions the legislation provides that an extension will not be granted after ‘final distribution’ of the estate. What is the

meaning of these words? It may well be argued that a final distribution occurs when the process of administration is complete and the executor assents to the dispositions contained in the will, in the meantime holding the property as trustee and not as executor. That view was, however, emphatically rejected by the High Court of Australia in Easterbrook v Young.30 In that decision the High Court held that final distribution only occurred when the property was placed in the hands or name of the actual beneficiaries. If the executor still held as trustee, no final distribution had taken place. Therefore, in those circumstances, an application for extension of time may still be made.31

Criteria in determining entitlement Twin tasks 11.9 There is now no doubt that in all jurisdictions the legislation is said to contain the so-called ‘twin tasks’, one being jurisdictional and the other discretionary. The jurisdictional question relates to whether the applicant has been left without adequate provision for proper maintenance and support. If, and only if, that condition is satisfied may the court embark on the discretionary question as to whether provision should be made, and, if so, to what extent. In the oft-quoted words of the High Court in Singer v Berghouse:32 The determination of the first stage in the two-stage process calls for an assessment of whether provision (if any) was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, among other things, to the applicant’s position, the size and nature of the deceased’s estate, the totality of the relationship between the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise,

[page 298] involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate

provision, in which event, if it becomes necessary to embark up on the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

As has also often been pointed out, there is likely to be a substantial overlap in the matters taken into consideration in determining both questions.33 More recently, there has been some debate, particularly emanating from the New South Wales courts, as to the continued relevance of the ‘twin tasks’ in determining claims. Primarily, the matter arose because the ‘twin tasks’ approach was articulated prior to the passage of the Succession Act 2006 (NSW). In Andrew v Andrew34 it was suggested by Basten JA that because of that legislation the two-stage process was no longer required.35 In Poletti v Jones,36 however, Basten JA stated37 that what had been stated by him in Andrew v Andrew: … was not to say that there might not be circumstances in which such an approach was the preferable way to proceed. My only point was that the legislation no longer dictated such an approach in circumstances where a rigid determination of issues along those lines would be artificial, a point made by Callinan and Heydon JJ in Vigolo v Bostin … A case under different legislation.38

The matter was again reviewed by the New South Wales Court of Appeal in Burke v Burke39 where Ward JA noted that Barrett JA, while dissenting in the actual result in Andrew, was of the opinion that the approach taken under the former Family Provision Act remained relevant and applicable and should be followed, and Allsop JA described the issue as an ‘analytic question of little consequence’. However, when the matter returned again to the New South Wales Court of Appeal in Underwood (formerly Gaudron) v Gaudron40 Basten JA was critical of the approach taken by the trial judge in applying the two-stage approach, noting the awkwardness of that application of the approach in the conclusion of the trial judge. However, he also held that there was no appreciable error.41 [page 299]

General approach to claims 11.10 As pointed out in 11.9 above, the legislation in all jurisdictions provides that before a court may proceed to make an order for provision it must be satisfied that adequate provision has not been made (either under the terms of the will or upon intestacy) for the proper maintenance and support of the applicant.42 The meaning of this general jurisdictional barrier has been the subject of extensive judicial discussion, the most cited authority being the decision of the Privy Council in Bosch v Perpetual Trustee Co Ltd.43 The Privy Council made it clear that the words ‘adequate’ and ‘proper’ establish independent tests as to eligibility. As explained by the Judicial Committee, ‘adequate’ relates to the actual needs of the applicant. What is ‘proper’ is a matter that can only be determined by having regard to all of the circumstances of the case. As Lord Romer stated: A small sum may be sufficient for the ‘adequate’ maintenance of a child, for instance, but having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance. So, too, a sum may be quite insufficient for ‘adequate’ maintenance of a child and yet may be sufficient for his maintenance on a scale that is ‘proper’ in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his ‘adequate’ maintenance. Nevertheless, such sum cannot be described as not providing for his ‘proper’ maintenance, taking into consideration ‘all the circumstances of the case’ as the subsection requires shall be done.44

It was emphasised in that case that in determining what was ‘proper’ maintenance the court was to place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator as a wise and just, rather than a fond and foolish, husband or father. Similar sentiments were expressed by Edwards J in an earlier New Zealand decision, Allardice v Allardice,45 where he stated that the duty of the court was to place itself in the position of the testator and to consider: [W]hether or not, having regard to all the existing facts and surrounding circumstances the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving husband or father owes towards his wife or towards his children.46

It is this ‘moral test’ that has constantly been reiterated by subsequent

decisions, and, until recently, had been accepted as good law in all Australian jurisdictions. However, in an obiter comment in [page 300] Singer v Berghouse47 the majority of the High Court indicated that references to the ‘moral duty’ of the testator amounted to a gloss on the family provision legislation, and should be ignored. This call for a return to a closer reading of the family provision legislation devoid of ‘moral’ considerations was heeded by a majority of the New South Wales Court of Appeal in Permanent Trustee Co Ltd v Fraser.48 In that case the Master of the Supreme Court had referred to the moral obligation of the deceased to make proper provision for the applicant and made orders he considered appropriate for the fulfilment of this moral obligation. Although they accepted that the obiter comments in Singer v Berghouse ought be considered to be an authoritative restatement of the law with respect to the interpretation of ‘proper’ provision, both Kirby P and Sheller JA considered that the Master’s repeated references to the moral obligation of the deceased had not led the Master into any substantive legal error, the only error being one of language. After Permanent Trustee Co Ltd v Fraser the Victorian Court of Appeal in Grey v Harrison49 declined to apply the obiter comments of the High Court in Singer v Berghouse upon the basis that the judicial gloss upon the words of the family provision legislation was too entrenched to be overturned by an obiter comment of a majority of the High Court. The approach was affirmed in Collicoat v McMillan.50 Across other Australian jurisdictions there had been a similar divergence of opinion. The decision in Permanent Trustee Co Ltd v Fraser was applied in the Australian Capital Territory decision of Hackett v Public Trustee (ACT).51 However, in Western Australia the traditional approach had been affirmed in Goodchild v James.52 In Tasmania, Underwood J, in Gerlach v Public Trustee,53 indicated that there may be more smoke than fire in the apparently

conflicting approaches to the application of the relevant provision. On his Honour’s view, there was little practical difference between the tests propounded in Bosch and Singer. Despite substantial changes to the legislation in Victoria in 1999, there have been a series of decisions reaffirming the so-called ‘moral’ approach.54 The whole matter has more recently been reconsidered by the High Court in Vigolo v Bostin,55 a case on appeal from the Western Australian Full Court of the Supreme Court. In that case an unsuccessful application was made by an adult son for an order in respect to his father’s estate, which was worth approximately $1.9 million. The son was the eldest of five children. The estate was left by the father’s will to [page 301] be divided equally between the other four children, thus excluding the applicant. The reason for the exclusion was that the testator believed that inter vivos transactions, which were considerable, had already made more than adequate provision. Indeed, on application, the applicant possessed assets worth approximately $1.5 million. He was in a far superior financial situation to his siblings. The application (for a one-fifth share of the father’s estate) was thus not based on need, but what was argued as a ‘moral claim’. This likely was based on the applicant’s contribution in building up the father’s estate (a farming enterprise) with little remuneration. In the event, both the Supreme Court and the Full Court in Western Australia held that the applicant had not been left without proper maintenance and advancement in life. This was upheld by the High Court, particularly on the ground that the inter vivos transactions had already made sufficient provision; the size of the testator’s estate, the age and financial circumstances of the applicant and the comparative situation of the applicant’s siblings, and their claims on the testator’s bounty, were also factors considered in denying the application.

On the facts, therefore, while the case was unusual in that it was not based on need, it was hardly remarkable in its circumstances. The High Court, however, took the opportunity specifically to comment on the approach to claims. Unfortunately, the judgments were not unanimous in respect to the ‘moral duty’ approach. Gleeson CJ considered ‘moral duty’ to be a useful and valuable way to express the value judgments which must necessarily be made in considering applications under the legislation. He stated that while the concentration remains on the legislation, expressions of moral duty are valuable in explaining the meaning of the legislation and should not be discarded.56 In their joint judgment, Callinan and Heydon JJ basically agreed, stating that while a moral claim cannot be founded upon considerations not contemplated by the legislation, it was a relevant concept in considering claims within such contemplation. Their Honours pointed to the long line of judicial authority endorsing such an approach, and concluded that such concepts as ‘moral duty’ and ‘moral obligations’ were by no means concepts ‘alien to or in any way outside the language of … the Act’.57 On the other hand, the minority judges on this issue, Gummow and Hayne JJ, noted that many expressions of ‘moral duty’ had occurred prior to significant changes in the legislation in more recent times, and that there is a real need for caution in a continued reiteration of the moral duty owed to applicants as an aid to construction of modern legislation. The approach taken in Singer v Berghouse58 and Permanent Trustee Co Ltd v Fraser59 was correct. An adherence to the statutory language without reference to ‘moral duty’ or ‘moral claims’ was required.60 [page 302] The judicial response to this division of opinion in the High Court has been muted and ambivalent, although as yet there have been few decisions of note. Unsurprisingly, the New South Wales Court of Appeal, in LloydWilliams v Mayfield,61 reiterated its position in Fraser ‘which now, control

the courts’ use of these [“moral duty” and “moral claims”] and like expressions’.62 The court observed that the observations on moral duty in the judgment in Vigolo were ‘not uniform in effect and did not appear to have been part of the ground for decision in that case’.63 Conversely, the Victorian Court of Appeal, again unsurprisingly, found support in the majority position in Vigolo for its own previous position as to ‘moral duty’ and ‘moral obligations’. In Lee v Hearn,64 for example, the court acknowledged that the Western Australian statutory provisions, considered in Vigolo, were very different from the current Victorian provisions, but nevertheless the majority judgments reinforced the position taken by the previous authorities in that jurisdiction.65 Indeed, the new legislation in that state, in s 91(2)(c) and (4)(a), now dictates that both in the first and second stage of the two-stage process there should be a finding that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support.66 Given the persuasive authority of the majority position in the High Court, it is possible that this will be the future direction taken in all jurisdictions apart from New South Wales. Whether there is a substantial difference between the two positions, leading to different results, is, as indicated above, very much debatable.67 In the meantime, there are many expressions to the effect that even if the courts persist with a so-called ‘moral duty’ and ‘moral claim’ approach, that is not a static concept and involves consideration of contemporary community standards. As stated by Callaway JA in Lee v Hearn: It is one thing to say that the prejudices of a nineteenth century paterfamilias are an unsafe guide or that the courts should no longer discriminate against adult sons, rather than dealing with the claims of adult children according to their individual circumstances. It is another thing altogether to say that ‘wisdom’, ‘justice’ or ‘morality’ forms no part of contemporary Australian standards or fails to supply the norm that the legislation has indicated …68

Finally, specific mention must be made of the concept of ‘accepted community standards’ in the process of assessment of claims. As has

[page 303] often been emphasised, the courts discretion is not untrammelled, nor to be exercised accordingly to idiosyncratic notions of what is thought to be fair. After all, a successful claim will override the provisions of the testator’s will in the case of testate succession. On the other hand, it has also been repeatedly stated that when determining whether a family provision order is to be made the court is to have regard to perceived prevailing community standards or expectations of what is right and appropriate.69 In Chapple v Wilcox,70 for example, the New South Wales Court of Appeal particularly emphasised the central role played by community or community expectations on any decision as to whether to take the significant step of overturning the express wishes of the testator.71 But the question which arises is to the actual meaning of ‘community standards’ or ‘community expectations’. Again, it has often been pointed out that those standards cannot be explained other than by reference to the statutory provisions, but that view will undoubtedly vary within the community as to the weight to be given to the testator’s wishes as expressed in the will.72 Nevertheless, care should be taken here, and the following quotation from the judgment of White J in Slack v Rogan; Palfey v Rogan73 is appropriate: I know of no way of determining what the community would expect, what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standard are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example that a testator need not make provision for an able-bodied person, or that a widow’s claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.

Similar sentiments have been expressed by Richardson P in Williams v Auccutt74 and Byrne J in Bentley v Brennan75 where his Honour stated: Difficulty arises where this is a relationship between members of the community with which the judge is not familiar. This may be a particular ethnic or social community; it may be a community whose bond is that

[page 304] of sexual orientation. In the absence of evidence of this, which may or may not be available or perhaps inadmissible, the judge must do the best he or she can, bringing to bear wisdom, an openness of mind drawing upon long experience of life and human conduct and attitudes, and above all, resisting the temptation to apply perceived stereotypes. Another temptation to be resisted is to assume that all members of the community think and conduct themselves like the judge and share the same values and moral imperatives.

Specific factors 11.11 There are obviously many circumstances regarded by the court as being relevant to assessing whether adequate provision has been made for the proper maintenance and support of the applicant.76 They include the following: (1) Size of the estate. In Re Buckland77 the deceased’s estate was valued at close to £5 million. Under the deceased’s will the applicant, the deceased’s daughter, was left real and personal property to the value of approximately £9500 and an annuity of £3500. The application for further provision was successful, the court holding that the testator had not in all the circumstances made adequate provision for the proper maintenance and support of the daughter. While on one view the benefit may have been described as adequate, given the size of the estate, it could not be described as proper in all the circumstances. (2) Means and financial responsibilities of the applicant. This will include examination of capital assets and earning capacity including the effects of inflation and taxation.78 It appears that if an applicant is entitled to benefits under the social welfare system, then that will be taken into account, it not being the duty of the court to make an order if the effect of the order would be merely to relieve a charge on state revenue.79 Financial responsibilities will include any financial responsibilities the applicant may have to his or her own dependants,80 but not if there has been a voluntary assumption of the obligation.81 (3) Relationship of the applicant to the deceased and also the age and health of the applicant.

Obviously, these are all relevant factors. It used to be said that in the case of applicants who were adult sons [page 305] (provided that they were able-bodied), the approach of the court should be different to the other applicants and, for a successful claim, it had to be shown that there was a special need.82 That approach has now been abandoned.83 (4) Services rendered by the applicant to the deceased, for example, in building up the estate. In Coates v National Trustees Executors and Agency Co Ltd,84 the successful applicant was the son of the testator and the only child. For a considerable period of time he assisted his mother in the running of her hotel premises and the renovation and subsequent sale of residential houses. He did so for very low remuneration, acting apparently on the promise that by so doing, everything the mother possessed would eventually go to him. This was not in fact the case under the terms of the will.85 It should be noted, however, that the services need not be of a monetary kind: ‘If the claimant has made sacrifices on the testator’s behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered …’86 The New South Wales, Victorian and Australian Capital Territory legislation now specifically provides that the court may take into account direct or indirect contributions made by the applicant towards the acquisition, conservation or improvement of the deceased’s property, or to the welfare of the deceased.87 (5) Other factors that may be relevant. These include promises made to the applicant concerning the provisions of the will, on which the applicant has acted,88 benefits the applicant may have received from the deceased during the applicant’s lifetime,89 the relationship between the deceased and the applicant,90 and, of course, the duty of the testator to provide for other members of the family.

[page 306]

Time for ascertaining adequacy and propriety 11.12 In most jurisdictions, the question of whether the provision made in a will for an applicant is in fact inadequate is determined not at the date of the actual application but rather at the date of death of the testator. This was established by the High Court of Australia in Coates v National Trustees Executors and Agency Co Ltd,91 and means that the court must place itself in the position of the testator at that time and only take into account matters the

testator then knew or reasonably could have foreseen. In the words of one judge: ‘Unforeseeable circumstances arising after that event [the death of the testator] surely could not govern the wisdom or justice of his actions whilst alive.’92 Care should be taken here, however, as it has also been stated that it would not be a proper exercise of the court’s discretion if the facts as they exist at the time the order was made were left out of account. In other words, if the jurisdictional barrier is overcome, and it can be established that at the date of death of the testator the applicant was left without adequate provision for proper maintenance and support, then the amount of the award may be affected by changes in circumstances that may have occurred between the date of death and the date of the hearing.93 In New South Wales, s 59(1)(c) of the Succession Act 2006 (NSW) reverses the position established in Coates v National Trustees Executors and Agency Co Ltd.94 It provides that the court is to consider the question of whether there has been inadequate provision for the proper maintenance, education and advancement in life of the applicant at the time it is determining whether or not to make the order. There is a similar provision in the Australian Capital Territory.95

Disentitlement: character and conduct of the applicant General 11.13 If an applicant is able to satisfy the criteria discussed in 11.10 above, that does not necessarily mean that an order will be made in the applicant’s favour. In five jurisdictions there are provisions that stipulate that the court may refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, [page 307]

disentitles her or him to the benefits of an order.96 A slightly different approach is taken in the Australian Capital Territory and Victoria.97 In both jurisdictions, the character or conduct of the applicant goes to the jurisdictional question as to whether the applicant has been left without adequate provision for maintenance and support; it is merely a factor among many others to be taken into account in determining that question.98 The position is similar in New South Wales.99 In Re Will of Gilbert (decd)100 it was made clear that the character or conduct that will disentitle an applicant to the benefit of an order under the legislation means character or conduct relevant to the purposes the legislation is intended to serve, for example, misconduct towards the testator, or character or conduct that shows that any need an applicant may have for maintenance and support is due to her or his own default. In that case the applicant’s perjury in the conduct of the proceedings was not sufficient to disentitle, although it was stated that the act of perjury may well affect the credibility of the applicant’s uncorroborated testimony. There are many examples of disentitling character and conduct. On a very general basis, adultery, desertion, and renunciation of the marriage relationship, in the case of spousal applicants, have been considered by the court as disentitling factors.101 Of course, all of these cases were decided prior to the Family Law Act 1975 (Cth) which established a ‘no fault’ divorce regime, and prevailing community attitudes today will dictate a more tolerant approach.102 In the case of child applicants, chronic drunkenness103 and complete separation from the parent104 have been treated in the same manner. Nevertheless, in all cases, the observation of Gibbs J in Hughes v National Trustees Executors and Agency Co of Australasia Ltd105 should be borne in mind: The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his or her need or claim to provision from the estate of the testatrix. The stronger the applicant’s case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.

Indeed, this is the more common view taken in respect to modern family provision applications. There are many cases, but the decision of [page 308] the Victorian Supreme Court in Herszlikowicz v Czarny106 provides an apt example. In that case in considering the character and conduct of the applicant, the judge commented as follows: There is no dispute that the plaintiff [applicant] finds himself in his current state of impecuniosity, and consequent great need, by reason, in large part, of deficiencies in his own character and conduct. His conduct evidences a combination of mere foolishness, extravagance, excessive gambling to the point of addiction, drug addiction, weakness of character and even moral turpitude attracting criminal convictions and penalties including a term of imprisonment.107

However, even given this, there were other factors, in particular, the health and financial position of the applicant, which warranted a finding that the provision which had been left for him by his father’s will was neither adequate nor proper.108 It has also been established that reasonable attitudes are expected of the testator, and in some cases religious differences, for example, were held not to disentitle.109 The onus of proof on establishing disentitling character or conduct rests on the person alleging it.110

Time for ascertaining character and conduct 11.14 There has been some dispute in Australian law as to the correct time to examine this issue. On the one hand, there are authorities that state that the correct time is at or before the date of death of the testator, so that any disentitling behaviour after death should be ignored.111 This would seem to be the logical approach, given that the rationale for the restriction is misconduct towards the testator, or default on the part of applicants to support themselves properly: see 11.13 above. On the other hand, there are

cases that suggest that the character and conduct of the applicant after (as well as before) the death of the testator must be taken into account.112 At least in New South Wales the position is made clear, as the legislation specifically states that one matter to be considered is the character and conduct of the applicant before and after the death of the deceased.113

Partial disentitlement 11.15 It appears from the authorities that the character and conduct of the applicant may have an effect on the amount of provision ordered by the court, so that a reduced quantum may be ordered if the court is so minded. In other words, the disentitlement provision is not always an ‘all [page 309] or nothing’ provision. In In Re Paulin,114 for example, Scholl J stated as follows: There may be cases where the court, though moral claim is not fully rebutted, is yet satisfied by direct evidence, or by inference from applicant’s answers to testator’s allegations, or both, of enough matters to reduce the provision which should have been made if applicant’s character and conduct had been unassailed or the moral claim unabated.

There are other cases to the same effect.115

Statements made by testator 11.16 In some cases the testator will specifically refer to the conduct of a person as grounds for refusing to confer any benefit upon that person. The evidential weight of such statements must be considered. Assume that a testator gives instructions to a solicitor to prepare a will. The testator explains that he is not prepared to leave any of his property to his only son, as that son is a scoundrel and drunkard, who married against the testator’s wishes and is therefore undeserving of benefit. He wishes to leave all his property to charity. The will is prepared in accordance with those instructions, and

contains a statement as to why the testator has left nothing to his son. After the testator’s death, the son brings an application for family provision. The executor defends the action,116 arguing that the character and conduct of the son disentitled him to any benefit, even if he was otherwise entitled. How is the court to treat the oral statement of the testator to the solicitor and the written statement in the will in these circumstances? Apart from specific statutory provisions, discussed below, the answer to this question is that the statements are in fact admissible in evidence to show the reason why the testator made the will in the particular way he did, but, importantly, cannot be treated as the truth of the facts contained in the statements.117 In particular, such evidence, though admissible in the technical sense discussed, does not shift the onus of proof to the applicant to disprove the matters contained in the statement. In the example above, therefore, the executor may have the statements admitted, but the burden of proof is still upon the executor to establish disentitling character and conduct. She or he cannot rely on the statement to show the proof of the matters contained in these statements and cannot require the applicant to carry the onus to disprove them. There are some earlier authorities suggesting that the onus of proof may shift in those circumstances,118 but the High Court, in Hughes v National Trustees Executors and Agency [page 310] Co of Australasia Ltd119 has authoritatively established that this is not the case. In the words of Murphy J: Complaints by the testator about the appellant’s conduct were introduced before the trial judge. A testator’s complaints are not evidence of the truth of the facts or circumstances complained of and are not admissible to prove disentitling matters … but may explain the disposition … If the matters complained of are proved to be correct, they may or may not provide grounds for disentitlement … They may disclose only irrationality or petulance … If it is intended to show character or conduct disentitling an applicant … the onus is on those who assert it to prove it. An applicant should not be required to disprove, as part of his case, the substance of any

complaints against his character or conduct.120

In New South Wales, however, the legislation121 now provides that oral or written statements made by the deceased may be admitted as evidence of any fact stated therein if direct oral evidence by the deceased of that fact would have been admissible. The admissibility of such evidence is unaffected by the rule against hearsay, but the value of the evidence is a matter for the court, looking at all the circumstances. In Tasmania, the Northern Territory and the Australian Capital Territory,122 it is provided that the court may have regard to the deceased’s reasons, so far as they are ascertainable, for making the dispositions in the will, or for not making any provision or further provision for any person, and the court may accept such evidence of reasons as it considers sufficient whether or not that evidence would otherwise be admissible. A similar provision is contained in the Victorian legislation.123 It should be noted that the uniform evidence legislation also contains various exceptions to the rule against hearsay, so that quite apart from the family provision legislation, it may be possible to admit statements by the testator under these provisions. For example, in the Australian Capital Territory, New South Wales, Victoria and Tasmania,124 evidence that is relevant is admissible in a proceeding unless otherwise excluded by the legislation. Without going into detail, while evidence of a previous representation made by a person is generally not admissible to prove the existence of a fact that the person intended to assert by the representation, if the representation is admitted as relevant for any other purpose, the general hearsay rule does not apply. There is also an exception to the general rule where a person is unable (because of death) to give evidence in civil proceedings. It would appear that these exceptions are broader than those contained in the New South Wales family provision legislation, discussed immediately above.125 [page 311]

Property out of which order may be made General 11.17 In all jurisdictions other than New South Wales, the position of which is discussed at 11.23 below, the legislation provides that any order of the court is restricted, in respect to the property to which the order applies, to the estate of the deceased. The legislation is therefore relatively unsophisticated, not containing any anti-avoidance provisions, in contrast to the position in the United Kingdom126 and New South Wales. A testator is thus given considerable scope to defeat a potential application, by removing property that would otherwise have formed part of the estate. The simplest way to achieve this is for the deceased to dispose of his or her property before death, for example, by making inter vivos gifts. If the gift is effective,127 the court has no jurisdiction to touch that property, as it does not form part of the estate of the deceased. It is not to the point that the gift was made with the purpose of defeating a potential claim.128 It should be noted, however, that this principle is also subject to another, which may override it. In Bridgwater v Leahy129 the High Court held that an inter vivos transaction of this nature may be set aside on the general equitable principles of unconscionability and undue influence if those factors are proved. In that case, a testator had sold a portion of his property to his nephew for its true value, but by deed had forgiven a substantial portion of debt. The nephew also benefited under the testator’s will by being gifted an option to purchase the testator’s rural property at a substantial undervalue. An application to set aside the deed by the widow and daughters of the testator, who were otherwise barely provided for in the will, was successful. The court held that the testator was in a disadvantaged position when the deed was executed, having an emotional attachment and dependency on the nephew. The nephew had taken advantage of this to obtain the benefit. As is pointed out by Cook:130 … the decision provides a warning for solicitors on the risks involved in advising clients that

by disposing of assets while alive they can avoid the intrusive hand of a court of law after death.

As in Bridgewater it may be that the pre-death transaction is made in circumstances where it would be unconscientious for the beneficiary to take the legal advantage of that benefit, and thus it can be set aside on that basis. [page 312] Another method of avoidance is to increase the liabilities and so reduce the net estate. The usual method here is for the deceased, while alive, to enter into a contract to leave property by will to a certain person. The contractual obligation becomes a liability on the estate, which must be discharged before the net estate is ascertained. This matter will be dealt with separately at 11.22 below, but before doing so, it is necessary to examine a number of other transactions which may, or may not, have an effect on the property contained in the estate of the deceased.

Donatio mortis causa 11.18 This doctrine has already been discussed in a general way in Chapter 2. It may be recalled that a donatio mortis causa is a gift made in the lifetime of a person but in contemplation of death and conditional upon that death actually taking place. In Queensland it is specifically stated under the legislation that property that is the subject of a donatio mortis causa is to be treated as part of the estate for the purpose of family provision,131 and in New South Wales, such a gift would most likely be caught by the general provisions.132 In other jurisdictions, it would appear that an effective donatio vests the property, the subject of the donatio, in the hands of the donee upon death of the donor, and therefore cannot form any part of the estate of the deceased.

Joint banking accounts

11.19 In the case of Re Brownlee,133 a testator died leaving her entire estate to her daughter, and excluding her three other children. The estate, after administration, was valued at just under $4000. At the time of her death, however, there was a sum of approximately $87,000 standing to credit in a joint banking account in the name of the testator and the daughter. The evidence before the court was that the account was originally a joint account with the testator’s husband, but after his death, the daughter was added as the other joint account holder. There was also evidence to the effect that the testator had expressed a wish that in the event of her death, all the money in the joint account should go to the daughter and the purpose of the account was to enable money to be gifted to the daughter. The other children sought orders for family provision out of the estate of the deceased, claiming that the amount in the joint account should be regarded as part of the deceased’s estate. This argument was unsuccessful, the court holding that neither in law nor in equity did the money pass to the personal representatives of the deceased, but rather vested in the daughter absolutely on the death of the testator. There was evidence of a clear intention on the part of the testator to confer a beneficial interest on the surviving joint account holder. This decision is in accordance with the Australian High Court authority of [page 313] Russell v Scott,134 which is discussed in Chapter 2 above. Again, much will depend, however, on the actual intention of the deceased in setting up the account.135

Joint tenancies of real estate 11.20 In contrast to a tenancy in common of real estate, a joint tenancy has the special feature of a jus accrescendi or a right of survivorship. This means that if two people are joint tenants, and one dies, the entirety of the

estate vests in the surviving joint tenant. Importantly, it does not vest in the personal representative of the deceased and therefore does not form part of the estate out of which family provision may be ordered. Again, in New South Wales, however, property held in joint tenancy may be designated as part of the ‘notional estate’ of the deceased: see 11.23 below.

Property distributed in administration 11.21 A number of matters should be noted. First, if there has been due administration of the estate in that the personal representative has distributed the assets of the estate in the due course of administration, then those assets clearly cease to be part of the deceased’s estate and therefore cannot be subject to an order. The former estate of the deceased becomes the property of the beneficiaries.136 Second, however, the power of the court to make provision is not defeated by a purported final distribution of the estate before the time for making an application under the legislation has in fact expired.137 As was stated by the High Court in Easterbrook v Young: In our opinion, the expression ‘out of the estate of the testator’ refers to the assets of which the testator might, at his death, dispose, and which have come or could have come to the hands of the personal representative by reason of the grant of probate or letters of administration. When an application is made in time, it is out of those assets that provision may be made by an order operating as a codicil made by the deceased in his lifetime, even if, at the time the order is made, those assets have been distributed to the intended beneficiaries.138

Third, Easterbrook v Young139 is also authority for the proposition, discussed at 11.8 above, that there is no final distribution of the estate while the estate of the deceased remains in the hands of the personal [page 314] representative upon trust for the beneficiaries.140 This is particularly important in relation to out-of-time applications.

Property subject to contract: testamentary promises 11.22 This matter has already been discussed in a general way in Chapter 2: see 2.21–2.27. It will be recalled that, prior to the decision of the High Court in 2003 in Barns v Barns,141 the Privy Council, in Schaefer v Schuhmann142 declined to follow the earlier decision of Dillon v Public Trustee of New Zealand,143 where it was held that property that was the subject of a valid testamentary contract could be made the subject of an order under the legislation. The Privy Council, in the circumstances of the case before it, rejected this view and held that the contract had to be performed before any family provision claim could be entertained. By analogy with debts against the estate, it was the duty of the personal representative to perform the testator’s promise, so that property so utilised could not form part of the estate of the deceased for the purposes of a family provision claim. It should be reiterated, however, that that case involved specific property, and the circumstances could well have been different if the contract simply related to all the estate or the residue of the estate. In other words, the residue means residue after all claims have been made against the estate including any family provision claims. As explained in 2.26 the High Court in Barns v Barns144 refused to follow the decision in Schaefer v Schuhmann, holding instead that the property the subject of a contract was indeed available to satisfy an order under the family provision legislation. It would appear therefore that all such contracts, whether involving specific property, all the estate or the residue of the estate, will now be subject to the legislation.145

New South Wales: notional estate 11.23 Division 2 of Pt 2 of the Family Provision Act 1982 (NSW) contains detailed and complex provisions that are designed to prevent evasion of the legislation. In effect, the provisions allow the court to make an order out of property that does not form part of the estate of the deceased. An applicant for provision may apply for an order designating property as the ‘notional

estate’ of the deceased, and, if successful, that property (or money) is available for the purpose of [page 315] making provisions for the applicant. In outline, the scheme of the Part is as follows: (1) Relevant property transaction. Under this part, the court must be satisfied that the deceased entered into a ‘relevant property transaction’. Section 75 provides a broad definition of ‘relevant property transaction’. Under this definition, the deceased is deemed to have entered into such a transaction if through any direct or indirect act, or omission, property belonging to him or her becomes held by another person (whether or not as trustee) or becomes subject to a trust without the giving of full valuable consideration.146 Apart from this general definition, the Act specifies a number of prescribed transactions, including failure to exercise a power of appointment, the failure to prevent property passing by survivorship,147 the failure to exercise a power to extinguish a trust or interest held by another person over property, the failure to nominate a person as a beneficiary under a life assurance policy or to deal with entitlements under a superannuation fund, and entering into a contract for the disposition of property out of the deceased’s estate.148 The breadth of these provisions is illustrated by the decision in Kavalee v Burbidge; Hyland v Burbridge.149 In that case the deceased had attempted to limit the ability of his immediate family to benefit under his estate. To this end his advisers created a Stiftung, registered in Liechtenstein, over which they retained control. The deceased transferred substantial assets to this entity. Prior to his death, the deceased executed certain Memoranda of Wishes that expressed his preferred distribution of assets from the Stiftung. The contents of these Memoranda of Wishes were incorporated into the By-laws of the Stiftung, and were followed by the controller of the Stiftung upon the death of the deceased. The court held that the deceased had entered into a prescribed transaction by failing to induce the Stiftung to revoke the By-laws incorporating his Memoranda of Wishes. (2) Designation of notional estate. If the deceased has entered into a prescribed transaction prior to his or her death, the court may make an order designating property as notional estate. The requirements for such designation are as follows: (a) where the transaction took effect within three years of the deceased’s death, and was entered into with the intention of wholly or partly defeating or limiting a claim; or (b) where the transaction took effect within one year of the deceased’s death, was entered into at a time when the deceased had a moral obligation to make adequate provision for an eligible person, and that obligation of the deceased [page 316]

was substantially greater than the moral obligation of the deceased to enter into the prescribed transaction; or (c) where the transaction takes effect on or after the death of the deceased.150 (3) Restrictions. The Act does impose a considerable number of restrictions on the power of the court to designate property as notional estate. Under s 87(1), for example, the court may not exercise the power unless it has considered the importance of not interfering with expectations in relation to property, the substantial justice and merits involved in making or refusing to make the order, and any other matter it considers relevant in the circumstances. Further, it is made clear under s 88 that the court may not make a designating order unless there is no actual estate or if there is actual estate that estate is insufficient to enable the making of proper provision. (4) Order. Subject to these and other restrictions, an order for family provision may be made out of the property designated as the notional estate, and if so made, the rights of the holder of that property are defeated to the extent of the order.

Types of relief: orders Types of orders 11.24 Under the legislation, the court has substantial discretion in the type of orders it may make and may tailor the order to suit the particular circumstances of the case. As a consequence the court in general may order that a lump sum be paid to the applicant, or that the applicant should receive periodical or other types of payment, or that particular property should be transferred to the applicant, or that particular property should be acquired for the applicant. In the case of periodical payments, the court may make provision for indexation in respect of inflationary pressures.151 In all cases, the court may attach such conditions as it thinks fit to any order.

Variation of orders 11.25 Once an order has been made, circumstances may well change to the detriment of the applicant. In most jurisdictions, provision is made for the court to increase an order.152 In New South Wales, there is also

[page 317] power in the court to make an interim order, for example, in cases where the applicant is in immediate need.153

Burden of provision of orders 11.26 Naturally, an order made by the court under the legislation will cast a burden on the other beneficiaries under the will or those otherwise entitled in the case of an intestacy. This may pose a problem in achieving fairness between those beneficiaries. The general solution adopted by the legislation in most jurisdictions is simply to provide that the burden of the order will, unless the court otherwise determines, be borne between the persons entitled to the estate of the deceased in proportion to the value of their respective interests.154 The court may also exonerate any part of the estate from the incidence of the order.

Contracting out of the legislation General 11.27 It is not possible for the testator to contract out of the family provision legislation. In Lieberman v Morris155 the respondent, Elizabeth Morris, at the age of 42, married Jacob Morris, then aged 78. Prior to the marriage, the parties entered into an agreement under seal under which Elizabeth covenanted that she would not institute or prosecute any claim under the then family provision legislation of New South Wales. Jacob covenanted that he would devise or bequeath to her property to the value of not less than £500. By his will, he bequeathed £500 to Elizabeth, and by a codicil left to her his household furniture and effects and a sum of £3 per week until death or remarriage. Notwithstanding this agreement, Elizabeth made application for provision. The High Court held that she was not

precluded from doing so by reason of the agreement. The basis of the decision was that it would be contrary to public policy for such a contract to have effect. In the words of Williams J: The scope and policy of the Act … is to empower the court in the public interest to control for an important purpose the distribution of a testator’s estate. It is clear to my mind that to allow contracting out would prevent or tend to prevent the Act assuring to the dependants of a testator that full and effective benefit which it expressly states to be its purpose … the Act gives to all persons within the enumerated class an unconditional right to apply … To set up a contract as a bar therefore to the court exercising the whole or any part of its jurisdiction under the Act is to

[page 318] attempt to oust or fetter the discretion of the court entrusted with the application of the section.156

Similarly, it has been held in a number of cases that provisions in a will to the effect that a beneficial interest shall be forfeited if the beneficiary disputes the will are void on the grounds that such terms are contrary to public policy. In those circumstances, the beneficiary is again not precluded from making a claim without losing the benefit.157

Agreements under the Family Law Act 1975 (Cth) 11.28 Section 87 of this Act allows the making of binding financial agreements between spouses in situations of marriage breakdown. The agreement must be approved by the Family Court, and operates in substitution for the rights of the parties to apply for maintenance and other types of relief. It is possible that such an agreement could include a clause that precludes a party to the agreement from making a claim for family provision from the estate of the other party. On the authority of Lieberman v Morris,158 discussed above, it would appear that the clause, even if contained in an approved agreement, may be void. This is not the situation in New South Wales, which is discussed immediately below.

New South Wales: Succession Act 2006 s 95 11.29 This section provides that a person may agree, at any time, to waive his or her rights to apply for family provision. Such a release is ineffective unless it is approved by the court and proceedings for approval may be brought before or after the death of the deceased. The court is required to have regard to a number of factors in making its decision as to approval or otherwise, including whether at the time of the release it was financially or otherwise advantageous to the releasing party to enter into the agreement, whether the agreement was fair and reasonable, and whether the releasing party had and gave due consideration to independent advice. If a release is approved, then obviously the decision in Lieberman v Morris159 cannot apply.

1. 2.

3. 4. 5.

6. 7. 8. 9.

See, for example, Mellows, pp 175–6. The legislation is found in the following Acts: Succession Act 2006 (NSW) Pt 3.2; Administration and Probate Act 1958 (Vic) Pt IV; Succession Act 1981 (Qld) Pt IV; Inheritance (Family Provision) Act 1972 (SA); Family Provision Act 1972 (WA); Inheritance (Family and Dependants Provision) Act 1972 (WA). (The latter Act was renamed by the former in 2013); Testator’s Family Maintenance Act 1912 (Tas); Family Provision Act 1969 (ACT); Family Provision Act (NT). NSW: s 57(1); Vic: ss 90, 91; Qld: ss 5AA(2)(c), 41; WA: s 7(1)(a); SA: ss 4, 6(a); Tas: s 3A(a); ACT: s 7(1)(a); NT: s 7(1)(a). NSW: s 57(1); Vic: ss 90, 91; Qld: s 5AA; SA: s 6; WA: s 7(1); Tas: s 3A(a); ACT: s 7(1); NT: s 7(1). Qld: s 5AA(2)(C); Acts Interpretation Act 1954 s 32DA; SA: ss 5, 4, 6; Family Relationships Act 1975 ss 11, 11A, 11B; WA: s 7; Interpretation Act 1984 s 13A(2); ACT: s 7(1)(a), (9); Civil Partnerships Act 2008; NT: De Facto Relationships Act ss 3(1), 3A; Interpretation Act s 19A(3); Vic: ss 90, 91. If the child is a minor, another person may make the application on behalf of the minor. Qld: ss 40, 40A; SA: s 6(g); Tas: s 2(1); ACT: s 7(1)(d); NT: s 7(1)(d). In South Australia, the maintenance need not be whole, and only legal, not actual, entitlement is required: SA: s 6(g). The new definition in Queensland, s 40A(3) inserted in 1997, was specifically designed to overcome the previous law. In Tasmania, amendments to the Act in 2003 abandoned the previous definition. As to the previous position, see Re Burr [1988] 1 Qd R 23; Re Marstella [1989] 1 Qd R 638; Basterfield v Gay (1994) 3 Tas R 293; Connors v Tasmanian Trustee Ltd (1996) 6 Tas R 267; and Mackie, ‘Stepchildren and Succession’ (1997) 16 Uni of Tas LR 22. See particularly Freeman v Jaques [2006] 1 Qd R 318 and Powell v Monteath [2006] 2 Qd R 473 for recent Queensland decisions.

10. 11. 12.

13.

14. 15. 16. 17.

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Succession Act 1981 s 40. For discussion of s 40 see Re Cobb [1989] 1 Qd R 522 and Lohse v Lewis [2004] 2 Qd R 648. Family Provision Act 1982 s 6(1). The limitation relating to being a member of the deceased’s household does not apply in respect of grandchildren: see Atherton, ‘The Family Provision Act 1982 (NSW): A New Deal for the Family’ (1984) 58 ALJ 274. For discussion see Benney v Jones (1991) 23 NSWLR 559; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; Stephens v Perpetual Trustee Co Ltd (2009) 76 NSWLR 15; Morrison v Carruthers [2010] NSWSC 430. For example, SA: s 6(j). The Act came into force on 1 January 2015. See Hardingham, Neave and Ford at p 490 on this point. Report to the Standing Committee of Attorneys-General on Family Provision, QLRC, MP 28, December 1997, Ch 2; Supplementary Report to the Standing Committee of Attorneys General, QLRC, Report 58, July 2004, Ch 2. Tas: s 11(1). Vic: s 99; SA: s 8(1); WA: s 7(2). ACT: s 9(1); NT: s 9(1). Qld: s 41(1). NSW: s 58(2). Shannon v Public Trustee [1970] VR 876. Re Guskett [1947] VLR 212; In Re Barry (decd); Circosta v Executor Trustee and Agency Co (SA) Ltd (1974) 9 SASR 439. Re Nassim (decd) [1984] VR 51. In Re Marland (decd) [1957] VR 338. The authorities are usefully reviewed by Hallen ASJ in Gersbach v Blake [2011] NSWSC 368 at [99]–[104]. West v West (1996) 5 Tas R 392; Warren v McKnight (1996) 40 NSWLR 390; Girando v Girando (1997) 18 WAR 450; Ashhurst v Moss (2006) 14 VR 291. See, for example, Re Traeger [1948] SASR 284. (1977) 136 CLR 308. It would appear that the decision would apply in all jurisdictions except Queensland. Compare Re Burgess [1984] 2 Qd R 379 and Will of McPherson [1987] 2 Qd R 394 with Re Whitta [1984] 2 Qd R 356. (1994) 181 CLR 201 at 209–10 per Mason CJ, Deane and McHugh JJ. See Goodman v Windeyer (1980) 144 CLR 490 at 509; White v Barron (1980) 144 CLR 431 at 443. [2012] NSWCA 308; 81 NSWLR 656. Ibid at [29]. [2015] NSWCA 107. Ibid at [19]. Ibid at [21]. [2015] NSWCA 195. [2015] NSWCA 269. Ibid at [67]–[72]. (MacFarlen and Ward JJA agreeing). See also Sadiq v NSW Trustee and

42.

43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

Guardian [2015] NSWSC 716 at [294]–[298] per Hallen J. This is the terminology used in Queensland, Victoria and Tasmania: Qld: s 41; Vic: s 91; Tas: s 3. The other jurisdictions also employ in addition the terminology of ‘education and advancement’: NSW: s 59(1)(c); SA: s 7; WA: s 6; ACT: s 8; NT: s 8. Although the wording differs across jurisdictions, it is generally accepted that the scope of the provisions is identical: see Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 507 per Dixon J. The matter is not, however, free from doubt: see Anderson v Teboneras [1990] VR 527 at 587. [1938] AC 463. [1938] AC 463 at 478. (1910) 29 NZLR 959. (1910) 29 NZLR 959 at 972–3. See also Goodman v Windeyer (1980) 144 CLR 490. (1994) 181 CLR 201 at 209. (1995) 36 NSWLR 24. [1997] 2 VR 359. [1999] 3 VR 803. (1997) 138 FLR 323. (1994) 13 WAR 229 at 235. Unreported, SC(Tas), Underwood J, No 153/97, 22 December 1997. MacEwan Shaw v Shaw (2003) 11 VR 98; Harris v Bennett (2004) 8 VR 425; Blair v Blair (2004) 10 VR 69; Coombes v Ward [2004] VSCA 51 (but note Chernov AJ at [12]); Lee v Hearn (2005) 11 VR 270. (2005) 213 ALR 692. For discussion see Hamilton, ‘Vigolo v Bostin: Is the Concept of “Moral Duty” Still Relevant to a Family Provision Application?’ (2005) 26 Qld Lawyer 22. (2005) 213 ALR 692 at [25]. (2005) 213 ALR 692 at [120]–[121]. (1994) 181 CLR 201 at 209. (1995) 36 NSWLR 24 at 29. (2005) 213 ALR 692 at [63]–[73]. (2005) 63 NSWLR 1. Again, this was an unusual case where the claim was not based on need. In this case, however, the applicant was successful. (2005) 63 NSWLR 1 at [25]. (2005) 63 NSWLR 1 at [25]. (2005) 11 VR 270. In Queensland see Higgins v Higgins [2005] 2 Qd R 502; Freeman v Jaques [2006] 1 Qd R 318 (step-child); Powell v Monteath [2006] 2 Qd R 473 (step-child). See (2005) 11 VR 270 at [9] per Callaway JA; [53] per Batt JA; and [57] per Buchanan JA. See Justice Legislation Amendment (Succession and Surrogacy) Act 2014. See the discussion in Hamilton, op cit footnote 51 at 26–8 and the judgment of Underwood J of the Tasmanian Supreme Court in Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13. (2005) 11 VR 270 at [8]. See also the comments of Byrne J in Bentley v Brennan [2006] VSC 113 at [24]. Pontifical Society for the Propation of the Faith v Scales (1962) 107 CLR 9 at 19; Andrew v Andrew [2012] NSWCA 308 (Allsop P at [16]; Barrett JA at [95]). [2014] NSWCA 392; (2014) 87 NSWLR 646.

71. 72. 73. 74. 75. 76. 77. 78. 79.

80. 81.

82. 83.

84. 85.

86. 87. 88. 89. 90.

91. 92.

93. 94.

See the discussion in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 at [320]–[326] per Hallen J. Ibid at [325]. Quoting Andrew v Andrew [2012] NSWCA 308 at [35]. [2013] NSWSC 522; (2013) NSWLR 253 at [125]. [2000] 2 NZLR 479 at [44]. [2006] VSC 113 at [24]. Legislation in some jurisdictions specifically lists the factors. The most detailed is Victoria: s 91(A). See also NSW: s 60(2); ACT: s 8(2) and (3). [1966] VR 404. Goodman v Windeyer (1980) 144 CLR 490; Re Buckland [1966] VR 404. See, for example, Re Wood [1944] NZLR 567. Note, however, the comments of Bray CJ in Re Pope (1975) 11 SASR 571 at 574, to the effect that while social security payments were to be taken into account, this does not necessarily mean that a testator may leave the estate elsewhere on the basis that the state will provide for dependants. Goodman v Windeyer (1980) 144 CLR 490. Re Buckland [1966] VR 404. In that case, the applicant daughter had voluntarily assumed the obligation of providing for her mother. This was regarded as irrelevant by the court, but a contrast was made between this situation and the case where the applicant was providing for her own infant children. See, for example, Re Sinnot [1948] VLR 279 and Pontifical Society v Scales (1962) 107 CLR 9. See, for example, Hunter v Hunter (1987) 8 NSWLR 573; Gorton v Parks (1989) 17 NSWLR 1 at 11; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Blair v Blair (2004) 10 VR 69; Brinkotter v Pelling [2006] VSC 101; Horsburgh v White [2006] VSC 300. (1956) 95 CLR 494. In that case, however, the application was brought some 10 years after the death of the mother, the court deciding that the time to assess the application was the date of death of the testator. See further 11.12 below. Goodman v Windeyer (1980) 144 CLR 490 at 494 per Gibbs J. However, it has also been stated that awards cannot be made for ‘good conduct’: Blore v Lang (1960) 104 CLR 124 at 134. NSW: s 60(2); Vic: s 91A(2)(g); ACT: s 8(3)(c). See Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, discussed above. See Cooper v Dungan (1976) 50 ALJR 539. Substantial estrangement, for example, is often a factor which will preclude a successful application. See, for example, Burke v Burke [2015] NSWCA 195; Underwood (formerly Gaudron) v Gaudron [2015] NSWCA 269; Poletti v Jones [2015] NSWCA 107. (1956) 95 CLR 494. The approach was confirmed by the Privy Council in Dun v Dun [1959] AC 272, both in relation to testate and intestate succession. Re Brown [1952] St R Qd 47 at 51 per Townley J. Conversely, as stated, circumstances which could reasonably be foreseen at that time may be taken into account: White v Barron (1980) 144 CLR 431 at 445 per Mason J. An applicant who came into a sudden fortune before the hearing would probably thus not succeed: see, for example, the judgment of Mason J in White v Barron (1980) 144 CLR 431 at 441. (1956) 95 CLR 494.

95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124.

125.

126.

ACT: s 8(2). And note Vic: s 91A(2)(d). Qld: s 41(2)(c); SA: s 7(3); WA: s 6(3); Tas: s 8(1); NT: s 6(3). ACT: s 8(3)(a); Vic: s 91A(2)(k). On the Victorian provision see particularly Collicoat v McMillan [1999] 3 VR 803 at 818 per Ormiston J; Herszlikowicz v Czarny [2005] VSC 354; White v Muldoon [2006] VSC 204. NSW: s 60(2)(m). (1946) 46 SR (NSW) 318 (decided under the previous legislation in that state). See, for example, In Will of TM [1929] QWN 22 (adultery); Delacour v Waddington (1953) 89 CLR 117 (desertion); Re Kennedy [1920] VLR 513 (renunciation of marriage). See particularly de Groot and Nickel, Family Provision in Australia, 4th ed, LexisNexis Butterworths, 2012, at [2.37]. Ray v Moncrieff [1917] NZLR 234. Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR 9. (1979) 143 CLR 134. [2005] VSC 354. [2005] VSC 354 at [145]. See also Wheatley v Wheatley [2006] NSWCA 262. See, for example, Wenn v Howard [1967] VR 91. In Re Paulin [1950] VLR 462. See, for example, In Will of Gilbert (1946) SR (NSW) 318. See, for example, Re Hardgraves [1955] QSR 601. NSW: s 60(2). [1950] VLR 462 at 473. Re Johnston [1962] Tas SR 356; Re Clissold [1970] 2 NSWR 619; Re Mercer [1977] 1 NZLR 469 at 474. On the duties of executors in family provision claims, see particularly Vasiljev v Public Trustee [1974] 2 NSWLR 497; Warren v McNight (1996) 40 NSWLR 390. The statement of facts is clearly hearsay evidence and, accordingly, cannot be admitted to prove the truth of the matters alleged. See, for example, In Re Paulin [1950] VLR 462 at 473 per Scholl J; Re Buckland (No 2) [1967] VR 3. (1979) 143 CLR 134. (1979) 143 CLR 134 at 159. NSW: s 100(2). See also Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA) s 21A(2). The section is in identical terms to the New South Wales provision. Tas: s 8A; NT: s 22; ACT: s 22. Vic: s 94(c). ACT: Commonwealth Evidence Act 1996 has application. NSW: Evidence Act 1995; Vic: Evidence Act 2008 ss 60, 63; Tas: Evidence Act 2001. The legislation in New South Wales and Tasmania is virtually identical to the Evidence Act 1996 (Cth). See particularly the discussion in National Committee for Uniform Succession Laws: Family Provision: Supplementary Report, Qld Law Reform Commission Report No 58, July 2004, at [5.70]–[5.78]. Inheritance (Provision for Family and Dependants) Act 1975 (UK). For discussion of the anti-

127. 128. 129. 130.

131. 132. 133. 134. 135. 136. 137. 138.

139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150.

151. 152. 153. 154.

155. 156.

avoidance provisions, see particularly Mellows, Ch 15. See Re Keene (1967) 86 WN (Pt 1) (NSW) 317; affirmed Cope v Keene (1968) 118 CLR 1. Re Richardson [1920] SALR 24 at 40. (1998) 194 CLR 457. See also Wittman v Wittman [2006] QSC 142. Cook, ‘Setting Aside Pre-Death Dispositions’ [1999] Law Institute Journal 72. See also Hamilton, ‘The Doctrine of Unconscionable Bargains in Equity: Potent Sword for Estate Lawyers’ (2007) 27 Qld Lawyer 180. Qld: s 41(12). NSW: s 22. See 11.21 below. [1990] 3 NZLR 243. (1936) 55 CLR 440. See 2.15 above. For the New South Wales position, see 11.23 below. See, for example, Re McPhail [1971] VR 534. Re Jones; Noonan v Jones [1978] VR 272. (1977) 136 CLR 308 at 316. Note, however, Qld s 44(2), which protects the personal representative if the person has notified the personal representative in writing that he or she consents to a distribution. (1977) 136 CLR 308. But note the contrary position in Queensland: Re Burgess [1984] 2 Qd R 379; Re McPherson [1987] 2 Qd R 394. Compare with South Australia: Dawson v Fitch (2002) 84 SASR 20. (2003) 214 CLR 169. [1972] AC 572. [1941] AC 294. (2003) 196 ALR 65. In other words, the residue means residue after all claims have been made against the estate, including any family provision claims. NSW: s 75(1). Presumably, by failing to sever a joint tenancy. NSW: s 76(2). Kavalee v Burbidge; Hyland v Burbridge (1998) 43 NSWLR 422. NSW: s 80. Note also s 81, which concerns the situation where the disposee of a property transaction enters into a property transaction with a third person. In special circumstances, the court is able to trace the property into the hands of the third person. White v Barron (1980) 144 CLR 431; Goodman v Windeyer (1980) 144 CLR 490. NSW: s 8; Qld: s 42(1); WA: s 16; Tas: s 9(5), (5A); ACT: s 9A(3); SA: s 12; Vic: s 97(5); NT: s 17. NSW: s 9(5). See Young v Salkeld (1985) 4 NSWLR 375. In other jurisdictions, the preponderance of authority is that interim orders may not be made. See Re Breen [1933] VLR 455. Vic: s 97(2); Qld: s 41(3); SA: s 9(2); WA: s 2(4); Tas: s 10A; ACT: s 11(2); NT: s 11(2). In New South Wales, s 72 provides that the court may specify the beneficial entitlements in the estate that shall bear the burden of the provision. (1944) 69 CLR 69. (1944) 69 CLR 69 at 92. For the position in New South Wales see 11.29. It should be noted, however, that while void, the court will nevertheless take the contract into account in deciding

whether or not an order should or should not be made: Singer v Berghouse (1994) 181 CLR 201. 157. See, for example, In the Will of Gaynor (decd) [1960] VR 640; Re Chester (1978) 19 SASR 247; Jones v Public Trustee [2010] NSWSC 350. 158. (1944) 69 CLR 69. 159. (1944) 69 CLR 69.

[page 319]

Personal Representatives

12

Introduction 12.1 In preparing a will, a testator may nominate the persons who will carry out the terms of the will. Those nominated are called executors. In circumstances where the testator has left a valid will but not identified an executor, where the executor refuses to act in that capacity, or where the identified executor is disqualified from holding that office, the persons interested in the deceased estate may apply to the court for a grant of letters of administration with the will annexed. The recipient of such a grant is an administrator. If the deceased has died wholly intestate, again a person will be appointed as administrator of the estate. In such a case, the grant is known as general administration. ‘Personal representative’ is a generic term meaning either an executor or an administrator.

Appointment of executors Introduction 12.2 In the majority of cases there will be little difficulty with regard to the appointment of an executor, as the persons intended to assume the duties of executors will be clearly identified in the will. However, several issues arise with respect to the appointment of executors that should be considered.

Identification of the executor 12.3 To avoid uncertainty the testator should clearly identify the person who is to act as executor. A failure to do so will render the purported appointment void, leaving the court no option but to refuse a grant of probate and therefore only a grant of administration cum testamento annexo will be possible. Thus, appointments to ‘any two of my sons’1 [page 320] or to ‘one of my sisters’2 do not identify the intended executors with sufficient specificity, and will therefore be void for uncertainty. In In the Goods of Amiet3 the testator’s solicitor had recorded the testator’s instructions in brief note form, and these notes had been signed by the testator and attested by witnesses. A more complete will was not validly executed, and the issue was whether probate ought be granted to those persons recorded in the notes as the intended executors in the following words: Trees & Exors — Louis Kitz, of Geelong, watchmaker Robert McDonald, of Geelong, chemist

Probate was granted in this case, despite the fact that there were no operative words linking the names of the persons with the office of executor, although Molesworth J expressed some reservations as to whether he would have reached a similar finding in a different context. Similarly, in the preparation of codicils which appoint an executor, care must be taken to state clearly whether the newly appointed executor is in addition to, or as a replacement for, the original executor appointed in the preceding will.4

Testator’s delegation of appointment of executor 12.4

The testator may authorise a person such as an executor or legatee to

exercise a power of appointment with respect to the selection of an executor.5 The power to nominate an executor must be expressed in unambiguous terms, such expressions as ‘and they [the executors expressly appointed by the testator] may take a third person to help them’ being too vague to allow a grant of probate to the nominated person.6 This power may be either general or limited in character. If a general power, the donee of the power may validly appoint him or herself as executor.7 However, in this case it is critical that the power not be expressed such that some other person be appointed.8 A limited power will only allow the donee of the power to select from a restricted class. The testator may also allow an identified executor to appoint a coexecutor.9 In Jackson and Gill v Paulet10 the testator appointed two persons as executors and provided that an additional executor was to be [page 321] appointed ‘… as they [the executors], in conjunction with my beloved wife, shall duly appoint and conjoin by indorsement on these presents under their hands … as executors …’. The wife and the two executors could not agree upon the selection of a third executor. In this context, probate was granted to the two executors with the court reserving the power to grant probate to the third executor should the existing executors and the wife nominate one. The executor is also authorised by specific legislation to delegate the office of executor to the Public Trustee or identified trustee company.11

Ambiguity as to identity of executor 12.5 In some cases the testator may have completed a valid will without naming the executor, although it would appear from the face of the will that the testator had intended to do so. The principles as to the construction of wills as discussed in Chapter 8 are relevant in determining the extent to

which recourse to extrinsic evidence is admissible as an aid to identifying the intended executor. Thus the court will construe the will having regard to the circumstances of the testator at the time of making the will.12 However, in those cases where there is no indication whatsoever as to the identity of the intended executor, such as where the testator appoints ‘Mr—’, the court will not admit evidence as to the actual intention of the testator.13 Where there is a ‘latent ambiguity’, the court may admit evidence as to the testator’s intention. In Parsons v Parsons14 the nature of a latent ambiguity for present purposes was considered: Should both the name and the description used by a testator to designate the object of his bounty belong equally to two individuals, these are facts dehors the will, raising a latent ambiguity to resolve which parol evidence must be had recourse to …

Earlier in the judgment, the express naming of an executor in circumstances where the named person might be one of at least two people was given as an example of latent ambiguity. A more lenient approach to the meaning of ‘latent ambiguity’ appears to have been adopted in In the Estate of Hubbuck (decd),15 where a testatrix expressed her wish that her executrix be ‘my granddaughter—’. In that case, there were three granddaughters alive at the time of the making of the will and at the death of the testator. Despite the fact that the will did not contain the type of ambiguity apparently contemplated in Parsons v Parsons, it was held that this was a case of latent ambiguity justifying the admission of evidence of the testator’s intention. Stricter [page 322] applications of the latent ambiguity principle may be found in In the Goods of Baylis16 and In the Goods of Blackwell.17 As discussed in Chapter 8, legislative reform has occurred with respect to the admissibility of extrinsic

evidence in a number of jurisdictions.18

Appointment of an office-holder 12.6 The testator may appoint the holder of a particular office to be executor, in which case the holder of that office at the time of the testator’s death will generally be granted probate.19 However, where the testator appoints the holder ‘for the time being’ of a particular office, it would seem that the court must determine whether the intention of the testator was to appoint the person holding the particular office at the time of the testator’s death. Alternatively, the testator may have intended to appoint not only the office-holder at the time of death, but all of those who might subsequently succeed to the office, known as a shifting executorship. The weight of authority supports the proposition that the former will be held to be valid by a court. In In the Will of Were (decd),20 a testator appointed the manager ‘for the time being’ of a particular trustee company. Probate was not granted to the manager holding office at the time of the testator’s death on the basis that to do so would be contrary to the testator’s intentions, as the testator had in fact intended to appoint those holding the office of manager of the trustee company from time to time. Further, probate was not granted to future holders of the office, whoever they may be, as the court considered that such a shifting executorship would give rise to confusion among those relying upon the executor’s title, such as the testator’s creditors and purchasers of the deceased estate. The possibility of such confusion therefore dictated that the testator’s intentions not be followed. The facts of Re Bone21 and Re Anketell22 were similar to In the Will of Were (decd), except that the office-holder ‘for the time being’ appointed in each case was not the manager of a trustee company but rather the trustee of a settlement by the testator (Re Anketell) or the office-holder of an unincorporated association (Re Bone). In such circumstances the respective courts considered that the intention of the testator was to appoint the office-

holder at the time of the testator’s death, and so probate was granted in each case. Re Khan23 is anomalous in that the joint office-holders assuming the particular office after the testator’s death were appointed for the period that they continued to hold the office. From the report, it appears that [page 323] the court had no notice of the above-mentioned cases, but chose to give effect to the perceived intentions of the testator without considering the policy matters raised in In the Will of Were (decd). The most recent consideration of the matter is given in the judgment of Gray J of the South Australian Supreme Court in Re Estate of Chomiak24 where the testator appointed as executor the priest in charge for the time being of the Ukrainian Catholic Church at Wayville. The appointment was upheld, his Honour construing the phrase ‘for the time being’ as referring to the time of the testator’s death, and not the time of the date of the will. However, his Honour did point out that this is subject to an alternative interpretation of sufficient intention as shown in the will.

Appointment of partners in a partnership 12.7 As a partnership is not a separate legal entity, it is necessary for an appointment to be expressed in terms of an appointment of the partners of the firm. Where a testator specified that ‘Messrs Cockerell & Co, East India agents, London’ were to be among his executors and the partnership was dissolved prior to the testator’s death, the court held that, as there was no contrary intention, the appointment was to be read as at the date of the will. Accordingly, the appointment was interpreted as an appointment of the partners of the firm existing at the time the will was made, and so probate was granted to them.25

Difficulties may arise, however, where the testator expressly indicates that the executors are to be selected from the partners of the firm at the date of the testator’s death, and there has been an attempt to make provision for the possibility of the merger of the firm with another.26 The testatrix in In the Estate of Yearwood (decd)27 attempted to do just that by appointing the partners in a firm of solicitors at the time of her death ‘or the firm which at that date has succeeded to and carried on its practice’. Prior to the testatrix’s death, the identified firm was dissolved and the former three partners each established new firms, with no firm succeeding to the practice of the former firm. In such circumstances the court could not grant probate. Attempts to address the type of factual circumstances arising in In the Estate of Yearwood (decd) are fraught with the risk of being void, as the testator must not create a shifting executorship, while simultaneously being careful to identify the intended executors with sufficient certainty.28

Substitutional appointments 12.8 It has already been noted that an appointment of an executor will be void for uncertainty where the testator has merely stated that one of [page 324] a class is to be executor. However, a testator may state that a particular person is to be executor of the will, but provide for an alternative executor should the first-named executor (the executor instituted in the first degree) be unable or unwilling to act.29 There are two types of such substitutional appointments of executors, with differing consequences for the type of order granted by the court. The first category entails the testator providing for a substitute executor to act where the first-named executor is unable or unwilling to act before probate is granted. Thus, in In the Will and Codicil of Grant30 the testator

appointed an executrix and provided that ‘in the event of her death’ other persons were to be executors. In this case, it was held that, as the executrix had survived the testator, only she ought be granted probate without leave being reserved to the second-named persons (the executors instituted in the second degree), as the condition for their appointment as executors (that the executrix predecease the testator) had not been fulfilled. This approach was not adopted in the earlier case of In the Goods of Foster31 where a testator appointed his wife as sole executrix or, ‘in default of her’, his two nephews. The two nephews were granted probate after the death of the wife, notwithstanding that she also had obtained probate. In reaching his decision, Lord Penzance appeared to place considerable emphasis upon the court adopting a construction that gave effect to the perceived intention of the testator that the wife was to be executrix as long as she was able, and that the nephews were to assume office thereafter. Similarly, in In Goods of Soal (decd)32 the court appears to have adopted a more lenient approach to the interpretation of the testator’s substitutional appointment. The testator in that case had appointed his widow as sole trustee and executrix, providing that upon her death two named persons were to be executors and trustees of the will. The widow became mentally incapable after the death of the testator, and did not seek a grant of probate. In such circumstances, the court granted probate to the executors instituted in the second degree, apparently on the basis of counsel’s submission that if the testator had foreseen the circumstances which transpired after his death, he would have provided for the alternative executors to assume the office of executors. The second category of substitutional appointment arises where the testator provides that a person is to be executor but that, if that person instituted in the first degree ceases to be executor, a second-named person ought assume the office of executor. The facts of In the Will of Andrews33 provide an example of this type of provision. In that case, the testator appointed an executrix for her life or widowhood, but upon her death or

remarriage the testator’s son was to be executor. The court [page 325] accordingly granted probate to the executrix, reserving leave to the son to seek probate upon the cessation of her eligibility to hold office.

Limited appointments of executors 12.9 The testator may unqualifiedly appoint a person as executor, or impose conditions upon the appointment of the executor of the will. The limitations upon a particular appointment may relate to time, place, the happening of a contingency or the property for which the particular executor is to be responsible.34 (1) Limitations as to time. The testator may impose limitations as to the time at which a person may assume the office of executor or specify the maximum period for which the executor is to hold office.35 In granting probate the court will accede to these limitations by, for example, granting probate for a limited period or granting administration cum testamento annexo for the period in which the executor is disqualified from office. For example, In The Will of Wilson36 the testator provided that A was executor instituted in the first degree provided that A applied for probate within six months of the testator’s death, and failing compliance with this condition X was to be sole executor. A failed to apply for probate within the specified period and X renounced the office of executor. In response to A’s untimely application for probate the court refused the application as the terms of the will expressly precluded such a grant being made. However, the court noted that this was not to prejudice A’s right to apply for a grant of administration cum testament annexo.37 (2) Limitations as to property. The testator may also impose restrictions upon the extent of the estate for which a particular executor is to be responsible. Thus it is possible to appoint an executor to deal with specific property while also appointing a general executor.38 The case of In the Wills and Codicil of Clark39 supports the proposition that the testatrix may appoint different executors for different parts of her estate, provided that where all of the testatrix’s property is located in the one jurisdiction the testatrix must execute separate testamentary instruments dealing with the segments of her estate. Where there is just one testamentary instrument, it would appear that probate will only be granted to executor(s) responsible for the estate as a whole.40 (3) Conditional appointments. The testator is free to appoint an executor conditionally, the condition being either precedent or

[page 326] subsequent.41 The facts of In the Will of Wilson discussed above also provide an example of a condition precedent to the appointment of an executor. (4) Limitations as to place. A testator may also appoint different executors for the assets of the deceased estate in different geographical areas.42

Implied appointment of executor: executors according to the tenor 12.10 It is not necessary for probate to be granted that the testator specifically state that identified persons hold the office of executors, although obviously this is the preferable course for the removal of any doubt. In cases where the testator has only named persons without expressly appointing them as executors, probate will be granted to those named provided that the will makes it clear that they are to perform at least some of the duties of executors.43 Such executors are known as ‘executors according to the tenor’. Those duties will necessarily include collecting the assets, the payment of the debts and funeral expenses, and the discharge of the legacies contained in the will. A recent example is provided by the decision of Gray J of the South Australian Supreme Court in Tsagouris v Bellairs44 where there was no express appointment of an executor, but the testator nevertheless charged the plaintiffs with the authority to sell the main asset of the estate, and with the moneys, to establish an orphanage. It was held that these were typical tasks attributable to the office of the executor, and accordingly the plaintiffs were appointed executors according to the tenor. An early example is provided by the case of In the Will of Hollings45 where a testator bequeathed and devised all of his real and personal estate to two named individuals on the basis that they were to distribute the property according to the will. Probate was granted despite the fact that there was no reference in the will to the payment of debts, the provision of maintenance to the testator’s immediate family, a power of advancement or an appointment of executors.

This matter has also arisen in the context of ‘home-made’ or ‘informal’ wills, where it is more likely that the testator did not specifically use the terminology of ‘executor’. In a number of cases, wills have been admitted to probate, even though lacking formality, under the judicial dispensing power discussed above in Chapter 5: see particularly 5.12–5.29. Due to the informal nature of the will, the question has also arisen as to whether there has been a sufficient appointment of an executor. In In the Estate of Williams (decd),46 for example, where the unsigned will was admitted [page 327] under the judicial dispensing power, the question arose as to whether a grant of probate could be made to the testator’s sons. The will had appointed the sons ‘sole trustees’ and had made a number of gifts ‘after payment of debts, funeral and testamentary expenses’. The court held that the sons were executors according to the tenor, as it was intended that they carry out duties of an executorial nature (and not simply trustee duties), that is, the payment of debts, funeral and testamentary expenses. To similar effect is Re Trethewey.47 There an informal will was found on a computer file of the deceased and was admitted to probate under the dispensing power, although not signed in the normal sense, nor sufficiently witnessed. One aspect of the case concerned the appointment of an executor. The actual will, in its entirety as discovered in the computer file after the death of the testator, was as follows: In the event of my death my remaining wealth, including superannuation, leave and other workrelated entitlements, any savings and any outstanding debts, to me to be transferred to MB two thirds to be to be [sic] held in trust for my two children by M to be distributed to them when and as she sees fit, one-third to be retained by her. The amount of equity in 38 Henry Street to be handled in the said manner upon the decision of M and the children to sell the property.

It was held that as the applicant for probate MB clearly had executorial duties to perform, she had been impliedly appointed as executor of the will.

A person may be appointed as an executor according to the tenor, notwithstanding that other persons have been expressly appointed as executors,48 and probate may be granted notwithstanding that the duties of the named persons are only implicit in the will.49 Although it is not necessary for the testator to refer to all of the powers and duties of an executor in order to constitute an executor according to the tenor, the duties that are imposed must relate to all of the testator’s property.50 For this reason, it will be sufficient if a person is to pay the deceased’s debts.51 Similarly, where specified persons are to pay certain legacies without any mention of payment of debts, residue or the express appointment of executors, it was held that those persons were executors according to the tenor as the payment of legacies could only legally occur after the payment of the liabilities of the deceased. In In the Will of Darcy,52 the testator’s will dealt with all of the testator’s real and personal property, but the duties of the persons named by the testator were only to manage the testator’s real property. Accordingly, the court did not grant probate to the named persons as executors according to the tenor. Further, for a court to grant probate to an executor according to the tenor, the duties imposed upon the named person(s) must be exercisable immediately. Thus, where the testator directed that his debts be paid [page 328] and that the property was to pass to his widow for her life or until her remarriage, and then to the trustees of the testator’s settlement, it was held that this in itself was insufficient to constitute the trustees as executors according to the tenor. However, as the trustees were granted immediately exercisable powers to lease and to deal with the shares in the estate held by his children, the trustees were entitled to a grant of probate as executors according to the tenor.53

The fact that the testator has appointed a person as universal legatee does not, in itself, warrant the grant of probate on the basis that the person is an executor according to the tenor, as there must be some duty imposed upon the universal legatee before probate will be granted.54 Probate was therefore granted where a testator left his entire estate comprising his interest in a farm to his brother, as the will provided that the farm was to be ‘carried on and managed as heretofore’, the implication being that such management would entail the payment of the testator’s debts.55 As with universal legatees, the mere appointment of a trustee without more will not constitute that person an executor, it being necessary that the will either expressly or impliedly requires the trustee to carry out at least some obligations of executorship before probate will be granted to the trustee as an executor according to the tenor.56

Capacity to act as executor Inherent jurisdiction of the court: passing over the executor 12.11 Under the relevant legislation, the state Supreme Courts have jurisdiction to grant probate and deal with matters arising with respect to deceased estates.57 Inherent in this jurisdiction is the power of the courts to refuse to grant probate to an executor, notwithstanding the fact that such action would clearly be contrary to the testator’s expressed intentions.58 Apart from the circumstances specifically detailed immediately below, there have been numerous and diverse cases where passing over has occurred.59 However, it has constantly been stressed that the jurisdiction [page 329] to pass over is limited, and will only take place where the due and proper

administration of the estate and the interests of the parties beneficially entitled are jeopardised. Modern authorities have specifically referred to the judgment of Jeune P in In the Goods of Loveday60 as providing the principles, and have emphasised that only in exceptional circumstances will the jurisdiction be exercised. The right of the testator to have the appointment of an executor respected has been constantly re-affirmed.61 Re Jensen62 provides an example. There the testator’s son was appointed by will as the executor, and accordingly applied for probate. The application was opposed by the Public Trustee, who sought an order to administer the estate. The grounds of the application were that the son (and the deceased) had belonged to a religious organisation, the ‘Exclusive Brethren’, but the son had renounced those religious beliefs. Ambrose J declined the application by the Public Trustee, holding that was not a sufficient justification to disregard the faith and confidence which the testator had placed in his son to administer the estate. His Honour added that acceptance of the executor’s role would not be an easy one in the circumstances, given the potential opposition to his management of the estate, but that was not enough to displace the choice of the testator.

Minors 12.12 Where the appointed executors include a minor, probate will be granted to all but the minor.63 However, leave will be reserved to the minor to seek probate upon his or her attaining 18 years of age. Where a minor has been appointed sole executor, the relevant state and territory legislation generally provides that administration with the will annexed is to be granted to the child’s guardian or such other person as the court thinks fit until the time that the child reaches 18 years of age.64

Mentally or physically disabled persons 12.13 The courts may pass over an appointed executor where it is considered that the executor’s mental or physical incapacity is such that he or

she cannot reasonably be viewed as capable of fulfilling the functions of an executor.65 Where a sole executor is unable to act as executor, the court will grant administration with the will annexed et durante corporis aut animi vitio: see Chapter 13. Where a co-executor has become mentally [page 330] or physically incapable of acting as executor after probate has been granted, the court may cancel the original probate and grant probate to the remaining executor(s), allowing leave to the disabled executor to come in and prove should his or her capability to act as executor return.66

Persons with criminal records 12.14 The existence of a criminal record will not necessarily disqualify an executor from holding office,67 although it has been held that the incarceration of the executor is a ground upon which the court may exercise its discretion in passing over the executor.68 Nevertheless, it would be open to the prisoner to appoint an attorney to manage his or her affairs, so that the attorney could then seek a grant of administration for the term of the prisoner’s confinement. Similarily a person disqualified from taking benefit because of application of the forfeiture rule (discussed in Chapter 9 at 9.24) is disqualified from being granted probate.69

Corporations 12.15 As a company is considered incapable of taking the oath of due execution of office, companies are generally precluded from obtaining a grant of probate.70 Where a company has been appointed executor, a person authorised by the board of directors (known as a ‘syndic’) may seek a grant of administration with the will annexed.71 Only trustee companies registered under the trustee companies legislation are entitled to a grant of probate.72

Bankrupts and insolvent persons 12.16 The mere fact that a person is impecunious will not be sufficient for the court to pass over an executor.73 In particular where the testator has knowingly appointed a bankrupt there is an implication that the testator intended to appoint the bankrupt notwithstanding the bankruptcy, and so the court will grant probate to the executor.74 Where a sole executor has become bankrupt or insolvent without the knowledge of the testator, the court does not refuse to grant probate [page 331] to the executor.75 However, the court will appoint a receiver and, if necessary, require the executor to allow his or her name to be used in any proceedings with respect to the estate.76 If just one of a number of executors has become bankrupt or insolvent, the court has jurisdiction to grant an injunction restraining the bankrupt executor from acting as executor, but will not appoint a receiver.77

Assumption and renunciation of office Assumption of office by executors 12.17 In general, executors cannot be compelled to assume the responsibilities of office, but once they have accepted, they cannot renounce the office.78 Acceptance must be unconditional, and an executor cannot accept part and renounce part of his or her responsibilities. It would also appear that an agreement between the executor and the testator that the executor will accept the office of executor upon the testator’s death is unenforceable.79 If a person has accepted the office of executor, it is within the jurisdiction of the court to compel the executor to fulfil the obligations of the office80 or to pass over the executor for the reasons outlined in

12.11–12.16 of this chapter. An executor will have accepted the office when his or her conduct is such that the intention to accept the office is evident. Thus, actions that indicate an acceptance of the responsibilities of an executor, such as obtaining probate, discharging a debt81 or other conduct which would constitute the person an executor de son tort (see 12.18 below) if they were not an appointed executor,82 will be sufficient. However, mere acts of charity or necessity such as feeding the testator’s children83 or arranging the funeral of the deceased in the stated capacity ‘as executor’84 will not be sufficient to evidence an acceptance of office. In this context the obiter comments of the court in Holder v Holder85 would appear to have been lenient to the executor. In that case the executor had opened and operated an executorship account with a bank and undertaken some managerial responsibilities in relation to the estate on behalf of the testator, but the court accepted that the executor was still in a position to renounce the office. The basis of the comments appears to have been that the executor’s conduct was so slight as not to evidence an intention of accepting office. [page 332] To ascertain whether the executor intends to accept the office, the court may cite the executor to state whether the office will be accepted.86 A failure on the part of the nominated executor to respond to this process and also to take any steps to deal with the estate will constitute a renunciation of the executorship while entering an appearance to the citation will not, of itself, constitute an acceptance of the role of executor.87

Executor de son tort 12.18 An executor de son tort is a person who acts as if he or she has been appointed as an executor, although not appointed as such (either expressly or

by implication) and prior to a grant of probate. The term is also occasionally employed where an executor has been appointed but who improperly administers the estate also prior to probate. In either case, there is what is known as an intermeddling with the estate of the deceased, without the authority of the court. The intermeddler lacks legal title to the assets of the estate. As will be seen, this can have potential legal effect, particularly in respect to persons who deal with the intermeddler in good faith. As to the acts which constitute intermeddling, and thus make that person an executor de son tort, these are similar to the acts required for acceptance of the office of executor, discussed immediately above in 12.17. The distinction between acts of humanity, necessity and charity and actual executorial acts is also drawn here. However, if the acts are not of humanity, necessity or charity, then it appears from early law that only very slight acts were necessary to constitute an unauthorised dealing with the estate. However, there is a considerable degree of inconsistency in respect to the acts that have been held to amount to intermeddling. As one commentator has stated:88 Some of the older authorities have held very slight acts of intermeddling to be sufficient to make a person executor de son tort; whilst other cases have decided that acts which, at first glance appear to be a considerable interference, are not intermeddling. Taking a bedstead, or a dog, or a Bible belonging to the deceased were held to be sufficient intermeddling. One old authority held that milking the cows of the deceased was sufficient, but the same authority considered that directing the funeral and defraying the expenses thereof even out of the deceased’s effects was an act of charity and not sufficient to make the person doing so an executor de son tort. Many of these older authorities appear to be somewhat conflicting, and it is difficult to find a coherent principle running through them.

More recently, and as discussed in 12.17, a less strict view has been taken. For example, the Supreme Court of New South Wales has held that simply publishing an advertisement requiring creditors to send [page 333] particulars of their claims to the executor’s solicitor did not amount to

intermeddling (and so did not prevent renunciation).89 Similar decisions may be found in Holder v Holder90 and Mulray v Ogilvie91 where Needham J held that ‘the trend of the more modern cases is to take a more lenient view of acts of nominated executors’.92 These cases were concerned with renunciation, but the principles should also apply to intermeddlers. If the court should hold that there is an executor de son tort, then that person is liable to account for any property received or any loss arising in respect of the deceased estate, to the extent of the property actually dealt with. The executor de son tort is thus not liable on the basis of wilful default, but only to the extent of the property, as such an executor is under no duty to collect the deceased’s assets.93 Those who have taken title from the executor de son tort receive good title provided that the acquisition could lawfully be performed by an executor94 and also that the transferee believed that they were dealing with a lawfully appointed executor.95 Some commentators have expressed reservations as to whether an executor de son tort ought to be recognised in those jurisdictions where the grant of probate or administration is registered on a public register and therefore ascertainable by due enquiry. Thus in New South Wales, Hutley argued that by retrospectively conferring title to real property upon the executor or administrator from the date of death, the grant of probate or administration was ascertainable by due enquiry by any taker of real property from a person purporting to act as an executor. As such, the recognition of an executor de son tort was an anomaly in the context of the land and probate registration system applicable in New South Wales.96

Transmission of executor’s office: chain of representation 12.19 This deals with the situation where an executor (either sole or sole surviving) has obtained a grant of probate but dies before the completion of administration. As explained by Young J in Darrington v Caldbeck,97 the office of executor is transferred to the executor’s executor, who then has the task of completing the administration. To take a simple example, suppose that

Alice is the executor of Emily, Emily having died and Alice [page 334] having taken out probate. Prior to completion of administration Alice herself dies leaving a will appointing Jane her executor. Jane takes out a grant of probate of Alice’s will. By virtue of the chain of representation, Jane not only becomes Alice’s executor but also the executor of Emily. This procedure can thus occur indefinitely, and importantly, it occurs automatically, no further formality being required. As long as each succeeding executor dies leaving a valid will, and probate is granted to the executor of that will, then the chain will continue.98 Again, and importantly, the executor by representation is in the same position as the original, deceased executor with all the same duties, rights and liabilities.99 This chain of representation may be broken in general by the following circumstances: (a) an intestacy; (b) in the event of a testator making a will, but failing to appoint an executor; or (c) the failure of a person appointed as executor to obtain probate of the will.

If the chain of representation is broken, an administrator of the unadministered estate under the original grant will generally be appointed.100

Renunciation of office by executor 12.20 In general, a person who is appointed as an executor is under no obligation to act as an executor and may renounce the right to the executorship. As pointed out in 12.17 above, this right is generally lost once there has been acceptance of the office. This will normally also occur where there has been intermeddling in an estate.101 The probate legislation provides that a valid renunciation, which has been lodged and not retracted, has the effect of terminating the right to apply for a

grant of probate.102 The renunciation is only binding when lodged and recorded in the relevant court.103 A renunciation lodged at a court in a foreign jurisdiction will not be binding in a local court.104 [page 335] Notwithstanding the apparent finality arising from the lodgment of a renunciation at the appropriate court, the courts have allowed renunciations to be retracted where such a retraction would be to the benefit of the estate and would not disadvantage those interested in the estate.105

Administrators Appointment of administrators 12.21 A court will appoint an administrator where the deceased has left a will but has not appointed an executor, or where the executor is unable (whether because of physical or mental disability or an unsatisfied condition with respect to the executor’s entitlement to assume office) or unwilling to act. In such circumstances the court grants administration with the will annexed (cum testamento annexo). Where the deceased has died wholly intestate, the court will grant general administration.

Jurisdiction of the court 12.22 The courts have been invested with a broad power to grant administration to the person who is considered fit to assume the responsibilities of the role.106 Prior to the enactment of such provisions, the courts generally applied the rule that the grant ought to follow the interest.107 There has been little modification to this practice since the apparent statutory expansion of the courts’ powers in this area. Thus the courts give considerable weight to the principle that the grant follows the interest while accepting that

the court has broad powers with respect to the selection of an administrator.108 The meaning of the grant following the interest is that administration will be granted to the persons most interested in the efficient and speedy administration of the estate. In the case of administration with the will annexed, this will generally mean the residuary beneficiaries, pecuniary legatees and other specific beneficiaries. In the case of general administration, the interest is determined by entitlement under the intestacy rules, discussed above in Chapter 10. [page 336] For similar reasons to those considered above with respect to the grant of probate, the court will not appoint an administrator who is mentally or physically incapable of fulfilling the obligations of the appointment, or an infant, or a company which is not a trustee company, or a bankrupt. Further, the court may have regard to the past conduct of the applicant with respect to the deceased’s property in determining whether to grant administration.109

Grants of administration with the will annexed 12.23 Where there is a will but no executor or no executor willing and able to act, the court will grant letters of administration with the will annexed (also known as a grant cum testamento annexo). The administrator must distribute the estate in accordance with the will. The above principles in respect to the grant following the interest apply.

Grant of general administration 12.24 Where the deceased dies wholly intestate, the court will generally grant administration to that person with the greatest interest in the deceased estate. Under English law prior to the introduction of the Administration of Estates Act 1925, the court could grant administration to the deceased’s

‘nearest and most lawful friends’ and next of kin.110 With the exception of Victoria, all jurisdictions in Australia now set out the order of priority for entitlement to letters of administration on intestacy. In these jurisdictions the ranking is generally consistent with the manner of distribution under the intestacy rules. It is contained in either legislation or rules.111 While there is variation in the schemes, reflecting some minor differences in respect to the intestacy rules in each jurisdiction, r 610 of the Queensland Uniform Civil Procedure Rules 1999 is fairly typical, and is set out below: 610 Priority for letters of administration (1) The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows — (a) the deceased’s surviving spouse; (b) the deceased’s children; (c) the deceased’s grandchildren or great-grandchildren; (d) the deceased’s parent or parents; (e) the deceased’s brothers and sisters; (f) the children of deceased brothers and sisters of the deceased; (g) the deceased’s grandparent or grandparents; (h) the deceased’s uncles and aunts; (i) the deceased’s first cousin; (j) anyone else the court may appoint. [page 337] (2) A person who represents a person mentioned in a paragraph of subrule (1) has the same priority as the person represented. (3) The court may grant letters of administration to any person, in priority to any person mentioned in subrule (1). (4) Also, if there is more than 1 surviving spouse, the court may make a grant to 1 or more of them, or to a person lower in the order of priority. (5) Each applicant must establish priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation. (6) A document providing evidence for subrule (5) must be an exhibit to the application. (7) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority but the existence or nonexistence and beneficial interest of any spouse or a person claiming to be a spouse must be sworn.

In general, therefore, the spouse has the greatest entitlement followed by next of kin and then by others in the absence of the former. It should be noted, however, that the spouse’s right is not absolute. Thus, where the best interests of the estate would be served by a grant of administration to someone other than the spouse of the deceased, the court will make such an order without requiring the consent of the spouse. In Re D’Kugodondho’s Goods112 the deceased had died intestate, leaving a wife in Turkey and a brother in Queensland. The brother sought a grant of administration on the grounds that there was a buyer prepared to purchase the deceased’s business for an attractive price if there was no delay, and that it was most unlikely that a similar offer would arise in the foreseeable future. It was therefore submitted that the delay associated with contacting the widow would not be in the interests of the estate. Accordingly, the court granted administration to the brother.

Grants of administration to strangers 12.25 Although the abovementioned rules generally govern the priority of applicants for grants of administration, the court may nevertheless grant administration to a stranger to the estate where there is a concern that an appointment of a person with a greater right would jeopardise the estate, or where the circumstances of the case indicate that such a grant is appropriate. Thus in Re Swale113 the testator appointed one Tonkin her executor and left her estate to various charities. Tonkin died before the testator and the testator was aware of this. She failed to change her will, believing mistakenly that the executors of Tonkin would undertake the task of becoming her own executor. Tonkin’s executor (his son) had actually promised that he would look after her will. Administration with the will annexed was granted to the son, the court being unable to identify anyone with a superior interest. Another example is provided by the case of In Estate of Smith114 where the person entitled to an entire

[page 338] estate under an intestacy was mentally incapable of assuming the office of administrator, and so administration was granted to a trustee company. A creditor is entitled to be appointed as administrator, although this entitlement generally must defer to the higher entitlement of the surviving spouse or next of kin unless the deceased estate is insolvent.115 It should be noted that the Public Trustee in each jurisdiction is also entitled to seek a grant of administration under the public trustee legislation.116

Retirement and removal of personal representatives 12.26 The probate legislation in all jurisdictions generally provides that the courts may remove a personal representative at their discretion by the process of revocation of the original grant.117 Even in the absence of such legislative provisions, it is within the inherent jurisdiction of the court to exercise its discretion to remove personal representatives from office.118 The principles relating to the removal of personal representatives are generally the same as those for revocation of a grant, and these are discussed below in Chapter 13: see particularly 13.17–13.18. The obvious cases are where the grant was improperly made, for example because the deceased was in fact alive,119 or where the grant was made to the wrong person, for example because a later will was discovered after the original grant of representation was made.120 Fundamentally, however, the court is also given power of removal in situations where the personal representative is incapable or unwilling to act in the interests of the estate. The following extract from the judgment of Asprey JA in Bates v Messner121 is instructive: [T]he essential basis of the exercise of the court’s inherent jurisdiction to revoke a grant of

probate is that emphasised by Jeune P, namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties [page 339] beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstance which have given rise to the exercise of the jurisdiction of revocation, such as ‘abortive’, ‘inefficient’, ‘useless’ or ‘ineffectual’, are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicted on the oath of the executor named in the will that ‘he will pay all the just debts and legacies of the said deceased so that he will otherwise and faithfully administer the said estate according to law; and that he will render a just and true account of his administration’ has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court’s jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion to that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.122

As that judgment makes clear, the circumstances are numerous but applications for removal were successful in Monty Financial Services Ltd v Delmo,123 where a conflict of interest and duty was found, Mavrideros v Mack,124 where there was delay and action taken without authority and Porteous v Rinehart,125 again a case of conflict of interest and duty. In all cases the respective courts emphasised that a testator’s selection of executor should not be lightly set aside, and removal requires a serious dereliction of duty, either through intent, carelessness or incompetence. More recently, the Queensland Supreme Court, in Williams v Williams126 exercised its jurisdiction to remove executors in circumstances where there had been unauthorised and undisclosed withdrawal of funds to comply with the court’s directions. There were also potential conflicts of duty and interest. Reference should also be made to the decision in Dimos v Skaftouros127 where the

Victorian Court of Appeal gave extensive consideration to the Victorian provision128 and particularly the term ‘unfit to act’ as used in the section. The court rejected a contention that the meaning of the term was limited to cases of disqualification, [page 340] conviction for felony or closely related circumstances. Rather, the meaning of the term (which served the purpose of promoting the welfare of the beneficiaries and protecting their interests) extended to circumstances including breach and neglect of duty in the administration of the estate including matters such as unwarranted delay, failure to account, failure to communicate with the beneficiaries, and conflict of interest and duty. The court reiterated, however, that the discretionary power was not to be exercised lightly.129 This decision was followed more recently Czapp v Casser and Caldwell130 a case involving serious breaches of executional duties including unwarranted delay in administration of the estate, failure to communicate with beneficiaries and failure to account. As a final matter, there has been a recent dispute as to whether an executor or administer may be removed without the necessity for revocation of the grant. The traditional view, and one particularly endorsed by the courts in New South Wales, is that revocation of the grant is necessary in all cases, coupled with an order making a fresh grant.131 These decisions were endorsed by Linsday J in Riccardi v Riccardi,132 Estate of Kouvakas133 and Estate of Cole v Paisley.134 The matter came before the Supreme Court of South Australia in Mullins-Tronsyske v Adams135 where Gray J declined to follow those New South Wales authorities. There, the beneficiaries of a deceased estate alleged that one of the three executors was responsible for negligent taxation advice in respect of the administration of the estate. It was held that it was appropriate to make an order for the executor’s removal, but

it was also held that the court’s inherent jurisdiction over probate matters is sufficiently broad to allow the removal of an executor without revoking a grant of probate. His Honour stated: The essential subject matter is the proper administration of the estate. The revocation of a grant of probate is one of the orders the court may make to facilitate the proper administration of an estate. The reason that the revocation of a grant of probate is synonymous with the removal of an executor in many of the decided cases is that there was no meaningful alternative order available to the court. It is to be noted in this regard that a court should only revoke a grant of probate where there is no other appropriate remedy.136

Nevertheless, it has been suggested that the removal without revocation of the grant should be restricted to cases involving one or multiple executors.137

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11.

12. 13. 14. 15. 16. 17. 18. 19. 20.

In the Goods of Baylis (1865) LR 1 P&D 21. In the Goods of Blackwell [1877] 2 PD 72. (1864) 1 WW & A’B (I E & M) 65. Grant v Leslie (1819) 3 Phillim 116; 161 ER 1274. In the Goods of William Cringan (1828) 1 Hagg Ecc 546; 162 ER 673; Re Mercer [1964] QWN 26. In the Will of Rose (1907) 7 SR NSW 201; In the Will of Ryan (1900) 17 WN (NSW) 45. In the Goods of Ryder (1861) 2 Sw & Tr 126; 164 ER 941. Re Sampson [1906] 1 Ch 435. In the Goods of Deichmann (1842) 3 Curt 123; 163 ER 676. (1851) 2 Rob Eccl 344. Trustee Act 1985 (ACT) s 13(1)(b); Trustee and Guardian Act 2009 (NSW) s 11(1)(b); Public Trustee Act 1979 (NT) s 32(1)(a), (b); Public Trustee Act 1978 (Qld) s 27(1); Public Trustee Act 1995 (SA) s 14(1); Public Trustee Act 1930 (Tas) s 12(1); Public Trustee Act 1941 (WA) s 7(1). Trustee Companies Act 1947 (ACT) s 4; Trustee Companies Act 1964 (NSW) s 4; Companies (Trustees and Personal Representatives) Act 1981 (NT) s 14(1); Trustee Companies Act 1968 (Qld) s 5(1); Trustee Companies Act 1988 (SA) s 4; Trustee Companies Act 1953 (Tas) s 5; Trustee Companies Act 1984 (Vic) s 9; Trustee Companies Act 1987 (WA) s 9. See 8.24. Re Chappel [1864] P 98. 1 Ves Jun 266; 34 ER 714. [1905] P 129; 74 LJP 58. (1862) 2 Sw & Tr 613; 164 ER 1135. (1877) 2 PD 72. Wills Act 1997 s 36; ACT: s 12A; Tas: s 43. Re Jones (1927) 43 TLR 324; Re Laffan and Downes’ Contract [1897] 1 IR 469. (1886) 12 VLR 271.

21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

(1895) 1 ALR 132. (1888) 14 VLR 111. [1947] QWN 26. (2012) 112 SASR 245. In the Goods of Fernie (1849) 6 Notes of Cas 657. Re Horgan [1971] P 50. (1982) 30 SASR 169. In the English context, see particularly the difficulties identified in the decision of Re Rogers (decd) [2006] 2 All ER 792. Smith v Crofts (1758) 2 Lee 557; 161 ER 439. (1896) 18 ALT 6. (1871) LR 2 P&D 304. (1892) 25 SALR 12. (1885) 11 VLR 116. For general discussion, see In the Estate of Kavanagh (decd) (1977) 16 SASR 342 at 345 per Jacobs J and Re Estate of Ferrall (decd) (2011) 111 SASR 79 per Gray J. In Will of M’Laughlin (1885) 7 ALT 34. (1945) 45 SR (NSW) 342. See also In the Goods of Wilmot (1834) 1 Curt 1; 163 ER 1. Lynch v Bellew and Fallon (1820) 3 Phillim 424; 161 ER 1372. (1903) 4 SR (NSW) 248. In the Will of Davies (1879) 5 VLR 93. Re Langford (1867) LR P & D 458; In the Goods of Day (1850) 7 Notes of Cas 553. Spratt v Harris (1833) 4 Hagg Ecc 405; 162 ER 1494. In the Goods of Manly (1862) 3 Sw & Tr 56; 164 ER 1193; In the Goods of Fry (1827) 1 Hagg Ecc 80; 162 ER 514; In the Estate of Williams (1984) 36 SASR 423 at 435, 437. (2010) 5 ASTLR 403. See also Tsargouris v Bellairs (2010) 5 ASTLR 403 at [31] per Gray J. (1878) 4 VLR (IP & M) 46. (1984) 36 SASR 423. (2002) 4 VR 406. See also Estate of Wilden (decd) [2015] SASC 9 (Gray J). Grant v Leslie (1819) 3 Phillim 116; 161 ER 1274; Re Wright (1908) 25 TLR 15. In the Will of Hooper (1908) 25 WN (NSW) 147. In the Will of Brown (1878) 4 VLR (IP & M) 47. In the Goods of Punchard (1872) LR 2 P & D 369; In the Estate of Mackenzie [1909] P 305; In Estate of Williams (decd) (1984) 36 SASR 423, discussed above. (1885) 11 VLR 339. In the Will of Pallett (1878) 4 VLR (IP & M) 33. In the Will of Clark (1876) 2 VLR (IP & M) 16; Re Geddes [1902] QWN 70. Ramsay’s Will (1886) 2 WN (NSW) 66. In the Will of Fowler (1906) 23 WN (NSW) 134; In the Will of Martin (1909) 9 SR (NSW) 576; In Estate of Williams (decd) (1984) 36 SASR 423, discussed above. Probate and Administration Act 1898 (NSW); Administration and Probate Act 1958 (Vic); Succession Act 1981 (Qld); Administration and Probate Act 1919 (SA); Administration Act 1903

58. 59.

60.

61. 62. 63. 64.

65. 66. 67. 68. 69. 70. 71. 72.

73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

(WA); Administration and Probate Act 1935 (Tas); Administration and Probate Act 1929 (ACT); Administration and Probate Act (NT). See also the discussion as to the jurisdiction in Estate of Shephard (1982) 29 SASR 247 (Legoe J) and (1982) 30 SASR 1 (Full Court). Re Leguia’s Estate; Ex parte Ashworth [1934] P 80; Re Old Colonists Association of Victoria (unreported, SC(Vic), Nathan J, 30 August 1991). The executor having killed the testator (Estate of Crippen [1911] P 108) is the most striking example. For a detailed list see Re Estate of Crane (2005) 93 SASR 198 at 204. In that case the application was successful. Apart from circumstances specifically mentioned in 12.12–12.16, a common exercise of the jurisdiction is where the executor is absent from the jurisdiction. [1900] P 154 at 156. The case concerned a revocation of a grant, as to which see Chapter 13 below: 13.17–13.18, but has been also considered relevant to passing over proceedings: see Bowler v Bowler (unreported, SC(NSW), 7 June 1990, Young J). See, for example, Re Jensen [1998] 2 Qd R 374; Porteous v Rinehart (1998) 19 WAR 495. [1998] 2 Qd R 374. Pigot v Gascoin (1616) 1 Brownl 46; 123 ER 655. See, for example, Administration and Probate Act 1958 (Vic) s 26; Administration Act 1903 (WA) s 33; Probate and Administration Act 1898 (NSW) s 70; Administration and Probate Act 1935 (Tas) s 23; Succession Act 1981 (Qld) s 6(3); Administration and Probate Act 1929 (ACT) s 21; Administration and Probate Act (NT) s 30; Rules of the Supreme Court (Administration and Probate Act) 1984 (SA) r 40. Re Newcomb [1934] QWN 45. In the Estate of Shaw [1905] P 92. Smethurst v Tomlin and Bankes (1861) 2 Sw & Tr 143 at 147. In the Estate of Drawmer (1913) 108 LT 732; In the Estate of S [1968] P 302. Re Estate of Luxton (2006) 96 SASR 218. In the Will of Docker (1976) 27 FLR 345; In the Goods of Darke (1859) 1 Sw & Tr 516; 164 ER 839. In the Estate of Rankine [1918] P 134; Re Mercer [1964] QWN 26. See, for example, Trustee Companies Act 1958 (Vic) s 4; Trustee Companies Act 1964 (NSW) s 4; Trustee Companies Act 1968 (Qld) s 5; Trustee Companies Act 1988 (SA) s 4; Trustee Companies Act 1947 (ACT) s 4; Trustee Companies Act 1953 (Tas) s 5; Companies (Trustees and Personal Representatives) Act 1981 (NT) s 14; Trustee Companies Act 1987 (WA) s 9. Of course, the Public Trustee in each jurisdiction is also entitled. Hathornthwaite v Russell (1740) 2 Atk 127; 26 ER 480. Stainton v The Carron Co (1854) 18 Beav 146 at 161; 52 ER 58 at 63–4; Langley v Hawk (1820) 5 Madd 46; 56 ER 812. Hills v Mills (1691) 1 Salk 36; 91 ER 37. Utterson v Mair (1793) 2 Ves Jun 95; Re Hopkins; Dowd v Hawtin (1881) 19 Ch D 61. Bowen v Phillips [1897] 1 Ch 174. Rogers v Frank (1827) 1 Y & J 409; In Will of Colless (1941) 41 SR (NSW) 133. Doyle v Blake (1804) 2 Sch & Lef 231 at 239. Mordaunt v Clarke (1868) LR 1 P & D 592. Pytt v Fendall (1754) 1 Lee 553; 161 ER 204. Long and Feaver v Symes and Hannam (1832) 3 Hag Ecc 771; 162 ER 1339.

83. 84. 85. 86.

87. 88. 89. 90. 91. 92. 93. 94. 95.

96.

97. 98.

99. 100. 101.

102.

103. 104. 105.

106.

Long and Feaver v Symes and Hannam (1832) 3 Hag Ecc 771; 162 ER 1339. Mulray v Ogilvie (1987) 9 NSWLR 1. [1968] Ch 353 at 392 per Harman LJ; 397 per Danckwerts LJ; 401 per Sachs LJ. Administration and Probate Act 1958 (Vic) s 16; Administration Act 1903 (WA) s 32; Succession Act 1981 (Qld) s 46; Probate and Administration Act 1898 (NSW) s 69; Administration and Probate Act 1935 (Tas) s 8; Administration and Probate Act 1919 (SA) s 36; Administration and Probate Act 1929 (ACT) s 20; Administration and Probate Act (NT) s 28. In the Estate of Shephard (1982) 29 SASR 247. Weir, ‘Intermeddling by an Executor and Renunciation’ (1935) 8 ALJ 187 at 188. In Will of Colless (1941) 41 SR (NSW) 133. [1968] 1 Ch 353; see particularly Dankwerts J at 397. (1987) 9 NSWLR 1. (1987) 9 NSWLR 1 at 6. See also Howling v Kristofferson (unreported, SC(NSW), Cohen J, 14 October 1992). See Certoma at pp 254–6. Buckley v Barber (1851) 6 Exch 164; 155 ER 498. See also Administration and Probate Act 1929 (ACT) s 74A; Succession Act 1981 (Qld) s 54; Administration and Probate Act 1935 (Tas) s 26; Administration and Probate Act 1958 (Vic) s 33.Thomson v Harding (1853) 2 E & B 630; 118 ER 904; Mountford v Gibson (1804) 4 East 441; 102 ER 900. Hutley, ‘The Executor De Son Tort in the Law of New South Wales’ (1952) 25 ALJ 716. However, for the contrary view with respect to real property see Ex parte Public Trustee; Re Birch (1951) 51 SR (NSW) 345; Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57. (1990) 20 NSWLR 212 at 217. It is given statutory force in some, but not all jurisdictions: Administration and Probate Act 1958 (Vic) s 17; Succession Act 1981 (Qld) s 47; Administration and Probate Act 1935 (Tas) s 10; Administration and Probate Act (ACT) s 43A; Imperial Acts Application Act 1969 (NSW) s 13. Joliffe v Fera [1973] 2 NSWLR 702 at 703 (Holland J). In Goods of Martin (1862) 3 SW & Tr 1; 164 ER 1171. The grant is de bonis non: see 13.5 below. But cf the unusual circumstances in In Will of Lyndon [1960] VR 112. In Queensland, specific provisions exist whereby executors may renounce their executorship notwithstanding any intermeddling with the estate on their part: Succession Act 1981 s 54(2). Probate and Administration Act 1898 (NSW) s 69; Administration and Probate Act 1958 (Vic) s 16(1); Succession Act 1981 (Qld) s 46; Administration and Probate Act 1919 (SA) s 36; Administration Act 1903 (WA) s 32; Administration and Probate Act 1935 (Tas) s 8; Administration and Probate Act 1929 (ACT) s 20; Administration and Probate Act (NT) s 28. Re Morant (1874) LR 3 P & D 151. In Will and Codicils of Levey (1884) 6 ALT 117; In Will of Wherrett (1883) 9 VLR (IP & M) 25. Re Lawrence [1982] VR 826; In Will of Boardman (1879) 5 VLR (IP & M) 70; Re Ahern [1951] QWN 32; Re Thurston [2001] NSWSC 144. The principle is given statutory force in Victoria (Administration and Probate Act 1958 s 16(2)) and Tasmania: Administration and Probate Act 1935 s 9. Probate and Administration Act 1898 (NSW) ss 33, 74; Supreme Court Act 1958 (Vic) s 17;

107. 108. 109. 110. 111.

112. 113. 114. 115. 116.

117.

118.

119. 120. 121. 122.

123. 124. 125. 126. 127. 128. 129. 130.

Succession Act 1981 (Qld) s 6; Administration and Probate Act 1919 (SA) s 5; Administration Act 1903 (WA) ss 6, 36; Administration and Probate Act 1935 (Tas) ss 13, 15; Administration and Probate Act 1929 (ACT) ss 12, 24; Administration and Probate Act (NT) ss 14, 33. In the Goods of Gill (1828) 1 Hagg 342. Bath v British & Malayan Trustees Ltd (1969) 90 WN (NSW) 44; Re Hoarey [1906] VLR 437; In Estate of Johnston (1898) 9 BC (NSW) 13. In the Goods of Peebles; Hall v Nelson (1871) 2 VR (IE & M) 52. Administration Upon Intestacy (1357) 31 Edw III St 1 c II; see also (1529) 21 Hen 8 c 5 s 2. Probate and Administration Act 1898 (NSW) s 63; Uniform Civil Procedure Rules 1999 (Qld) r 610; Probate Rules 2004 (SA) r 31; Administration Act 1903 (WA) ss 24, 25; Administration and Probate Act 1935 (Tas) s 13; Probate Rules 1936 (Tas) r 22; Administration and Probate Act 1929 (ACT) s 12; Administration and Probate Act (NT) s 22. (1896) 7 QLJ 44a. [1940] SASR 391. Note that the chain of representation did not apply in this case. [1972] 2 SASR 477. Re Ferguson (1896) 2 ALR 155. NSW Trustee and Guardian Act 2009 (NSW) s 23; State Trustees State Owned Company Act 1994 (Vic) s 5; Public Trustee Act 1978 (Qld) s 29; Public Trustee Act 1995 (SA) s 9; Public Trustee Act 1941 (WA) s 10; Public Trustee Act 1930 (Tas) s 17; Administration and Probate Act 1929 (ACT) s 88; Public Trustee Act (NT) s 34. Probate and Administration Act 1898 (NSW) s 66; Administration and Probate Act 1958 (Vic) s 34; Succession Act 1981 (Qld) s 6; Administration and Probate Act 1919 (SA) s 5; Administration Act 1903 (WA) s 29; Administration and Probate Act 1929 (ACT) s 32; Administration and Probate Act (NT) s 41. See generally, Young, ‘The Defaulting Executor’ [2014] 88 ALJ 869. In Goods of Loveday [1900] P 154. In Estate of Hardy [1967] 1 NSWLR 638; Phetan v Booth (1941) 43 WAR 60; Monty Financial Services v Delmo [1996] 1 VR 65; Porteous v Rinehart (1998) 19 WAR 495. In Goods of Napier [1809] 1 Phill 83; 161 ER 921. Re Gillard [1949] VLR 378; Re Olsen [1953] VLR 77. (1967) 67 SR (NSW) 187 at 191–2. See also the judgment of Lindsay J of the Equity Division of the New South Wales Supreme Court in Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786. That judgment contains a detailed and scholarly historical survey of the distinction between grants in common form and grants in solemn form and the interaction of principles governing revocation of grants. [1996] 1 VR 65. (1998) 45 NSWLR 80. (1998) 19 WAR 495. [2005] 1 Qd R 105. This decision was approved by the Queensland Court of Appeal in Baldwin and Neale v Greenlands [2006] QCA 293. (2004) 9 VR 584. Administration and Probate Act 1958 (Vic) s 34(1). See Groves, ‘The Forced Removal of Executors’ [2007] LIJ 56. [2015] VSC III (Hargrave J).

131. Morgan v MacRae [2001] NSWSC 1017 (Young CJ in Eq). But see McKerracher v McKerracher [2011] NSWSC 1288. 132. [2013] NSWSC 1288. 133. [2014] NSWSC 786. 134. [2016] NSWSC 349. 135. (2014) 121 SASR 155. 136. Ibid at [30]. 137. Raphael, ‘Can an Executor or Administrator be Removed Without the Necessity for Revocation of Grant?’ (2014) 88 ALJ 796.

[page 341]

Grants of Representation

13

Introduction Grants of representation and the vesting of property 13.1 Australian property law is premised upon the principle that there cannot be a lapse in the chain of ownership of property. The common law therefore developed principles regarding the devolution of property upon the death of an owner. These principles held that an executor’s title to the assets of the deceased derived from the will.1 The personalty of the deceased vested in the executor at the time of death, while realty vested in the devisee or heir at the time of death.2 By contrast, an administrator’s title to the deceased’s assets only derived from the grant of letters of administration. As a result, the assets did not vest in the administrator until the grant of administration.3 These rules governing the vesting of the deceased’s assets meant that the executor could validly deal with the assets before a grant of probate, provided that there was no need to prove title. By contrast, an administrator was generally unable to deal with the deceased’s estate prior to a grant of administration.4 Any intermeddling with the property of a deceased estate by persons other than executors may render them liable for any loss to the estate as an executor de son tort: see 12.18. The general position at common law was stated by Lord Parker in Meyappa Chetty v Supramanian Chetty:

It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of an executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends upon probate, but because the production of probate is the only way which, by the rules of the court, he is allowed to prove his title. [page 342] An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant.5

However, under the common law doctrine of ‘relation back’ the administrator’s title was recognised as relating back to the date of the deceased’s death. This doctrine was relevant, for example: (a) where the administrator brought an action in his or her representative capacity against a party who had wrongfully dealt with the deceased’s goods in the period between the deceased’s death and the grant of administration;6 and (b) to validate dispositions of the deceased’s property made prior to the grant of administration, provided that those dispositions have been beneficial to the estate.7

Nevertheless, there were limitations upon the usefulness of the doctrine of relation back, as it would not operate to bring an asset back into existence,8 to overturn the title of those who had validly acquired title from the intermeddler, or to validate an action brought by the personal representative that was void at the outset. The common law position has been varied by legislation in all jurisdictions in various ways. First, the legislation contains provisions assimilating the treatment of the deceased’s real and personal estate, so that both vest in the personal representative and the same duties in respect to both the real and personal estate are imposed.9 Second, in most jurisdictions, all property (both real and personal) of the intestate’s estate vests in the Public Trustee (or equivalent) upon death until representation is granted.10 Third, in Queensland, all property of the deceased vests in the executor immediately on the death of the testator. Where there is no executor the title vests in the

Public Trustee.11 For administrators, title does not vest until the grant of administration. Fourth, in South Australia and Tasmania, apart from the intestacy provision outlined above, in the case of residue estates, property vests in the appointed executor in the case of realty and at common law for personalty.12 The Victorian provision is similar.13 Fifth, in New South Wales all property under both testate and intestate estates vests in the Public Trustee at the time of an owner’s death, only passing to the executor or administrator upon the making [page 343] of a grant of representation. The grant of representation has the effect that the executor’s or administrator’s title relates back to the date of death.14 The result of the Probate and Administration Act 1898 is that neither an executor nor an applicant for letters of administration is competent to bring an action in a representative capacity until the grant of representation is made.15 In Western Australia, the Australian Capital Territory and the Northern Territory, the position is similar to that in New South Wales.16 Sixth, the common law doctrine of relation back, as discussed above, is also relevant to acts of personal representatives, depending on the time of vesting (usually the date of death). From this brief discussion of the differences in some jurisdictions between a grant of probate to an executor and a grant of administration, it may be seen that the avenues for protecting the estate could depend upon the type of grant made by the court. In those jurisdictions where there is a difference between the time of vesting of the deceased estate and the death of the deceased, the appointment of an executor is clearly to be preferred for the protection of the estate.

Form and types of grant

13.2

Grants of representation fall into four main categories:

(1) Probate. As discussed in Chapter 12 above, probate is generally granted by the court to a person appointed by the testator in a valid will as executor, upon application by that person to the court. (2) Administration cum testamento annexo (with the will annexed). The court will grant administration with the will annexed in the following circumstances: (a) where the deceased left a valid will without appointing an executor; (b) where the appointed executor is unable or unwilling to act; (c) where the appointed executor has been cited and has failed to appear before the court; and (d) where the executor has behaved in such a way before the grant of probate as would justify the court removing the executor had probate already been granted.17 (3) General administration. The court will grant general administration where the deceased dies intestate. (4) Limited grants. The court may make a variety of limited grants, which are discussed below.

The jurisdiction to make grants of representation is vested in each state and territory Supreme Court with respect to the estates of persons [page 344] in the relevant jurisdiction.18 In all jurisdictions it is therefore necessary to establish the death of a person before a grant of probate or a grant of administration will be made. Further, in all jurisdictions except Queensland, the Australian Capital Territory and the Northern Territory, it is necessary to show that there is property of the estate within the jurisdiction.19 In Queensland, the Australian Capital Territory and the Northern Territory it is not necessary for property to be in the jurisdiction for the court to make a grant of representation20 if the court is satisfied that a grant of representation is necessary.

Proving the death 13.3

An applicant for a grant of representation must swear to the death of

the deceased and provide supporting evidence of the death. Usually this will present no difficulty as a death certificate will be available. However, even in the absence of a death certificate, a court may accept evidence to prove an inference of death. In such cases, it must be shown, to the satisfaction of the court, that it is probable that the person died, even though there is no corpse. Cases of inference of death include shipwrecks and accidents at sea,21 and plane crashes.22 However, where the deceased has disappeared without any evidence of death, the grant of representation may ultimately depend upon the court allowing the applicant for the grant of representation to swear as to the death of the testator upon the basis of a presumption of death.23 The presumption of death is discussed in detail in Chapter 16 (see particularly 16.7–16.11). That chapter also deals with the problem of commorientes, the legal response to a situation where a testator or beneficiary dies in circumstances where it is uncertain who died first. This may also be an issue in respect to grants of representation, and the reader is referred particularly to 16.2–16.6. [page 345] A grant of representation made in respect of the estate of a living person is void. Thus in Calaway v Primrose24 the plaintiff was believed to be dead and a grant of representation was obtained with respect to his estate. The personal representative purported to dispose of the real property of the plaintiff to the defendant. The plaintiff was held entitled to succeed in an action of ejectment against the defendant. Of course, a grant may also be revoked in these circumstances: see 13.17–13.18 below.

Limited grants Overview of limited grants

13.4 Generally a grant of probate or administration is unlimited as to time, the property or the purpose for which the grant was made. In such cases, the executor or administrator retains his or her office until the estate is fully administered or until he or she has retired or been removed from office. Some restrictions upon the grant of probate such as limitations as to time and the property concerned have already been noted in Chapter 12. In the section below, other limited forms of grants of representation will be considered.

Grant of representation with respect to unadministered estate 13.5 The grant of administration de bonis non (of the unadministered estate) may be made where: (a) the sole or last surviving executor to whom probate has been granted dies intestate and without having fully administered the estate, such that the chain of representation (see Chapter 12) is broken; (b) the sole or last surviving administrator dies without having fully administered the estate, there being no possibility of the chain of representation applying in such cases; (c) there is some authority for the grant de bonis non where the sole personal representative has disappeared;25 and (d) where a sole executor has obtained probate in a foreign jurisdiction and dies before proving the will in the local jurisdiction.

Before there is a grant de bonis non, there must be an unadministered estate.26 Thus, where the only duty that remains is for the transfer of title to property this may be performed by the executor/administrator of the deceased executor/administrator as there is no unadministered estate.27 A grant de bonis non may only be made to those persons falling within [page 346] the categories of persons originally entitled to a grant of administration, and the court will apply the same rules as to priority between those categories.28 Thus, the grant of administration de bonis non will generally be made

according to the person with the greatest interest.29

Grant of administration during the minority of the appointed executor 13.6 As already noted, a person under the age of 18 years is statutorily disqualified from holding the office of executor. Where the testator has appointed a person under 18 years of age as sole executor, the court will grant administration durante minore aetate (during minority) to whomever the court thinks fit. Similarly, where the deceased dies intestate and the person to whom the court would have granted administration is a person under 18 years of age, the court will grant administration to another, limited for the period until the infant attains 18 years of age and also is granted general administration.30 A grant of administration durante minore aetate may also be made where the testator has appointed a minor and another executor, but at the time of death the minor’s co-executor is incapable of assuming the office.31 The selection of an administrator durante minore aetate is at the discretion of the court, although the court generally accords priority to the statutory and testamentary guardians.32 In some circumstances the guardian elected by the infant may be approved by the court.33

Grant of administration durante absentia 13.7 The court has an inherent jurisdiction to grant administration to the authorised attorney of the sole executor or person entitled to a grant of administration where the latter person is out of the jurisdiction at the time of the deceased’s death.34 In such cases, the grant of administration to the authorised attorney will be for the period until the person entitled to the grant of representation applies.35 Such an application ought only be made where the person entitled to the grant expects to be outside the jurisdiction for a period that would detrimentally affect the administration of the estate if no grant were made for that time.36 A grant of administration durante absentia in respect of only one of

several executors will only be made after notice has been provided to the other executors, and a grant in such circumstances will only be for [page 347] the period until another executor applies for probate or until the absent executor returns to the jurisdiction. In most jurisdictions there is authority for the court to grant administration to a person interested in the estate if a specified period has elapsed since the death of the deceased, and the personal representative to whom a grant was made remains outside the jurisdiction.37

Grant during incapacity of entitled person 13.8 A person entitled to a grant of probate may not be mentally38 or physically39 capable of fulfilling the functions of executor at the time of death of the deceased. In such circumstances, the court may grant administration cum testamento annexo et durante corporis aut animi vitio for the period until the executor recovers from his or her incapacity. The court may also make this type of limited grant where a sole executor or administrator already approved by the court succumbs to a mental or physical incapacity.40 In such circumstances, the original grant is not revoked but the court adopts the precaution of requiring the original grant to be impounded. Where the incapacitated representative is one of several representatives, the court will revoke the original grant and reissue a grant to those remaining, reserving the power to grant probate to the excluded representative should he or she recover.41 (For cases where the incapacity is permanent, see the discussion concerning the removal of the personal representative from office in Chapter 12.)

Grant of administration pending suit

13.9 Where there are any pending legal proceedings with respect to the validity of the will or codicil of the testator, or for obtaining, recalling or revoking any grant, the court may make a grant of administration pendente lite (pending the suit).42 Such a grant will only be made in order to protect the estate from prospective losses arising from the absence of a personal representative.43 Thus where the estate includes an ongoing business requiring daily management, the court will generally grant an application for the appointment of an administrator pendente lite. However, before the court will adopt such a course it must be established that the existing managers of the business cannot satisfactorily carry on the business.44 [page 348] In the more recent decision of the Full Court of the South Australian Supreme Court in Re Rondahl; Henderson v Executor Trustee Australia Ltd45 it was reiterated that the appointment of an administrator pendente lite is analogous to the appointment of a receiver, in that the duty of the administrator is to get in the assets of the estate and to manage and preserve them for the benefit of those entitled. The court held, however, that it was not possible to be prescriptive about the duties of such an administrator in this respect, but certainly impartiality in respect to the interests of the beneficiaries was required, particularly when those beneficiaries were in dispute. The essential duty was to preserve the status quo, and relevant directions from the court were appropriate to achieve that purpose.46 Either of the parties to the legal proceedings are generally entitled to seek a grant pendente lite, but any person interested in the estate may make an application. The administration pendente lite continues for the duration of the legal proceedings until the making of final orders in the relevant legal proceedings, and may revive in the event of an appeal.47

Grant of administration ‘for the purposes of the suit’ 13.10 In certain circumstances a court will appoint an administrator solely for the purpose of facilitating the conduct of proceedings against the deceased estate. This type of grant typically arises in circumstances where the deceased caused injury to another for which the deceased was insured. Where the deceased has no or few assets there will generally be no personal representative appointed, in which case the injured party would be unable to initiate or pursue legal proceedings against the deceased’s insurer. To overcome this perceived injustice, a court will appoint an administrator ad litem so that the injured party may pursue the claim against the insurer.48

Miscellaneous grants Grant ad colligenda bona 13.11 This form of grant is intended to protect those with an interest in the proper administration of the estate, and will be granted where a delay in obtaining the full grant of representation may be deleterious to the estate. Thus in Re Tratt,49 a grant ad colligenda bona was made to ensure that the deceased’s business was maintained in a viable state. Similarly, in Re Clore50 a grant ad colligenda bona was made to the Official Solicitor for the purposes of protecting government revenue in circumstances where there [page 349] were doubts that taxes owing to the government would actually be paid. More recently, in Re Estate of Rowell51 a grant was made in circumstances where the deceased was a sole legal practitioner and his widow was appointed sole executor provided she survived the deceased for one month. The widow intended to make application for an order authorising her to carry on the deceased’s legal practice for the benefit of the estate pending the sale of the

practice, but she was unable to do so unless she was the personal representative of the deceased. As she was not in a position to apply for a grant of probate for one month and the practice could waste during that period, it was appropriate that a grant ad colligenda bona should be made.52

Where will is mislaid, outside the jurisdiction or inadvertently destroyed 13.12 A court with probate jurisdiction may make a grant of representation to an appropriate person where there is evidence indicating the existence of a will that is outside the jurisdiction or which has been inadvertently lost or destroyed. In such cases the court must be satisfied that the will has not been destroyed by the testator animo revocandi.53 In such circumstances the grant is made with respect to a copy of the will, limited for the period that the original will remains unavailable.54

Cessate grant 13.13 A cessate grant is made where a grant that is limited in some way has expired. Thus, for example, if the original grant was a grant of administration during the minority of the appointed executor, and the executor attains majority, the original grant determines and the executor is granted a cessate grant. The court in those circumstances makes a new grant for the administration of the entire estate, as opposed to the unadministered estate, and therefore a cessate grant may be distinguished from a grant de bonis non.

Common form and solemn form grants General 13.14 In all Australian jurisdictions proceedings for a grant of probate are divided into two categories: non-contentious proceedings and contentious proceedings. In the former case, a grant of probate in common

[page 350] form will be made by the court and in the latter, a grant in solemn form. The choice between the two forms of proceedings is governed principally by the cogency of the evidence supporting the conclusion that the will complied with all of the requisite formalities for a valid will. Each form of grant is discussed below.

Grant in common form 13.15 In the ordinary course, a will is proved in common form upon application by the executor, a person interested in the will or the Public Trustee (or comparable public authority). Where the will has an appropriate attestation clause and appears to have been properly executed, a rebuttable presumption that the will complies with all of the formalities and that it was the last will of the testator will arise, such that the oath of the personal representative, and production of the will, is generally sufficient to support a grant of representation.55 A common form application therefore presupposes that there is no issue to be litigated in relation to the will or intestacy. In New South Wales, for example, under the Supreme Court Rules, non-contentious proceedings are defined as proceedings where there is no defendant and no person is cited to see the proceedings.56 In such cases, certain forms must be filed, together with a copy of the will in the case of probate, and the proof of death of the deceased. It should also be noted, however, that a grant in common form may be made even if it appears that the will is not regular on its face. A will, for example, may contain no attestation clause. In these types of cases, an affidavit will be required to show due execution or to explain the reason why the will is in the form it is. Should the attesting witnesses be unavailable, the court may take notice of affidavits filed by other persons in a position to assist the court in determining whether the will was properly executed. Thus, in Re Testro,57 the attestation clause was not worded in the usual form, the attesting

witnesses lived in England and the estate was small. In granting probate, the court accepted the affidavit of the widow to the effect that the terms of the will and the signature of the testator were in the handwriting of her deceased husband and that she recognised the writing of the attesting witnesses. A grant in common form is always susceptible to revocation on the basis that the requisite formalities were not complied with in the execution of the will, or for any other reason.58 While it must always be remembered that a grant of probate or letters of administration is a court order and thus a judicial act, the application for a grant in common form is primarily an administrative process unattended by strict formalities, and usually undertaken by the court Registrar. [page 351]

Grants in solemn form 13.16 A will is generally proved in solemn form when there is a doubt concerning the validity of the will on the basis that it has not been properly executed or that it is not the last will of the deceased. To prove a will in solemn form, those propounding the will must tender evidence in support of the conclusion that the will was the last will of the deceased and that it was properly executed. Those opposing the grant in solemn form have the opportunity of cross-examining any witnesses called by the propounder. A grant in solemn form will thus be made after judicial proceedings where the court will determine any issue concerning the validity of the will. This may occur, for example, where there have been proceedings brought by persons interested for the revocation of a grant in common form: see 13.15 above. More commonly, a person interested in the estate will lodge a caveat in the court registry. The caveat procedure varies from jurisdiction to jurisdiction,59 but basically any person who wishes to either object to a grant, or at least be heard before a grant is made, may lodge a caveat.

An application for a grant in solemn form may be sought notwithstanding that a grant of representation in common form has already been made. For example, in Re the Will of England60 probate in common form had been granted to executors in respect of a will under which children of one of the next of kin would take all of the estate. One of the other next of kin had expressed an intention to challenge the will. The next of kin whose children stood to benefit under the will therefore sought a court order requiring the executors to prove the will in solemn form. As one of the attesting witnesses was already deceased, the court ordered that the executors prove the will in solemn form. The effect of a grant in solemn form is that it is generally irrevocable, being binding upon the parties to the proceedings.61

Revocation of grants 13.17 In respect of grants in solemn form, the proved will becomes res judicata and thus will bind not only those persons who were actual parties to the proceedings, but also those who have an interest in the proceedings, though not taking part in them, provided that they had notice of the proceedings.62 As a consequence, revocation of the grant in solemn form is severely restricted63 and it appears that revocation may only take place where the grant was obtained by fraud,64 or a later will is [page 352] discovered after the grant, or the presumed deceased is still in fact alive,65 or where a person opposing the grant is prevented for reasons beyond his or her control from taking part in the proceedings.66 Revocation of grants in common form may take place not only for any of the reasons for which a solemn form grant may be revoked but also, it would appear, for a variety of other reasons.67

Effect of revocation 13.18 All Australian jurisdictions now have legislation effectively protecting the personal representatives in the case of a subsequent revocation of a grant for acts done in good faith prior to revocation.68 Further, as far as third parties are concerned, the principle of Hewson v Shelley69 is to the effect that a grant is not void ab initio, but revocation only takes effect from the actual date of revocation. A purchaser from the personal representative thus obtains a good title despite subsequent revocation.

Obtaining a grant in a foreign jurisdiction 13.19 A grant of representation only has legal effect in the jurisdiction in which the grant was obtained.70 For this reason, a personal representative wishing to deal with assets or initiate legal proceedings in a jurisdiction outside the jurisdiction in which the grant was obtained will need to obtain the approval of the foreign court to the existing grant or obtain a new grant of representation in the foreign jurisdiction. Obtaining a local grant in the foreign jurisdiction is a matter falling within private international law. Suffice it to say that the personal representative seeking a local grant must satisfy the court that a grant ought to be made, the mere fact that a grant has already been made in another jurisdiction being insufficient.71 With respect to immovable goods located in the foreign jurisdiction the personal representative will need to satisfy the court that he or she would be entitled to a grant of representation under the law of the lex situs. Where only movable property is located in the foreign jurisdiction, it will generally be sufficient that a grant has already been made elsewhere. [page 353]

Resealing of grants

13.20 The alternative to obtaining a new local grant is for the personal representative to seek the resealing of the original grant in the foreign jurisdiction. Within Australia and other Commonwealth countries there is reciprocal legislation between the states to facilitate this process.72

1. 2. 3. 4. 5. 6. 7. 8. 9.

10.

11. 12. 13. 14. 15. 16. 17. 18.

19.

Comber’s Case (1721) 1 P Wms 766; 24 ER 605; Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 at 608. Barnett v Earl of Guildford (1855) 11 Exch 19; 156 ER 728. Woolley v Clark (1822) 5 B & A 744; 106 ER 1363. Wankford v Wankford (1703) 1 Salk 299; 91 ER 265. [1916] 1 AC 603 at 608. Barnett v Earl of Guildford (1855) 11 Exch 19; 156 ER 728. Morgan v Thomas (1853) 8 Exch 302 at 307; 155 ER 1362. Fred Long & Sons Ltd v Burgess [1950] 1 KB 115. Probate and Administration Act 1898 (NSW) s 44; Succession Act 1981 (Qld) s 45(2); Administration and Probate Act 1919 (SA) s 46; Administration and Probate Act 1935 (Tas) s 15; Administration Act 1903 (WA) s 46; Administration and Probate Act 1929 (ACT) s 39; Administration and Probate Act (NT) s 52. Probate and Administration Act 1898 (NSW) s 61; Administration and Probate Act 1958 (Vic) s 19; Administration and Probate Act 1919 (SA) s 45; Public Trustee Act 1941 (WA) s 9; Administration and Probate Act 1935 (Tas) s 12; Administration and Probate Act 1929 (ACT) s 38A; Administration and Probate Act (NT) s 49. Succession Act 1981 (Qld) s 45. Administration and Probate Act 1919 (SA) s 46(1); Administration and Probate Act 1935 (Tas) ss 4(1), 5(1). Administration and Probate Act 1958 (Vic) s 13(1). Probate and Administration Act 1898 (NSW) ss 44(1), 61. Marshall v Sundin (1989) 16 NSWLR 463; Darrington v Caldbeck (1990) 20 NSWLR 212 but cf Estate of Gertsch; Gertsch v Roberts (1995) 35 NSWLR 631 per Powell J. Administration Act 1963 (WA) ss 8, 9; Public Trustee Act 1941 (WA) s 9; Administration and Probate Act 1929 (ACT) ss 38A, 39; Administration and Probate Act (NT) ss 49–52. Re Hunter [1932] NZLR 911. See Administration and Probate Act 1958 (Vic) s 6; Succession Act 1981 (Qld) s 6; Probate and Administration Act 1898 (NSW) s 40; Administration and Probate Act 1935 (Tas) s 15; Administration Act 1903 (WA) s 6; Administration and Probate Act 1919 (SA) s 5; Administration and Probate Act 1929 (ACT) s 9; Administration and Probate Act (NT) s 14; Supreme Court Civil Procedure Act 1932 (Tas) s 6. Probate and Administration Act 1898 (NSW) s 40; Administration and Probate Act 1958 (Vic) s 6; Administration and Probate Act 1919 (SA) s 5; Administration Act 1903 (WA) s 6; Supreme Court

20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

38. 39. 40. 41. 42.

43. 44. 45. 46.

Civil Procedure Act 1935 (Tas) s 5(5). In New South Wales there is provision for the grant of administration to enable an application under the family provision legislation: Probate and Administration Act 1898 (NSW) s 41A. Succession Act 1981 (Qld) s 6(2); Administration and Probate Act 1929 (ACT) s 9; Administration and Probate Act (NT) s 14. In Goods of Main (1858) 1 SW & Tr 11; 164 ER 606; Re Ryan [1990] 3 NZLR 91; Re Bennett [2006] QSC 250; Maynard v Estate of Maynard [2015] QSC 144. For example, Smith [1975] 6 ALR 123 (note that was also a case of presumption of death). See also Daly, ‘Proof of Death in the Global Age’ [2016] Law Inst J 35. Re Bales [1908] QWN 31; Re Jackson (1902) 86 LT 747; Probate and Administration Act 1898 (NSW) ss 40A–40C; Administration and Probate Act 1958 (Vic) ss 7–9; Administration and Probate Act 1929 (ACT) ss 9A–9B; Administration and Probate Act (NT) ss 15–16. (1900) 17 WN (NSW) 46. See also Ex parte Keegan (1907) 7 SR (NSW) 565. In the Goods of Loveday [1900] P 154; Re Saker [1909] P 233; Re French [1910] P 169. In the Estate of Horan (1936) 53 WN (NSW) 146; In the Will and Estate of Allan [1912] VLR 286; Re Windle [1960] QWN 19. In the Goods of Malin [1905] VLR 270. Re Hoarey [1906] VLR 437. Savage v Blythe (1796) 2 Hag Ecc App 150; Re Carr (1867) LR 1 P & D 291. Re Johnson [1931] VLR 60. In the Will of Nicol (1926) 43 WN (NSW) 146. In the Goods of Morris (1862) 2 Sw & Tr 360; 164 ER 1035; In the Estate of Khoon Soon (1882) 8 VLR (IP & M) 47; In the Estate of Robertson (1882) 4 ALT 94. Re Dillon’s Infants (1891) 7 WN (NSW) 131; In the Estate of McCaig (1885) 11 VLR 758; Re Coyle (1888) 14 VLR 793. In the Goods of Suarez [1897] P 82. In the Will of Donohue [1944] QWN 8. Re Cowan [1913] SALR 55. Administration and Probate Act 1958 (Vic) s 24(1); Administration and Probate Act 1935 (Tas) s 21; Probate and Administration Act 1898 (NSW) ss 76–79; Administration and Probate Act 1919 (SA) s 37; Administration Act 1903 (WA) s 34. Ex parte Evelyn (1833) 2 My & K 3; 39 ER 846. In the Goods of Knott [1920] 2 IR 397. See, for example, In the Will of Barthold (1895) 21 VLR 107; In the Estate of James (1927) 44 WN (NSW) 157. Re Shaw [1905] P 92. Trout v Crozier [1950] QWN 24; Queensland Trustees Ltd v Finney [1904] QWN 21. In normal circumstances such a grant will be relevant where the personal representative and a beneficiary are in conflict as to the validity of the will or other relevant matters. Greenaway v McKay (1911) 12 CLR 310 at 316. Horrel v Whitts (1866) LR (P & D) 103. (2005) 93 SASR 337. See also Tomkinson v Hersey (1983) 34 SASR 181 for an example and reiteration of these legal

47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

69. 70. 71. 72.

principles. Taylor v Taylor (1881) 6 P 29; In the Goods of Wieland; Wieland v Bird [1894] P 262. In the Estate of Simpson; In the Estate of Ganning [1936] P 40; Walters v Whelan [1941] QWN 26; In the Estate of McGown [1947] VLR 113. [1980] VR 657. See also Re Cohen [1975] VR 187. [1982] 3 WLR 228. (2006) 95 SASR 536. Note also the need for a completely independent appointment in circumstances where there is a serious division between the executors/beneficiaries: Ghafoor v Cliff [2006] 1 WLR 3020. Queensland Trustees Ltd v Ellison [1918] QSR 107. Re Wright [1893] P 21; In the Estate of Twigg (1881) 7 VLR (IP & M) 59; Re Henderson [1996] 1 Qd R 249. In the Will of Walsh (1883) 4 LR (NSW) Eq 1; In the Will of Monteith (1896) 22 VLR 60. Pt 78 r 7. (1902) 8 ALR (CN) 61. See also Kirkland’s Will (1887) 4 WN (NSW) 81; In the Will of Priebe [1915] QWN 3. Re Egan (decd) [1963] VR 318 at 320; Tsagouris v Bellairs (2010) 5 ASTLR 403 per Gray J at [35]. See, for example, Supreme Court Rules (NSW) Pt 78 rr 63–69; Administration and Probate Act 1958 (Vic) ss 58–61. (1900) 22 ALT 86. See also Re Levy [1953] VLR 652. In the Estate of Vauk (decd) (1986) 41 SASR 242 at 248; Tsagouris v Bellairs (2010) 5 ASTLR 403 per Gray J at [36]. Young v Holloway [1895] P 87; Osborne v Smith (1960) 105 CLR 153. Re Estate of Kirs (decd) (1990) 55 SASR 61. Birch v Birch [1902] P 130; Re Gillard [1949] VLR 378. Re Napier’s Goods (1809) 1 Phill Ecc 83; 161 ER 921. Re Barraclough [1965] 2 All ER 311 at 316. Re Moore (1845) 3 Notes of Cases 601; Re Campbell [1961] QWN 45; In Will of Littlejohn (1952) 69 WN (NSW) 129; Bates v Mesner (1967) 67 SR (NSW) 187. Probate and Administration Act 1898 (NSW) ss 40D, 90(2); Administration and Probate Act 1958 (Vic) s 10; Administration and Probate Act 1919 (SA) s 43; Succession Act 1981 (Qld) s 53(4); Administration Act 1903 (WA) s 47; Administration and Probate Act 1929 (ACT) s 32B(1); Administration and Probate Act 1935 (Tas) s 28; Probate Rules 1936 (Tas) r 82A; Administration and Probate Act 1969 (NT) s 43(1)(b), (c). [1914] 2 Ch 13. Arnot v Chapman (1884) 5 LR (NSW) Eq 66. Lewis v Balshaw (1935) 54 CLR 188. Probate and Administration Act 1898 (NSW) ss 107–110; Administration Act 1903 (WA) ss 61– 62; Administration and Probate Act 1935 (Tas) Pt VI; Administration and Probate Act 1958 (Vic) ss 80–88; Administration and Probate Act 1919 (SA) ss 17–20; Administration and Probate Act 1969 (ACT) Pt 5; Administration and Probate Act 1969 (NT) s 111; British Probates Act 1898 (Qld) s 4.

[page 355]

The Administrative Process Part 1 — Functions and Duties of Personal Representatives

14

General Responsibilities of the personal representative 14.1 The responsibilities of the personal representative may be listed according to the approximate chronological order in which those duties will require attention in the administration of a deceased estate. They are: (1) a person appointed or wishing to be appointed as the personal representative of a deceased ought to be satisfied that the relevant person concerned is in fact deceased before taking any steps with respect to the deceased estate; (2) to ensure that the assets of the deceased requiring continual supervision are attended to; (3) to arrange the funeral and the disposal of the body; (4) to prove the will, if there is one; (5) to collect in all of the deceased’s assets; (6) to identify and meet the liabilities of the deceased and expenses arising from the administration of the estate such that the accounts may be finalised; and (7) to distribute the assets remaining in the estate according to the terms of the will or, upon an intestacy, according to statute.

Assets of the deceased requiring immediate attention 14.2 As already noted in Chapter 12, action taken out of necessity will not constitute a person an executor de son tort or be recognised as an executor’s acceptance of office, and so a person may act to the extent necessary to protect the assets and family of the deceased. Nevertheless, those acting out of necessity ought to be mindful of the limited action allowed before they render themselves liable as executors de son tort or are deemed to have accepted the office of executor. [page 356]

Funeral and disposal of the body General 14.3 The common law has consistently held that there is no property in a dead body and therefore no right of ownership.1 Nonetheless the common law interest is that the body be disposed of with respect and decency and in regard to public health issues. The priority is therefore to arrange a proper disposal expeditiously. In normal circumstances, this will not cause any legal problems, but in some cases there will be family disputes as to the proper mode of disposal and destination of ashes, if the body is cremated. It should be noted that while there is no property in a dead body, the court still has the jurisdiction to determine disputes as to disposal.2 It should also be noted that any instructions in the will as to the disposal of the testator’s body are unenforceable.3 However, it is often the case that testators leave such instructions, and in practical terms, an executor or administrator is highly likely to carry out the wishes of the testator.4 Disputes relating to disposal of the body may occur in respect to both testate and intestate estates, but are more likely in the latter. For this reason, separate consideration is given to each in the following discussion.5

Where there is an executor 14.4 In the case of testate succession, and where an executor has been appointed, the position is relatively clear in that the executor has both the duty and the power to dispose of the body in an appropriate manner. Until disposal, the executor also has custody of the body for the limited purpose of its proper disposal.6 Should there be a dispute, therefore, the rights of the executor will be enforced against others interested.7 This absolute right has been more recently upheld by the Western Australian [page 357] Supreme Court in Re Boothman; Ex parte Trigg8 and Manktelow v Public Trustee.9 It has been suggested, in Smith v Tamworth City Council,10 that an executor is expected to consult with other stakeholders, but there is no legal obligation.

Where there is an administrator, or where an administrator is not yet appointed 14.5 It was formerly the case that the duty of disposal of the body in the case of intestate estates (and thus the right to possession for the purpose of that disposal) resided in the next of kin.11 In a general sense, this is still correct, but there is some dispute as to whether those who either have obtained letters of administration, or those entitled to obtain the same (not having yet done so), have an absolute right. Because of the urgency of the matter, the latter case is more relevant, in that disposal of the body normally occurs prior to obtaining a grant of administration. Where administration has already been granted then the position is the same as that of an executor, as discussed above in 14.4.12 In cases where there is no administrator yet appointed, then the general position is that the person with the best claim to seek letters of administration (see 12.21–12.25 in

Chapter 12) has the duty and power to determine arrangements as to the disposal of the body. In other words, the potential administrator is granted the right. Thus in Meier v Bell,13 where the intestate, an Aboriginal man, died leaving a de facto spouse and a young child, and a dispute arose as to the place of burial between the de facto spouse and the sister of the deceased, it was held that the child of the deceased had the best claim, being the potential administrator.14 It was stated that: ‘[T]here cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters religious, cultural or of some other description.’15 Cultural and religious issues may also be involved where there are two or more persons who are equally entitled to apply for the letters of administration. In these circumstances, the court is guided by practical issues, including residence (and length of residence) in the relevant jurisdiction, family situations and unreasonable delay in determining disposal. In Calma v Sesar,16 for example, the plaintiff and the defendant were the mother and father of the deceased, an Aboriginal man who had died interstate in Darwin. The body was released by the coroner to the father, who wished to bury the deceased in Western Australia, where the [page 358] deceased was born, and in accordance with traditional Aboriginal custom. The mother, however, had arranged for a Roman Catholic Church service, the deceased having been baptised in that Church, followed by burial in a Darwin cemetery. It was held that there was no good reason why the removal of the body from the Northern Territory to Western Australia was to be preferred, Martin J noting that it was undesirable to delay burial while the parents argued their claims. It was simply a matter of convenience, the court commenting that: The conscience of the community would regard fights over the disposal of human remains such as this unseemly. It requires that the court resolve the argument in a practical way paying due

regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.17

This statement has been disputed, particularly by the South Australian Full Court of the Supreme Court in the case of Jones v Dodd.18 There the court held that matters such as religious and cultural beliefs were indeed relevant considerations and should be taken into account: [T]he proper approach … is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.19

In that case, the court rejected any rigid proposition that burial rights necessarily depended upon the right to obtain an administrative grant.20

Disposal of ashes 14.6 Apart from statutory modifications, discussed below, there is not a great deal of common law authority as to the legal situation regarding disposal of ashes. As always, however, disputes have and will occur between interested parties as to proper disposal. The judgment of Byrne J of the Supreme Court of Victoria in Leeburn v Derndorfer21 provides a valuable summary of the position, indicating the considerable problems in the area. The basic position is that where there is an executor, and there has been a cremation, then the executor’s rights, as discussed above in 14.4, also extend to the right of possession of the ashes for the limited purpose of final disposal.22 Thus, cremation is equivalent to burial for this purpose.23 In the case of intestacy, the recent decision in Doherty v Doherty24 has established that the prima facie right is vested in [page 359] the person or persons entitled to apply for letters of administration, although that is not conclusive, particularly in respect to cultural and other factors

which might touch upon the question. The administrator should also take these factors into account, and consult others in respect to the decision as to disposal. This common law position may be affected by statutory provisions in various jurisdictions. Thus in New South Wales25 and the Australian Capital Territory,26 a right to ashes is conferred upon the applicant for cremation in that the cremation authority must, after cremation, give the ashes to the applicant or in accordance with directions. This right is limited solely to the applicant in South Australia and Western Australia27 and to the next of kin in Tasmania.28 The Victorian position is now covered by the Cemeteries and Cremations Act 2003. Finally, in Queensland, the Cremations Act 2003, in s 11, provides that ‘the person in charge of the crematorium must not dispose of the ashes remaining after a cremation except in accordance with any reasonable written instructions of the applicant’. In Doherty v Doherty,29 it was held that the purpose of this provision was to prevent unauthorised disposal of the ashes, and any contractual right is subject to the right of the personal representative to decide how, ultimately, a deceased person’s remains shall be disposed of.30

Post-mortem use of body parts 14.7 In general, and as is pointed out by Croucher and Vines,31 bodies and body parts are useful in medical science for anatomical, therapeutic and transplantation purposes and for medical and scientific research. Legislation in all Australian jurisdictions now regulates this practice. In particular, it provides that the wishes of the deceased, if known, are decisive, so that if the deceased has a wish that his or her body not be used for these purposes, then that wish will prevail. If the wishes are not expressed, the wishes of the senior next of kin prevail.32

Proving the will

14.8 An executor who has not renounced office is generally required to seek probate of the will within a prescribed period commencing at the [page 360] death of the testator. A failure to do so entitles those interested in the estate and certain statutorily appointed persons to apply to the court to issue a summons calling upon the executor to take some action, whether it be to renounce the office or bring the will into court. The court may also consider to whom administration cum testamento annexo should be granted.33 Similarly, a person who is not an executor but is in possession of the will may be required to bring the will into court.

Collecting the assets of the deceased General 14.9 The next task of the personal representative, after proving the will, is to gather in the assets of the estate. This may entail collecting movable items, transferring title to real property (for which a grant of representation will generally be necessary) and, in the absence of any express testamentary direction, getting in any money lent by the deceased on personal security.34 The common law duty to gather in loans on personal security does not apply to secured loans, provided that the executors have acted honestly and in the belief that they have adopted the most prudent course for the administration of the estate.35

Available assets 14.10 In most jurisdictions virtually all of the assets in which the deceased was beneficially interested and which are in the jurisdiction and also those assets over which the deceased exercised a general power of appointment in

the will are available for satisfaction of the liabilities of the estate.36 Further, in Re Tong,37 the court held that the property of the deceased estate included contingent interests in property that were not vested in the deceased at the time of death. These assets may be supplemented by any gifts to volunteers made by the testator in his or her lifetime,38 any assets located in a foreign jurisdiction which subsequently come into the possession of the personal representative (see 14.11 below) and also, where the estate is administered in bankruptcy, by the relevant provisions [page 361] of the Bankruptcy Act 1966 (Cth) catching fraudulent preferences and assets disposed of within a prescribed period.39 However, property held by the deceased as trustee40 and any claims for damages with respect to personal injuries41 are not available to the creditors. Certain moneys payable under life insurance policies and superannuation payments are also generally excluded from the pool of assets available to creditors.42

Can a personal representative be certain that all of the assets have been received? 14.11 At any particular time it may be impossible to ensure that all of the assets of the estate have been received, as the estate may always receive further property under another will or upon the happening of some other contingency. For this reason the personal representative retains the office even after the ‘final’ distribution of the assets available to the estate. Thus, in Re Tong,43 it was held that the assets statutorily vested in the personal representative were not restricted to those vested in possession of the deceased at the time of death, as the deceased may have had remainder interests and contractual rights to property.

Liabilities of the estate General 14.12

The liabilities of the personal representative fall into two categories:

(1) the expenses of the personal representative incurred in administering the estate; and (2) those liabilities incurred by the deceased prior to death.

Liabilities incurred by the personal representative: funeral expenses 14.13 The rights of the executor or administrator in respect to the body of the deceased for the purpose of burial or cremation have already been considered above in 14.3–14.5. As regards the actual payment for the funeral and associated expenses, the general principle is that reasonable expenses are payable out of the deceased’s estate. Reasonableness is determined by any directions in the will and cultural and burial practices applicable in [page 362] respect to the deceased.44 In the absence of such direction, unreasonable expenses are disallowed.45 Funeral expenses not only include the cost of burial or cremation, but associated expenses such as preparation of the body, notices in newspapers and conveyance of the body, and acquisition of a plot in the case of burial.46

Liabilities incurred by the personal representatives: testamentary and administrative expenses 14.14 These are simply expenses that are necessarily incidental to the proper performance of the duties of a personal representative. They include: (1) costs expended in ascertaining the liabilities of the estate, including the costs of necessary advertisements; (2) costs and expenses in collecting the relevant assets;

(3) costs expended in identifying beneficiaries; (4) costs associated with obtaining either solicitors’ or court advice as to administration of the estate; (5) costs involved in obtaining either probate or letters of administration, when necessary; and (6) costs in preserving assets.

As to the latter it should be noted that in respect to specific gifts (as to which, see 9.3) expenses incurred are excluded from this category of testamentary and administrative expenses. The expenses in this case are therefore cast upon the beneficiary.47

Liabilities incurred by the personal representative: personal liability 14.15 Personal representatives are generally personally liable with respect to the expenses incurred in fulfilling the duties of office, and this principle also applies to the duties in respect to funeral and other testamentary and administrative expenses, discussed immediately above in 14.13 and 14.14. Nevertheless, there is entitlement to indemnity out of the estate for these expenses, and these expenses are generally ranked as the first charge of the deceased’s estate.48 Should others rather than the personal representative arrange for the burial or cremation, then the personal representative is liable for that cost, but only if not unreasonable.49 [page 363]

Liabilities incurred by the deceased: torts and contracts 14.16 At common law, the principle actio personalis moritur cum persona meant that an action in tort by or against the deceased did not survive the death of the deceased where unliquidated damages only were recoverable.50 This limitation upon the survival of actions has been substantially modified by legislation such that most tortious actions remain on foot notwithstanding the death of the party.51

All contracts entered into by the deceased must be paid by the personal representative, unless they are statute barred.52 Contractual obligations will remain binding unless the contract is frustrated53 or otherwise ceases to exist (for example, on the basis that the contract called for the personal performance of the deceased).54 Should others rather than the personal representative arrange for the burial or cremation, then the personal representative is liable for that cost, but only if not unreasonable.55

Expediting the ascertainment of liabilities 14.17 Given that the personal representative was liable at common law for all of the deceased’s liabilities to the extent of the estate assets coming into his or her hands, it was clearly important that the personal representative pay considerable attention to ascertaining the extent of those liabilities before making the final distribution of the estate to the beneficiaries. While this common law liability was clearly for the protection of creditors, it impeded the expeditious finalisation of deceased estates. Two statutory measures operate to provide the personal representative with some protection from the common law liability for all of the deceased’s debts. These are discussed immediately below.

Conclusive notification of claims against the estate 14.18 The common law liability of the personal representative for all debts of the estate, whether the representative has notice of them or not, has been substantially modified. To obtain personal immunity against the claims of creditors and other persons interested in the estate, a personal representative therefore need only take statutorily prescribed measures to advertise his or her intention [page 364]

to distribute the deceased estate and wait for the prescribed period to pass before distributing the assets.56 Provided that the prescribed formalities are satisfied, the personal representative is absolved from personal liability with respect to any liability of which he or she had no actual or constructive notice, and the creditors or persons interested in the estate therefore lose entitlement to claim payment of the debt as against the personal representative. Notwithstanding this protection of the personal representative, a creditor of the deceased of whom the personal representative had no notice may still pursue the assets into the hands of creditors of a lower priority or the beneficiaries.

Compelling a creditor to pursue a claim against the estate 14.19 The second modification to the common law liability of personal representatives for the debts of the deceased allows the representative to expedite the administration of the estate by compelling a creditor to pursue a claim against the estate within a prescribed period.57 A failure by the creditor to take steps towards prosecuting a claim within the statutory period will therefore create a statutory bar upon the pursuit of payment. This statutory bar prevents any action against not only the personal representative, but also the beneficiaries.

Payment of liabilities of the estate 14.20 Having ascertained the liabilities of the estate, the personal representative must discharge them with reasonable care, as a failure to do so will render the personal representative liable for any loss to the estate. For example, while a personal representative is entitled to pay a debt that is statute barred under the Statute of Limitations,58 the payment of a debt that has been held by a court to be statute barred is considered a failure to exercise reasonable care.59

The personal representative is also under a duty to discharge the liabilities of the estate within a reasonable time. The failure to discharge the liabilities within one year of the death of the deceased is not conclusive evidence of a failure to comply with this duty, but after the expiration of one year the personal representative must justify the delay.60 This is often referred [page 365] to as the ‘executor’s year’, based upon the prima facie common law rule of convenience that the executor should administer the deceased’s estate within 12 months of the latter’s death.

Priority for payment of debts 14.21 As already noted, the personal representative and creditors of the estate are clearly interested in the order of priority for the payment of debts from the estate. As between the creditors of equal ranking, they rank rateably and proportionably between each other.61 A charge created by the will whereby one creditor is advantaged to the detriment of the remaining creditors will be void.62 Schemes for the payment of debts are discussed immediately below.

Insolvent estates Applications under Bankruptcy Act 1966 14.22 Creditors of the deceased may apply to have the deceased estate administered in bankruptcy in accordance with the Bankruptcy Act 1966 (Cth) where: (1) there is a debt or aggregate debts of at least $5000 incurred by the deceased or by the personal representative, or a debt or debts totalling at least $5000 become(s) owing after the death of the deceased; (2) the debt is a liquidated sum payable immediately or at a certain future time;

at the time of his or her death the deceased debtor was ordinarily resident in Australia or had some other connection with Australia falling within s 244(6)(b); (4) the legal personal representative has been served with a sealed copy of the petition, unless a court has dispensed with this requirement; and (5) that the debt(s) remain owing at the time the petition is heard by the court.63 (3)

Alternatively, the personal representative of a deceased person who had a connection with Australia recognised by s 247 of the Bankruptcy [page 366] Act 1966 may petition the court for an order requiring the administration of the estate in bankruptcy.64 If the requirements set out in s 244 or s 247 of the Bankruptcy Act 1966 are not satisfied, there is no possibility of an insolvent estate being administered under the federal jurisdiction.

Administration of insolvent estates under state or territory legislation 14.23 An administration of an insolvent estate need not necessarily be brought under the Bankruptcy Act 1966 (Cth), as there is specific provision for the administration of insolvent estates in the relevant state and territory legislation. The key difference for present purposes between the Commonwealth and state legislation concerns the assets available for distribution to creditors, as the pool of assets available may be broader under the Commonwealth legislation since the Bankruptcy Act may reach some property transferred inter vivos by the deceased.65 The state legislation generally adopts the priorities established under the Bankruptcy Act 1966.66 The statutory order for the payment of debts of an insolvent estate is therefore generally similar to that set down in Administration and Probate Act 1958 (Vic) s 39(2) and (3):

(2) Subject to subsection (4) and anything to the contrary in this Act, the administration of an estate to which this section applies must be conducted in accordance with the bankruptcy rules as in force at the date of death of the deceased. (3) The bankruptcy rules apply in relation to the following— (a) the valuation of annuities and future and contingent liabilities of the deceased’s estate; (b) the priorities of debts and liabilities of the deceased’s estate.

As a result of this incorporation of the ranking of creditors set out in the Bankruptcy Act 1966 (Cth), the priority for the payment of debts in the administration of insolvent estates under state legislation is generally as follows: (1) funeral, testamentary and administration expenses; (2) secured debts, at least inasmuch as the security satisfies the debt;67 (3) in those jurisdictions where the administration legislation does not purport to bind the Crown, unsecured Crown debts;68 and

[page 367] (4) other unsecured debts.69

Only the first category requires further definition. As already noted (see 14.15 above), the costs of the funeral generally are a first charge upon the assets of the estate. The testamentary and administrative expenses are discussed in 14.14 above and include all expenses necessary for carrying the will into effect.70 For example, the costs of obtaining a grant of representation,71 the costs of identifying the next of kin,72 the cost of identifying the property that is the subject of a specific devise,73 corpus commission74 and the executor’s commission.75

Solvent estates General 14.24 Where the estate is solvent, the creditors will be unconcerned as to the priority for payment of the debts, but the beneficiaries may still be

interested in two matters: (1) the priority of assets available for payment of debts where there are insufficient assets to satisfy all liabilities, legacies, annuities and devises; and (2) whether any assets are specifically charged with the payment of a particular liability or distribution.

With respect to these two matters, the terms of the will may establish the order in which assets are to be applied, in which case the terms of the will are binding.76 Thus, where the will provides that all of the assets are to be combined into one fund for the payment of liabilities and legacies, the statutory scheme will be excluded such that all assets bear the debts and legacies rateably.77

Priority of assets at common law 14.25 In the absence of provision in the will, there was a general law scheme for the application of assets to the satisfaction of unsecured liabilities. This common law appropriation of assets for the satisfaction of the unsecured debts of the estate was founded upon the medieval rule [page 368] that realty was not available for the satisfaction of the liabilities of the deceased estate.78 Subject to a contrary intention expressed in the will, the order of priority under the common law was: (1) the general or residuary personalty not specifically bequeathed or exonerated; (2) real estate expressly devised to pay debts (as distinct from real estate devised subject to a charge for the payment of debts); (3) real estate not disposed of by the will; (4) real estate devised and personalty bequeathed subject to a charge to pay debts; (5) general legacies; (6) specific and residuary devises of real estate and specific legacies; (7) property which the testator has power to appoint and which has been appointed by the will;79 and

(8) any property falling within the category of donatio mortis causa.

The preferential treatment accorded realty under this common law prioritisation is reflected in the fact that general or residuary personalty was ordinarily to be applied to the satisfaction of liabilities of the estate notwithstanding that the testator had expressly devised realty for the payment of liabilities.80 Only a clear expression of the testator’s intention that realty was to be applied to the satisfaction of debts would overturn the common law presumption that personalty was the primary fund.81

Priority of assets under state legislation 14.26 This common law position has, however, been displaced in most jurisdictions82 by differing statutory schemes for the application of assets to the payment of unsecured liabilities, which are also subject to a contrary intention of the testator expressed in the will.83 Thus, in New South Wales the statutory scheme provides:84 Order of application of assets where the estate is solvent (1) Assets undisposed of by will, subject to the retention thereout of a fund sufficient to meet any pecuniary legacies. [page 369] (2) Assets not specifically disposed of by will but included (either by a specific or general description) in a residuary gift, subject to the retention out of such property of a fund sufficient to meet any pecuniary legacies, so far as not provided for as aforesaid. (3) Assets specifically appropriated or disposed of by will (either by a specific or general description) for the payment of debts. (4) Assets charged with or disposed of by will (either by a specific or general description) subject to a charge for the payment of debts. (5) The fund, if any, retained to meet pecuniary legacies. (6) Assets specifically disposed of by will, rateably according to value.

It may be seen that no distinction is drawn between realty and personalty in the statutory scheme for the application of assets to the satisfaction of liabilities. However, the intention of the testator with respect to the

application of assets to the discharge of liabilities is not accorded preeminence in the New South Wales statutory scheme. With respect to the statutory scheme applicable in New South Wales, it should also be noted that the meaning of ‘assets undisposed of by will’ includes failed dispositions that are not caught by a disposition of the residuary estate.85 In contrast with the statutory order for the application of assets to the satisfaction of unsecured liabilities applicable in New South Wales, s 59(1) of the Succession Act 1981 (Qld) provides that the assets of the estate are applied to meeting the liabilities of the estate according to the intention of the testator: (1) Where the estate of a deceased person is solvent the estate shall, subject to this Act, be applicable towards the discharge of the debts payable thereout in the following order, namely: Class 1—Property specifically appropriated or bequested (either by a specific or general description) for the payment of debts; and property charged with, or devised or bequeathed (either by a specific or general description) subject to a charge for the payment of debts; Class 2—Property comprising the residuary estate of the deceased including property in respect of which any residuary disposition operates as the execution of a general power of appointment; Class 3—Property specifically devised or bequeathed including property specifically appointed under a general power of appointment and any legacy charged on property so devised, bequeathed or appointed; Class 4—Donationes mortis causa.

Ascertaining whether the testator has excluded the statutory scheme 14.27 One issue with respect to the application of some of these statutory schemes is how a testator may override the operation of the statutory scheme. In New South Wales, for example, the statutory scheme specifically acknowledges that the testator may allocate particular assets for the [page 370]

settlement of debts, but does not accord such assets the first priority in settling the claims of creditors. Thus, in New South Wales, the question is whether a specific allocation of assets for the purposes of satisfying debts is sufficient to override the statutory scheme. To override the application of the statutory scheme for the satisfaction of debts out of the estate, the testator must specifically identify which assets are to meet the liabilities of the estate. It is therefore not enough that the testator has merely included a general direction for the payment of liabilities of the estate, as the testator must have indicated which assets are to bear those liabilities.86 However, it now seems to be accepted that by specifically charging particular assets with the payment of debts the testator expresses the intention that the statutory scheme ought to be ignored.87 In some jurisdictions any doubt has been overcome by elevating the category of assets specifically charged with the payment of liabilities to the first class of assets. It may be seen from the extract above that in Queensland, the legislature has adopted this course for the payment of debts. Further, in Queensland s 59(3) of the Succession Act 1981 (Qld) specifically addresses this matter: The order in which the estate is applicable towards the discharge of debts and the incidence of rateability as between different properties within each class may be varied by a contrary or other intention signified by the will, but a contrary or other intention is not signified by a general direction, charge or trust for the payment of debts or of all the debts of the testator out of his estate or out of his residuary estate or by a gift of any such estate after or subject to the payment of debts.

Property mortgaged or charged by the testator in his or her lifetime — Locke King’s Act 14.28 Where properties constituting a part of the deceased estate are mortgaged or charged by the testator for the satisfaction of the testator’s debts, it will be important to determine the order in which the secured properties are to be realised in satisfying the debts where the properties have been bequeathed to different beneficiaries. In such cases what is commonly

called the rule in Locke King’s Act applies in determining the priority in which the security will be realised in satisfying the secured debts. For example, s 40 of the Administration and Probate Act 1958 (Vic) provides: (1) Where a person dies possessed of, or entitled to, or under a general power of appointment (including the statutory power to dispose of entailed interests) by his will disposes of, an interest in property which at the time of his death is charged with the payment of money whether by way of mortgage charge or otherwise (including a lien for unpaid purchase money) and the deceased has not by will deed or other document signified a contrary or other intention, the interest so charged [page 371] shall, as between the different persons claiming through the deceased, be primarily liable for the payment of the charge; and every part of the said interest according to its value shall bear a proportionate part of the charge on the whole thereof. (2) Such contrary or other intention shall not be deemed to be signified— (a) by a general direction for the payment of debts or of all the debts of the testator out of his personal estate or his residuary real and personal estate or his residuary real estate; or (b) by a charge of debts upon any such estate— unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge.88

The testator may override the operation of this statutory rule by specifically creating a fund for the satisfaction of the liabilities of the estate (including the liability with respect to the particular property) or by specifically exonerating the property of the mortgage or charge. Notwithstanding the proviso allowing the testator to modify the operation of this provision by setting aside a fund from which the liabilities including the secured liability are to be satisfied, the particular property may still be subject to at least some of the liabilities of the estate where the fund set aside by the testator is inadequate to meet the liabilities.89 For example, assume that the liabilities of the estate are $40,000, of which $20,000 is secured over ‘Blackacre’ (valued at $100,000) which is specifically devised to X. The testator has directed that the liabilities of the estate are to be paid out of a specified fund, which at the time of the testator’s death only amounts to $30,000. The application of s 40 has been excluded, but only to the extent of

the fund set aside for the satisfaction of liabilities. However, the provision does not say whether the remaining $10,000 of liabilities are to be satisfied out of ‘Blackacre’ or whether the statutory scheme for the application of assets to the discharge of liabilities is to apply. There would appear to be three options: (1) that all of the liabilities of the estate are satisfied rateably out of the specified fund, leaving the remaining $5000 secured over Blackacre to be satisfied out of Blackacre and the remaining $5000 of unsecured liabilities to be satisfied in accordance with the statutory scheme; (2) that the specified fund be applied to the satisfaction of the debts, therefore leaving $10,000 to be satisfied out of Blackacre; or (3) that the unsecured liabilities are to be satisfied out of the specified fund in priority to the secured liability, with the remaining $10,000 to be satisfied out of the assets in accordance with the statutory scheme for the application of assets to the satisfaction of liabilities.

To overcome any doubt, resolution of this problem is for the testator to specifically set out the order of application of assets, thereby overcoming this apparent lacuna in the statutory framework. The testator may also [page 372] specifically exonerate the property from the payment of any mortgage or charge with respect to the property. However, such exoneration will not entirely exonerate the property where the exoneration has the effect that all of the fund that would have been used to satisfy the pecuniary legacies is depleted in meeting the liabilities of the estate. In such cases, the doctrine of marshalling will apply in favour of the pecuniary legatees.90

Appropriation and marshalling of assets 14.29 A personal representative may utilise assets in a lower priority class (that is, more protected) in preference to higher priority assets to satisfy debts. A personal representative may adopt this procedure in order to expedite the administration, particularly where the lower priority assets are more liquid than those in the higher priority categories. It should be noted

that certain classes of assets such as life insurance and superannuation benefits will not be available for the satisfaction of debts: see 14.10. In this case, the beneficiary entitled to the asset, which falls into the lower priority class, becomes entitled in equity to compensation.91 The personal representative must therefore marshal the remaining assets of the estate and adjust the accounts to ensure that the beneficiaries’ priority is restored in accordance with the order established by the will, at law or under statute.92

Distribution of the estate General 14.30 A personal representative is under a duty to distribute the assets of the estate within a reasonable time, some legislation providing that the personal representative is bound to distribute the estate before one year has expired since the death of the deceased.93 See 14.41. A personal representative need not wait until all of the debts of the estate have been satisfied before making distributions to beneficiaries of the estate, but if distributions are made in these circumstances, the personal representative will generally be personally liable for any loss caused to a creditor should it subsequently transpire that the estate is insolvent.94 The personal representative may transfer the assets of the estate to the beneficiaries by complying with the requisite formalities or may acknowledge the interest of a particular beneficiary by what is known as an assent. The assent procedure is considered in more detail below. [page 373]

Intestate estate 14.31 Where the deceased did not leave a will disposing of his or her assets in their entirety, the legislation governing the distribution of the deceased’s

assets upon an intestacy will apply. The rules governing the distribution of estates on an intestacy were considered in Chapter 10.

Testate estates 14.32 In distributing the estate under a will, the personal representative must be careful to ensure that the assets are distributed in accordance with the proper interpretation of the will. The distinction drawn between the various forms of dispositions may be relevant for the following reasons: (1) in determining whether a particular disposition has failed; (2) in categorising an asset for the purposes of the statutory scheme for the application of assets to the satisfaction of liabilities; and (3) in establishing the date from which interest or other income attributable to the legacy will be payable.

Ascertaining the categories of dispositions 14.33 For the purposes of the law relating to the administration of estates, a distinction is drawn between specific devises, residuary devises and five categories of legacy. A devise is a gift of real property, while a legacy is a gift of personal property. The various types of gifts that may be left by will have already been outlined in a general way in Chapter 9 above. The significance of that discussion was for the purposes of dealing with the doctrines of ademption, lapse, disclaimer and forfeiture as well as the equitable doctrines of satisfaction and election. In this chapter, such types of gifts are again outlined, but with specific reference to the actual distribution of the estate. To reiterate, the five types of legacies are specific, general, pecuniary, demonstrative and residuary.

Specific legacies 14.34 A specific legacy (and a specific devise) is a gift of identified property, or property capable of identification. The nature of a specific gift was considered by Dixon CJ in McBride v Hudson:

What marks a bequest as specific is that its subject-matter is designated as something that does at the time of the will, or shall at the time of the death of the testator, form an identifiable part of his property and is, so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition.95

[page 374] Thus even the forgiveness of a debt by a will is considered to be a specific legacy.96 Any income derived from the property specifically bequested after the date of death will generally be payable to the specific legatee.97 This rule has been applied to contingent and future specific bequests by statute in some jurisdictions.98

General legacies 14.35 A general legacy merely gifts a generic form of property to the beneficiary, without identifying the specific asset. For example, ‘to X, a set of golf clubs’ as opposed to ‘to X, my set of golf clubs’. As discussed in Chapter 9 above, the key consequence of a legacy being general rather than specific is that it may not be adeemed. However, a specific legacy may fail where the property specified in the gift has ceased to exist.99 Where a specific gift is in danger of being adeemed, there is a rebuttable presumption that a gift is general rather than specific.100 In the absence of a contrary intention expressed in the will, a general legacy is payable one year after the death of the testator101 or once the estate accounts are finalised.102 Interest is generally payable from the first anniversary of the testator’s death103 unless there is a contrary intention expressed in the will, where the legacy is in satisfaction of a debt104 or where the legacy is charged on property.105

Fund from which general legacies are payable 14.36 At common law only personalty that was not specifically bequeathed was the primary fund for general legacies unless there was a contrary intention expressed in the will.106 If this class of personalty was insufficient to meet the general legacies, those legacies would abate rateably unless there was a contrary intention expressed in the will.107 Once again, this reflected the benevolent attitude of the common law to devisees at the expense of legatees. The testator may vary the operation of this common law rule by making a residuary gift of personalty and realty in one fund. The effect of such a testamentary disposition is that legacies [page 375] must be satisfied out of the residue.108 The testator may also vary the operation of the common law rule by expressing a contrary intention. One means of doing this was by specifically charging realty with the payment of legacies. However, merely charging realty with the payment of legacies without specifically exonerating personalty was construed as the creation of a secondary liability rather than evidencing the intention that personalty was not to be the primary fund.109 In Queensland this common law position has been modified by s 60 of the Succession Act 1981 (Qld) which provides: Subject to a contrary or other intention signified by the will— (a) pecuniary legacies shall be paid out of the property comprised in Class 2 referred to in section 59 after the discharge of the debts or such part thereof as are payable out of the property; and (b) to the extent to which the property comprised in Class 2 referred to in section 59 is insufficient the pecuniary legacies shall abate proportionately.

In New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory, the legislation is more ambiguous,110 as there are only the provisions dealing with the appropriation of assets to the satisfaction

of debts, although the provisions do expressly refer to the preservation of a fund for ‘pecuniary legacies’: see 14.26 above. Only in Victoria does the legislation specifically define ‘pecuniary legacy’ to include such legacies.111 Furthermore, it is not apparent from the legislation whether such provision is intended to override the common law with respect to the application of assets to the satisfaction of general and demonstrative legacies. For example, s 38 of the Victorian legislation112 deals with the distribution of the estate on an intestacy, providing for the conversion of the estate and the payment thereout of testamentary, funeral and administrative expenses and then providing that: … out of the residue of the said money the personal representative shall set aside a fund sufficient to provide for any pecuniary legacies bequeathed by the will, if any, of the deceased.

There is therefore a clear indication as to the fund from which any legacies are to be drawn.113 But with respect to solvent testate estates, the legislation does not operate to exclude the common law. Section 39 of the Victorian legislation provides only that the funeral, testamentary and [page 376] administrative expenses are to be satisfied out of the assets as set out in the applicable schedule, the first paragraph of which provides that the liabilities of the deceased are to be satisfied out of the property undisposed of by will ‘subject to the retention thereout of a fund sufficient to meet any pecuniary legacies’. As the enacting provision makes no mention of provision for the payment of legacies, the common law is arguably not excluded and therefore remains operative in many cases.114 Although the matter is not free from doubt, it seems that this statutory order will only apply where s 38(2) is satisfied.115 An appropriately drafted will excludes the difficulties raised here. In Western Australia and South Australia, there is no relevant statutory provision and so the common law remains applicable.

Demonstrative legacies 14.37 A demonstrative legacy is a gift of personalty to be satisfied out of a specified fund.116 Thus, a gift of $100 ‘of the money in my safe’ or a gift of $100 charged over particular property or the estate generally are examples of demonstrative legacies. By comparison to specific and general legacies, a demonstrative legacy cannot be adeemed117 and yet generally ranks with specific legacies in the allocation of assets where the estate is insufficient to meet all claims.118 Further, if the fund on which a demonstrative legacy is charged is inadequate to meet the legacy, the legacy will be specific to the extent allowed by the fund charged but general with respect to the remainder.119 Thus, demonstrative legacies do not abate with general legacies except to the extent that the fund charged with the demonstrative legacy is insufficient to meet that legacy.120 Interest on demonstrative legacies is payable from the first anniversary of the testator’s death unless the will states otherwise.121 Where there is a doubt as to whether a bequest is specific or demonstrative, the courts lean in favour of construing it as a demonstrative bequest.122

Residuary gifts 14.38 A residuary gift passes the property not specifically disposed of under the will. A residuary gift may comprise a residuary gift of realty [page 377] (a residuary devise) or a residuary gift of personalty (a residuary legacy). To be effective in passing all of the undistributed property, the residue clause must generally be so worded as to apply to both personalty and realty.123 As may be seen from this brief consideration of the types of testamentary dispositions, a personal representative may face issues of considerable

complexity in determining the nature of a disposition under the will. In these circumstances, the consequences of misconstruing the will should cause personal representatives to exercise considerable caution in distributing the assets of the estate. The personal liability of the personal representative in such circumstances will be considered below.

Ademption and other failure of gifts 14.39 Ademption means ‘a taking away’. As already noted in Chapter 9, where the terms of the will bequeath or devise specific property to a beneficiary, and the testator disposes of the particular property124 or the property is in such a different form that it no longer fits the testamentary description,125 the gift will be ignored and is said to be adeemed. The reader is referred to the relevant case law on this issue discussed in Chapter 9: see 9.8–9.11. 14.40 Gifts may fail not only under the doctrine of ademption, but through the doctrines of lapse, disclaimer, forfeiture and, in equity, through satisfaction and equitable ademption. Each of these doctrines has been sufficiently described in Chapter 9 above, to which the reader is referred. Suffice it to say that as far as the personal representative is concerned, an understanding of the legal effect of these doctrines is essential for the proper distribution of the estate. Where a testamentary disposition fails for one of the reasons noted above, the property will fall into the residuary estate and will be disposed of in accordance with the terms of the residuary dispositions, provided that the residuary clause is appropriately drafted. For an example where a residuary clause was insufficient to dispose of all of the residuary estate, see Re Olive.126 In the event that the residuary disposition is not sufficient to dispose of all of the residuary estate, the remaining residue will be distributed in accordance with the intestacy provisions or, failing that, to the Crown as bona vacantia.

[page 378]

Completion of administration General 14.41 As a general proposition, although not a rule except in Victoria and Tasmania,127 it is expected that an estate will be completely administered within one year of the death of the testator: the so-called ‘executor’s year’. While not absolute, dependent upon the nature of the assets and liabilities and other circumstances, it allows the beneficiaries to expect the payment of debts, funeral and testamentary expenses within that period, and that there should be distribution to them without unreasonable delay.128 Indeed, the onus is on the executor to show reason why there is a delay if it extends beyond the executor’s year.129

Transferring assets to beneficiaries 14.42 After all liabilities and debts have been paid, the personal representative must then transfer the assets to the beneficiaries, or next of kin in the case of an intestacy. In a general sense, this may be done simply by observing the normal formal requirements in respect to inter vivos dispositions, such as transfer of real property by transfer, or personalty by deed. However, a personal representative may also be able to distribute by a less formal method commonly known as an assent.

What is an assent? 14.43 An assent constitutes an acknowledgment by the personal representative that she or he holds an asset in readiness for transfer to a nominated beneficiary in accordance with the terms of the will, having decided that the asset is not needed to satisfy the other liabilities of the estate. Thus, an assent is necessary for property to pass and may be evidenced by the executor acknowledging that she or he holds the property beneficially rather

than in the capacity of personal representative.130 Subject to specific statutory provision,131 an assent may be in writing or verbal, and may even be implied from conduct. However, an assent will not be implied from equivocal conduct.132 Whether an assent has been given is a question of fact.133 [page 379] An assent may be made with respect to a particular asset notwithstanding that liabilities of the estate remain outstanding.134 At common law an assent could only be made with respect to personalty. However, with respect to legal interests in realty, legislation in Victoria, Tasmania and the Australian Capital Territory authorises the personal representative to transfer interests in realty by means of an assent, but may require that an assent be in writing, name the person to take the interest and be signed by the personal representative or otherwise provide for certain formalities to be satisfied for a valid assent.135

When is the residuary estate ascertained? 14.44 A personal representative may become a trustee when the residue has been ascertained. In respect of testate estates, having ascertained the debts and valid testamentary dispositions, the personal representative is in a position to determine the quantum of the residue. Administration of a testate estate is complete once all of the liabilities of the estate have been ascertained and provided for, such that the residue is quantifiable.136 At this time the residuary beneficiaries take a beneficial interest in the assets comprising the residue.137 In the case of an intestate estate, the administration of the estate is generally complete at the time when all of the liabilities have been provided for, and the personal representative is holding the assets pending their transfer to the takers under the intestacy.138

Differences between the office of a legal personal representative and that of a trustee 14.45 The differences between the office of legal personal representative and that of a trustee include: (1) Where there is more than one legal personal representative, they may act jointly or severally139 whereas a trustee must act jointly with co-trustees. (2) Different limitation periods may apply with respect to actions brought against personal representatives as opposed to trustees. (3) A residuary beneficiary has no proprietary right in the estate until the administration of the estate is complete.140 The only right such a [page 380] beneficiary has during the administration of the estate is to compel the personal representative to administer the estate in accordance with the law.141 Nevertheless, a residuary beneficiary may assign the interest in the estate inter vivos or dispose of it by will.142 (4) The powers of a personal representative to deal with the assets may differ from those allowed a trustee. For example, the personal representative will usually be divested of many of his or her powers implied under the relevant administration legislation, as those powers are conferred only for the purpose of administering the estate.143 Further, the statutorily implied powers of a personal representative are not subject to a contrary intention of the testator, whereas the implied powers of a trustee are generally subject to any contrary intention expressed by the settlor.144 (5) Once a personal representative has accepted office it is generally not possible for them to retire from office or appoint a person as a replacement. Where a sole executor dies without completing the administration of the estate, the executor’s executor may assume the responsibilities of administering the original deceased estate by virtue of the chain of representation.145 In the absence of an executor appointed by the first executor, a court will appoint an administrator de bonis non.146 A personal representative may only be removed by court order.147 By contrast, a trustee may retire from office, a co-trustee may discharge or remove a trustee from office or, in the last resort, a court may order the removal of a trustee from office. Thus, once the personal representative has assumed the role of trustee, she or he may appoint a new trustee.

This list of differences between the office of personal representative and that of trustee indicates that it may be important to determine whether a person is acting in the capacity of a personal representative or that of a trustee.

1.

2. 3. 4.

5.

6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

Williams v Williams (1882) 20 Ch D 659. But see Doodeward v Spence (1908) 6 CLR 406; Dobson v North Tyneside Health Authority [1997] 1 WLR 596; R v Kelly [1999] QB 621; Yearworth v North Bristol NHS Trust [2010] QB 1. (These cases did not involve succession law issues.) Calma v Sesar (1992) 106 FLR 446 at 451. Williams v Williams (1882) 20 Ch D 659; Robinson v Pine Grove Memorial Park Ltd (1986) 7 BPR 15,097. See Hutley, Ch 5, where it is suggested that such instructions should not be placed in the will but conveyed to the executor and family prior to death in writing. If they are contained in the will, then executors should be appointed who are sympathetic to the testator’s wishes, and are apprised of them in good time. For general discussion see Griggs and Mackie, ‘Burial Rights: The Contemporary Australian Position’ (2000) 7 Journal of Law and Medicine 404; Conway, ‘Dead but Not Buried: Bodies, Burial and Family Conflicts’ (2003) 23 Legal Studies 423; A Review of the Law in Relation to the Final Disposal of a Dead Body, Queensland Law Reform Commission, WP No 58, June 2004. Williams v Williams (1882) 20 Ch D 659. Murdoch v Rhind [1945] NZLR 425; Smith v Tamworth City Council (1997) 41 NSWLR 680. Cf Cremation Act 2003 (Qld) ss 7, 8. [1999] WASC 102 (unreported, SC(WA), Owen J, 27 January 1999). (2001) 25 WAR 126. See also the extensive examination of this issue in Takamore v Clarke [2013] 2 NZLR 733. (1997) 41 NSWLR 680 at 694. See, for example, Calma v Sesar (1992) 106 FLR 446. See, for example, Buchanan v Milton [1999] 2 FLR 844. Unreported, SC(Vic), Ashley J, No 4518/97, 3 March 1997. As the child was a minor, the child’s mother, being the custodial parent, assumed the right. Meier v Bell (unreported, SC(Vic), Ashley J, No 4518/97, 3 March 1997. See also Warner v Levitt (1994) 7 BPR 15,110. (1992) 106 FLR 446. See also Manktelow v Public Trustee (2001) 25 WAR 126. (1992) 106 FLR 446 at 452. (1999) 73 SASR 327. (1999) 73 SASR 327 at 336. See also Dow v Hoskins [2003] VSC 206, which followed this approach. See also the discussion by Gray J in Minister for Families and Communities v Brown [2009] SASC 86. [2004] VSC 172. [2006] QSC 257. Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694. [2006] QSC 257. Public Health (Disposal of Bodies) Regulation 2002 (NSW) cl 43. Cemeteries and Cremation Regulations 2003 (ACT) reg 11. Cremation Regulations 2001 (SA) reg 12; Cremation Act 1929 (WA) s 7. Burial and Cremation Regulations 2002 (Tas) reg 12. [2006] QSC 257.

30. 31. 32.

33. 34. 35. 36.

37. 38. 39. 40. 41. 42.

43. 44. 45. 46. 47. 48. 49. 50. 51.

52. 53.

[2006] QSC 257 at [18]. At [4.36]–[4.41]. See also Hutley at [5.4] and Forms following in Ch 5 for possible precedents. Human Tissue Act 1983 (NSW) ss 23, 24; Human Tissue Act 1982 (Vic) ss 26, 27, 32; Transplanation and Anatomy Act 1979 (Qld) ss 22, 23, 31, 32; Transplantation and Anatomy Act 1983 (SA) ss 21, 23, 29, 30; Human Tissue and Transplantation Act 1982 (WA) s 22; Human Tissue Act 1985 (Tas) ss 23, 24; Transplantation and Anatomy Act 1978 (ACT) ss 27, 28, 37, 38; Transplantation and Anatomy Act (NT) Pt 3. In the Estate of Shepard (decd) (1982) 30 SASR 1. Lowson v Copeland (1787) 2 Bro CC 156; 29 ER 89; Powell v Evans (1801) 5 Ves 839; 31 ER 886. Re Chapman; Cocks v Chapman [1896] 2 Ch 763. Probate and Administration Act 1898 (NSW) s 46; Administration and Probate Act 1958 (Vic) s 37; Succession Act 1981 (Qld) s 56; Administration Act 1903 (WA) s 10; Administration and Probate Act 1935 (Tas) s 32; Administration and Probate Act (NT) s 55; but note the provisions in South Australia and the Australian Capital Territory which merely provide that the liabilities of the estate are to be met out of the deceased’s assets: Administration and Probate Act 1929 (ACT) s 55; Administration and Probate Act 1919 (SA) s 59. [1931] Ch 202. See Re Phillips [1931] 1 Ch 347. Bankruptcy Act 1966 (Cth) ss 115, 116, 121. Bankruptcy Act 1966 (Cth) ss 249, 116(2)(a). Bankruptcy Act 1966 (Cth) ss 249, 116(2)(g); Re Goode (1974) 24 FLR 61; Re Wren (1972) 19 FLR 280. See Life Insurance Act 1995 (Cth) s 205; see also Superannuation Act 1922 (Cth) s 143; Superannuation Act 1916 (NSW) s 88; State Superannuation Act 1988 (Vic) s 88; Superannuation (State Public Sector) Act 1990 (Qld) s 4.15. For discussion of the protection of such assets see Certoma, 3rd ed, 1996, pp 294–7. [1931] 1 Ch 202. For an interesting example see Mullick v Mullick (1829) 1 Knapp 245; 12 ER 312. The general principles are discussed in Rees v Hughes [1946] 1 KB 517. Re Macarthur; Corderoy v Macarthur (1907) 24 WN (NSW) 211b. Public Trustee v Bednarczk and Kijas [1959] SASR 178 at 180. Re Rookes; Jeans v Gatehouse [1933] CW 970 is an example. See, for example, Succession Act 1981 (Qld) s 57(a); Rees v Hughes [1946] 1 KB 517. Meier v Bell above, footnote 13. See also Warner v Levitt (1994) 7 BPR 15,110. Rees v Hughes [1946] 1 KB 517. See, for example, Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2; Administration and Probate Act 1958 (Vic) s 29; Succession Act 1981 (Qld) s 66; Survival of Causes Action Act 1940 (SA) s 2; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4; Administration and Probate Act 1935 (Tas) s 27; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt II; Civil Law (Wrongs) Act 2002 (ACT) s 15. For discussion, see Mendelson, Baldin and Davis, Law and Torts, 4th ed, LexisNexis Butterworths, pp 390–2. The exception is defamation. Re Wenham [1892] 3 Ch 59; Re Dallas (1910) 6 Tas LR 65. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32.

54. 55. 56.

57.

58. 59. 60.

61.

62. 63. 64. 65. 66.

67. 68.

69. 70. 71. 72. 73. 74. 75. 76. 77.

Chamberlain v Williamson (1814) 2 M & S 408; 105 ER 433; Graves v Cohen (1929) 46 TLR 121. Rees v Hughes [1946] 1 KB 517. Trustee Act 1958 (Vic) s 30; Trusts Act 1973 (Qld) s 67; Probate and Administration Act 1898 (NSW) s 92; Trustee Act 1925 (NSW) s 60; Trustee Act 1936 (SA) s 29; Trustee Act 1962 (WA) s 63; Trustee Act 1898 (Tas) s 25A; Trustee Act (NT) s 93; Trustee Act 1925 (ACT) s 60; Perpetual Trustee Co Ltd v Permanent Trustee Co (NSW) Ltd (1941) 41 SR (NSW) 264. Administration and Probate Act 1958 (Vic) s 30; Probate and Administration Act 1898 (NSW) s 93; Trusts Act 1973 (Qld) s 68; Trustee Act 1936 (SA) s 29(2); Trustee Act 1962 (WA) s 64; Trustee Act 1898 (Tas) s 25A(5), (6); Administration and Probate Act (NT) s 97 — but note that the beneficiaries are not afforded the same protection — see s 99; Trustee Act 1925 (ACT) s 60. Stahlschmidt v Lett (1853) 1 Sm & Giff 415; 65 ER 182. Midgley v Midgley [1893] 3 Ch 282; Re Dallas (1910) 6 Tas LR 65. This rule is based upon s 8 of the Statute of Distribution 1670 (22 & 23 car II c 10), adopted in Succession Act 1981 (Qld) s 52(1); Administration and Probate Act 1958 (Vic) s 49; and Administration and Probate Act 1935 (Tas) s 43(1). See also Grayburn v Clarkson (1868) LR 3 Ch App 605; Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 73–4. Probate and Administration Act 1898 (NSW) s 82; Administration and Probate Act 1958 (Vic) s 36(3); Succession Act 1981 (Qld) s 58; Administration Act 1903 (WA) s 23; Administration and Probate Act 1935 (Tas) s 34; Administration and Probate Act (NT) s 87; Administration and Probate Act 1919 (SA) s 59; Administration and Probate Act 1929 (ACT) s 55. Beyfus v Lawley [1903] AC 411. See Bankruptcy Act 1966 (Cth) s 244. Bankruptcy Act 1966 (Cth) s 247. See Bankruptcy Act 1966 (Cth) s 249. See, for example, Probate and Administration Act 1898 (NSW) s 46C; Administration and Probate Act 1958 (Vic) s 39; Succession Act 1981 (Qld) ss 57–58; Administration Act 1903 (WA) s 10A; Administration and Probate Act 1935 (Tas) s 34; Administration and Probate Act 1919 (SA) s 61; Administration and Probate Act (NT) s 57; Administration and Probate Act 1929 (ACT) s 41C. See Bankruptcy Act 1966 (Cth) s 90(3). See, for example, Probate and Administration Act 1898 (NSW); Administration and Probate Act 1958 (Vic); Administration and Probate Act 1935 (Tas); cf Succession Act 1981 (Qld) s 4(2); Administration and Probate Act 1919 (SA); Administration and Probate Act 1929 (ACT); Administration and Probate Act (NT). Subject to specific statutory priority accorded to particular categories of debts. Re Sullivan (1889) 15 VLR 462. Re Hicks; Trustees Executors & Agency Co Ltd v Hicks (No 2) (1895) 17 ALT 91. Re Stone; Read v Dubua (1936) 36 SR (NSW) 508. Re Le Grand; Timms v Le Grand (1930) 36 ALR 239. Re McIntosh (No 2); Perpetual Trustee Co Ltd v McIntosh (1902) 2 SR (NSW) (Eq) 247. Re McIntosh (No 2); Perpetual Trustee Co Ltd v McIntosh (1902) 2 SR (NSW) (Eq) 247. Re Kempthorne; Charles v Kempthorne [1930] 1 Ch 268. Roberts v Walker (1830) 1 Russ & M 752; 39 ER 288; Simmons v Rose (1856) 6 De GM 7 G 411; 43 ER 1292.

78. 79.

Anon (1601) Gouldsb 149; 75 ER 1057; Bright v Larcher (No 2) (1859) 4 De G & J 608; 45 ER 236. See Williams Law of Executors and Administrators, 9th ed, Stevens & Sons, London, 1893, p 1592; National Trustees Executors and Agency Co Ltd v Keast (1896) 22 VLR 447 at 464. 80. Re Banks [1905] 1 Ch 547 at 549. 81. Phipps v Annesley (1740) 2 Atk 57; 26 ER 432. 82. However, in South Australia and Western Australia similar schemes have been retained: Administration Act 1903 (WA) ss 10, 23; Wills Act 1970 (WA) s 28. See Croucher and Vines at [17.3]–[17.9]. 83. See, for example, Probate and Administration Act 1898 (NSW) s 46C(2) and Sch 3 Pt II; Succession Act 1981 (Qld) s 59; Administration and Probate Act 1958 (Vic) ss 39A, 39B; Administration and Probate Act 1935 (Tas) s 34(3); Administration and Probate Act 1929 (ACT) s 41C; Administration and Probate Act (NT) s 57(1). 84. Probate and Administration Act 1898 (NSW) s 46C(2) and Sch 3 Pt II. 85. Re Tong [1931] 1 Ch 202. See also Roman Catholic Archbishop of Melbourne v Lawler (1934) 51 CLR 1 at 27–8 per Starke J; 40 per Dixon J; and 55–6 per McTiernan J. 86. University of Western Australia v West Australian Trustee Executor and Agency Co Ltd (1961) 105 CLR 71; Fowler v Nield (1961) 61 SR (NSW) 152. 87. In re Meldrum (decd); Swinson v Meldrum [1952] Ch 208; Permanent Trustee Co of NSW Ltd v Temple [1957] SR (NSW) 301. 88. See also Conveyancing Act 1919 (NSW) s 145; Administration and Probate Act 1958 (Vic) s 40; Succession Act 1981 (Qld) s 61; Administration and Probate Act 1935 (Tas) s 35; Administration and Probate Act 1919 (SA) s 52; Wills Act 1970 (WA) s 28. Civil Law (Property) Act 2006 (ACT) s 500. 89. Re Fegan [1928] 1 Ch 45. 90. Lutkins v Leigh (1734) Cas Temp Talb 53; 25 ER 658; Perpetual Trustee Co Ltd v Killick (1951) 51 SR (NSW) 36. 91. Re Mathews’ Will Trusts [1961] 3 All ER 869 at 873. 92. Re Townley; Public Trustee v Allder [1922] 1 Ch 154 at 159. 93. See Administration and Probate Act 1958 (Vic) s 49; Administration and Probate Act 1935 (Tas) s 43; cf Administration and Probate Act 1919 (SA) s 56; Administration Act 1903 (WA) s 44. 94. Re Hicks (No 2) (1895) 17 ALT 91. 95. (1962) 107 CLR 604 at 617; see also Robertson v Broadbent (1883) 8 App Cas 812 at 815 per Lord Selbourne. 96. Re Wedmore [1907] 2 Ch 277. 97. Sleech v Thorington (1754) 2 Ves Sen 560 at 563; 28 ER 357; Shaw v Marten [1901] 1 Ch 370. 98. See Conveyancing Act 1919 (NSW) s 36B; Wills Act 1997 (Vic) s 33; Succession Act 1981 (Qld) s 62. 99. Re Gray (1887) 36 Ch D 205. 100. Pawlet’s Case (1679) Raym Sir T 335; 86 ER 174; Robinson v Addison (1840) 2 Beav 515; 48 ER 1281; Will of Adam [1921] VLR 492; McBride v Hudson (1962) 107 CLR 604; Re Plowright [1971] VR 128. 101. Walford v Walford [1912] AC 658. 102. Wroe v Seed (1863) 4 Giff 425 at 430; 66 ER 773 at 775.

103. 104. 105. 106. 107. 108. 109. 110. 111. 112.

113.

114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133.

Walford v Walford [1912] AC 658. Clark v Sewell (1744) 3 Atk 96 at 99; Shirt v Westby (1808) 16 Ves 393; 33 ER 1033. Re Waters (1889) 42 Ch D 517; Pearson v Pearson (1833) 5 B & Ad 859; 110 ER 1008. Robertson v Broadbent [1883] App Cas 812; Re Cameron; Nixon v Cameron (1884) 26 Ch D 19; Re Timson [1953] 1 WLR 1361. Robertson v Broadbent [1883] AC 812 at 815. Greville v Browne (1859) 7 HLC 689; 11 ER 275. Re Ovey; Broadbent v Barrow (1885) 31 Ch D 113 at 118; Gray v Gray (1904) 29 VLR 1000. See, for example, Probate and Administration Act 1898 (NSW) s 82(1) and Sch 3 Pt 22. Administration and Probate Act 1958 (Vic) s 5(1). For the similar Tasmanian provision see Administration and Probate Act 1935 (Tas) s 33. In New South Wales, the Australian Capital Territory and the Northern Territory there is no comparable provision. In New South Wales, despite the absence of any express provision, the residue is likewise subject to the satisfaction of legacies: Re Foley; Channel v Foley [1952] 53 SR (NSW) 31; Fowler v Nield (1961) 61 SR (NSW) 152. For discussion of the meaning of ‘pecuniary legacy’ in New South Wales see Certoma, 3rd ed, 1996, p 302. Re Thompson [1930] 1 Ch 47; Re Neal [1933] ALR 298. Re Berry; Equity Trustees Executors & Agency Co Ltd v Berry [1954] VLR 557; for further discussion see McCredie at [737]. Dawson v Reid (1915) 113 LT 52. Mann v Copland (1817) 2 Madd 223; 56 ER 317; Re Stephen’s Will (1932) 27 Tas LR 58. Mullins v Smith (1860) 1 Drew & Sm 204; 62 ER 356; Willox v Rhodes (1826) 2 Russ 452; 38 ER 405. Sellon v Watts; Smith v Watts (1861) 9 WR 847; Fowler v Willoughby (1825) 2 Sim & St 354; 57 ER 381; D v T (1901) 22 ALT 168. Roberts v Pocock (1798) 4 Ves 150; 31 ER 77; Mullins v Smith (1860) 1 Drew & Sm 204; 62 ER 356. Walford v Walford [1912] AC 658. Re Stephen’s Will (1932) 27 Tas LR 58. There may be legislation that overrides this: see Succession Act 1981 (Qld) s 29(a). Shand v Robinson (1898) 19 LR (NSW) Eq 85. In the Will of Hutton [1916] VLR 546; Oakes v Oakes (1852) 9 Hare 666; 68 ER 680 at 683. [1989] 1 Qd R 544. Administration and Probate Act 1958 (Vic) s 49; Administration and Probate Act 1935 (Tas) s 43(1). Wightwick v Lord (1857) 6 HL Cas 217 at 226–7. Grayburn v Clarkson (1868) LR 3 Ch App 605 at 606. Doe d Hayes v Sturges (1816) 7 Taunt 217 at 223; 129 ER 87 at 89. Administration and Probate Act 1958 (Vic) s 41(4); Administration and Probate Act 1935 (Tas) s 36(4). Doe d Chidgey v Harris (1847) 16 M&W 517; Elliott v Elliott (1841) 9 M&W 23; 152 ER 11; Attenborough v Soloman [1913] AC 76; Wise v Whitburn [1924] 1 CW 460. Elliott v Elliott (1841) 9 M&W 23; 152 ER 11; Mason v Farnell (1844) 12 M&W 674; 152 ER 1369.

134. Austin v Beddoe (1893) 41 WR 619; Partridge v Equity Trustee Executors Agency Co Ltd (1947) 75 CLR 149 at 166. 135. See, for example, Administration and Probate Act 1958 (Vic) s 41(4); Re Campbell [1968] VR 46; Administration and Probate Act 1935 (Tas) s 36(4); Administration and Probate Act 1929 (ACT) s 56. In New South Wales the personal representative has no power to assent with respect to real estate as s 46E of the Probate and Administration Act 1898 (NSW) governs the transfer of interests in real property by a personal representative. 136. Re Ponder [1912] 2 Ch 159; IRC v Smith [1931] KB 713. 137. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694. 138. Re McPhail (decd) [1971] VR 534. 139. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492. 140. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Official Receiver in Bankruptcy v Schultz (1990) 64 ALJR 651. 141. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Official Receiver in Bankruptcy v Schultz (1990) 64 ALJR 651; Ramage v Waclaw (1988) 12 NSWLR 84. 142. Re Leigh’s Will Trusts [1970] Ch 277. 143. See, for example, Administration and Probate Act 1958 (Vic) s 44; Administration and Probate Act (NT) s 80; Administration and Probate Act (ACT) s 50; Administration and Probate Act 1935 (Tas) s 39; Attenborough v Solomon [1913] AC 76 at 83; Re Hird & Hickey’s Contract [1919] VLR 717. 144. Cf Trusts Act 1973 (Qld) s 31. 145. See, for example, Administration and Probate Act 1958 (Vic) s 17; Succession Act 1981 (Qld) s 47; Administration and Probate Act 1935 (Tas) s 10; Imperial Acts Application Act 1969 (NSW) s 13. 146. In the Estate of Horan (1936) 53 WN (NSW) 146; In the Will and Estate of Allan [1912] VLR 286; Re Windle [1960] QWN 19. 147. See, for example, Administration and Probate Act 1958 (Vic) s 34; Administration Act 1903 (WA) s 20; Probate and Administration Act 1898 (NSW) s 66; Administration and Probate Act 1919 (SA) s 5; Succession Act 1981 (Qld) s 6; Administration and Probate Act (NT) s 41.

[page 381]

The Administrative Process Part 2 — Powers, Rights and Liabilities of Personal Representatives

15

Powers General 15.1 As already noted in Chapter 14, the powers of a personal representative to deal with the assets of the deceased estate prior to a grant of representation may depend upon whether executors have been appointed in a valid will and also upon legislation governing the derivation of the personal representative’s title. Once a grant of representation has been made, the personal representative is invested with certain powers either by statute or at law, in addition to any powers granted under a will, to deal with the assets of the deceased estate in order to facilitate its administration and the distribution of the assets under the will or by law. These powers conferred upon a personal representative by statute or at law are discussed below.

Power of sale

15.2 A personal representative may need to sell assets of the estate in order to discharge the liabilities of the estate and also to pay any legacies under the will. At common law the personal representative has a power to dispose of the personalty of the deceased,1 but the power of sale at common law has been considerably extended by the administration legislation in all jurisdictions.2 In Victoria, for example, s 44 of the Administration and Probate Act 1958 provides: [page 382] In dealing with the real and personal estate of the deceased his personal representatives shall for purposes of administration have— (a) the same powers and discretions including power to raise money by mortgage with or without a power of sale or charge (whether or not by deposit of documents) as a personal representative had before [1 January 1873] with respect to personal estate vested in him; (b) all the powers discretions and duties conferred or imposed by law on trustees holding land upon an effectual trust for sale; and (c) all the powers conferred by statute on trustees for sale …

A purchaser for value is entitled, in the absence of actual or constructive notice, to assume that the personal representative disposing of the property is authorised to do so.3 Furthermore, the purchaser is not required to ensure that the purchase money is properly applied by the personal representative.4 This principle is based on practicality, for if purchasers from the personal representative were liable to account for the property, few would deal with a personal representative. This would make the administration of the estate, which generally requires the personal representative to realise assets by sale, an almost impossible task.

Power to carry on business 15.3 A personal representative may take control of a business formerly carried on by the deceased. The period for which the personal representative is authorised to carry on the business may vary, depending upon the existence

of some express authority validly granted to the personal representative by the testator or those interested in the estate. At common law a personal representative is only empowered to carry on the deceased’s business for the purpose of realising it.5 Where the business is merely being carried on for the purpose of realisation, the personal representative is entitled to an indemnity out of the general estate with respect to all liabilities incurred by the business. As these liabilities are a part of the cost of administering the estate, they have priority over all other claims on the estate by beneficiaries and creditors.6 A personal representative may be empowered by the will, those interested in the estate, by court order or by a statutory power to postpone sale7 and to carry on the business as a going concern. Where a business is [page 383] being carried on for this purpose, the rights of the personal representative and those interested in the estate with respect to the estate will vary, depending upon the source of the personal representative’s authorisation to carry on the business. If it is proposed that the business be carried on as a going concern under a power contained in the will, the general creditors of the estate (as opposed to the possibly more restricted class of creditors of the business) are nevertheless entitled to satisfaction of their claims against the estate, and so may require the sale of the business for this purpose. If the general creditors can be satisfied out of other assets of the estate, the personal representative may carry on the business as a going concern. In this case, the personal representative’s indemnity against the assets of the estate only takes priority to the claims of the business creditors and the beneficiaries.8 Where the personal representative carries on the business after the completion of the administration of the estate, she or he will do so in the capacity of trustee and

so the indemnity will only be against the assets of the business and any other assets forming a part of the same trust estate.9 Where the estate creditors authorise the personal representative to carry on the business beyond the time that is necessary to obtain a fair price,10 the personal representative will have priority over the creditors in their claims against the estate.11 In this case, the debts incurred by the personal representative in carrying on the business will take priority to those of the estate creditors.12 The beneficiaries may also authorise the personal representative to carry on the business beyond the time necessary for its realisation,13 in which case they will forego any action against the personal representative in the event of any loss suffered by the estate as a result of the personal representative’s prudent conduct of the business. Should the personal representative carry on the business for a period beyond that for which he or she is expressly or impliedly authorised, the indemnity will generally cease to exist.14

Power to compromise 15.4 To facilitate the expeditious administration of the estate, a personal representative is authorised to compromise claims upon the estate. [page 384] Provided that the personal representative acts in good faith there can be no action against him or her by any of the beneficiaries or creditors.15

Power to employ agents 15.5 At common law a personal representative was authorised to employ an agent to assist with the administration of the estate provided that the agent was employed to perform duties within his or her ordinary course of

business, that the employment of such an agent accorded with commercial practice,16 and that the personal representative properly supervised the agent.17 A statutory power to employ agents is now generally provided under the trustee legislation. It should be noted that the wording of the power to employ agents and the implied indemnity varies in several important respects across the Australian jurisdictions.

Power to appropriate assets 15.6 Although a will may provide that a general legatee or residuary beneficiary is to take a particular sum or share of the residue respectively, that beneficiary may wish to take the value of that gift in the form of a distribution in specie. At common law, in the absence of a contrary intention expressed in the will, the personal representative was allowed to appropriate an asset to a general legatee or residuary beneficiary provided that the particular beneficiary receiving the in specie distribution consented. This power was founded upon the personal representative’s power to sell the particular asset appropriated to the legatee, with an appropriate set off for the purchase price against the legacy.18 The common law position has been modified by statute in most jurisdictions.19 In exercising the powers vested in him or her, the personal representative must consider the interests of the beneficiaries as a whole20 and not favour one beneficiary over another.21 [page 385]

Rights

General indemnity 15.7 As is evident from the discussion above, and in Chapter 14, being a personal representative can be an onerous and sometimes risky undertaking. It may also involve substantial costs. While the general right to an indemnity has been discussed in respect to individual circumstances in Chapter 14, it should be reiterated that the general rule is that while the personal representative is personally liable for all debts properly incurred in the administration of the estate, there is an indemnity attached to the assets of the estate.22 Quite apart from this indemnity, a personal representative has a right to seek directions from the court and, in certain circumstances, a right to commission.

Seeking directions from the court 15.8 Where there is a doubt concerning the proper interpretation of a will, a personal representative is entitled to seek the guidance of the court, the cost of which may be paid out of the estate. This supervisory jurisdiction of the court cannot be ousted by the will.23 The court may give specific directions to the personal representative on such matters as the actual terms of the will or the process of administration. In general, this very useful power is contained in the Supreme Court Rules of each jurisdiction.24

Right to commission 15.9 The common law position in respect to payment of personal representatives is that, like any other fiduciary, the office is gratuitous, so that the representative is not entitled to remuneration.25 The history of this rule and subsequent developments were traced by the High Court of Australia in Nissen v Grunden,26 which decision established that due to specific provisions in the Charter of Justice establishing the Supreme Court of New South Wales, executors were ‘to be paid for their trouble in administering estates if the court thought fit’.27 Since that decision, the courts in all jurisdictions have been given specific statutory powers to award commission to personal

representatives, reflecting the fact that it is: … appropriate in many instances for an executor to receive remuneration for carrying out their obligations. It may be that in times gone by there were more people with the leisure and resources to take on unremunerated [page 386] trusteeships. However, in contemporary times the payment of executors’ remuneration is conducive to the good administration of estates.28

Quite apart from the statutory provisions, commission is also payable to an executor where a will specifically so directs.29 Further, remuneration may also be payable if all capable beneficiaries consent to such, in the absence of a direction in the will itself. Even though commission may be payable, it may be refused by the court on the ground of misconduct.30 It should also be noted in respect to commission that where there is a gift of a legacy to an executor in a will, then there is a presumption, discussed in Public Trustee v Kuehn,31 to the effect that the legacy is made to that person in the office of executor, and thus will fail should the donee not undertake the executorship. The presumption is rebuttable.32 Finally, it should be pointed out that many wills contain charging clauses. These are clauses which empower a professional person, such as a solicitor or accountant, who may also be an executor, to charge a professional rate for work done in the administration of the estate.33 Depending on the clause, this may include charges not only for professional work, but also for normal ‘time and pain and trouble’. The principles of knowledge and approval, discussed in Chapter 3, and particularly those relating to suspicious circumstances, are equally applicable to such clauses.34

Liabilities Rights of beneficiaries during administration 15.10

Prior to the discussion of the liabilities, it may be helpful to consider

the legal position of the beneficiaries during administration. The basic position is that the beneficiaries, during administration, do not have a proprietary interest in the assets of the estate. Their rights are thus subsidiary to those of the personal representative for the reason that it is only after the personal representative has undertaken the duties of collecting the assets and paying the debts so that the net estate (to be distributed to the beneficiaries) may be ascertained. This position was authoritatively established by the Privy Council in Commissioner of Stamp Duties (Qld) v Livingston35 and confirmed in Official Receiver [page 387] in Bankruptcy v Schultz.36 Nevertheless, the latter case also establishes that a beneficiary does have a right, or interest, in the due administration of the estate. Whatever the nature of this interest (generally a chose in action), it is clear that a beneficiary still has a right to secure proper administration, which is discussed immediately below. Of course, as a fiduciary, a personal representative is required to exercise powers with the requisite degree of prudence. A failure to do so will, subject to certain exceptions, render the personal representative personally liable to the loss arising from such a breach of fiduciary duty.37

Failure to fulfil duties: devastavit 15.11 Devastavit is an action deriving from the common law. It transcribes as a wasting or devastation of the assets, and renders the personal representative liable if there has been a failure to exercise reasonable care in causing damage to the estate.38 More generally, the action can comprise mismanagement of the estate. It is now generally accepted that there are three types of devastavit, viz: misappropriation of assets by the personal representative, maladministration

and failure to safeguard assets. The first category is self-explanatory, the second comprises cases where there has been misapplication of assets other than in the order provided by the will or statute,39 and unjustified expenses, and the third, obviously, is concerned with a failure to take reasonable steps to maintain the value of the estate and its assets.40

Administration action: equity 15.12 The court, in its equitable jurisdiction, may also order due administration of an estate, again generally where there has been maladministration. Due to procedural difficulties, a decree in modern times is now made rarely, and only in cases of extreme complexity.41

Keeping accounts and records 15.13 In many jurisdictions a personal representative may be required by a court to file an inventory of the estate with the court within a certain period.42 Furthermore, those interested in the estate have a right [page 388] to inspect the records regarding the estate in order to satisfy themselves of the proper administration of the estate.43

Relief from liability 15.14 This paragraph deals with the situation where a personal representative would otherwise be liable to either beneficiaries or creditors. In brief, relief may be sought in three situations: (1) where there is an express term in the will indemnifying the legal representative against any loss caused to the estate (but note that this indemnity does not bind the estate creditors); (2) where those interested in the estate, all being sui juris, consent to the breach;44 and (3) where a court relieves the legal representative from any liability with respect to the breach.

Defences 15.15 There are several special defences available to a personal representative in response to an action in devastavit. The plea of plene administravit may be raised where the personal representative can demonstrate that all of the assets of the estate that have come into the legal personal representative’s hands have been administered. Further, the legal personal representative may raise the defence of plene administravit praeter where all of the estate assets that have come into his or her hands have been duly administered aside from a stated amount that is available for satisfaction of the claimant’s entitlement.

1. 2.

3. 4. 5.

6. 7.

8. 9. 10.

11. 12. 13. 14. 15.

M’Leod v Drummond (1810) 17 Ves 152; 34 ER 59. Conveyancing Act 1919 (NSW) s 153; Administration and Probate Act 1958 (Vic) ss 38, 44; Succession Act 1981 (Qld) s 49(1); Trusts Act 1973 (Qld) s 32(1); Administration and Probate Act 1935 (Tas) ss 33, 39; Administration and Probate Act (NT) s 80; Trustee Act 1962 (WA) s 27; Administration and Probate Act 1929 (ACT) s 50; Administration and Probate Act 1919 (SA) s 51. Watkins v Cheek (1825) 2 Sim & do St 199 at 205; 57 ER 323; Re Verrell’s Contract [1903] 1 Ch 65. M’Leod v Drummond (1810) 17 Ves 152 at 154; 34 ER 59; Corser v Cartwright (1875) LR 7 HL 731. Collinson v Lister (1855) 20 Beav 365; 52 ER 359; Re Chancellor; Chancellor v Brown (1884) 26 Ch D 42; Knight v Knight (1884) 10 VLR (Eq) 195; Vacuum Oil Company v Wiltshire (1945) 72 CLR 319. Dowse v Gorton [1891] AC 190. See, for example, Trustee Act 1925 (NSW) s 27B; Trustee Act 1958 (Vic) s 13; Trusts Act 1973 (Qld) s 32; Trustee Act 1962 (WA) s 27; Administration and Probate Act 1935 (Tas) s 43; Administration and Probate Act 1929 (ACT) s 51A; Administration and Probate Act (NT) s 83. Dowse v Gorton [1891] AC 190. Re Ballman; Ex parte Garland (1804) 10 Ves 110. For a consideration as to what constitutes such a consent by the creditors, see Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; WA Trustee Executor & Agency Co Ltd v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1942) 44 WALR 64, affirmed by the High Court at 66 CLR 675. Dowse v Gorton [1891] AC 190. Re Hodges [1899] 1 IR 480; Re Bullock (1932) 5 ABC 241. Conversely, they may override an express prohibition preventing the personal representative from realising the business: Lillis v Lillis (1912) 29 WN (NSW) 91. Labouchere v Tupper (1857) 11 Moo PCC 198. Trustee Act 1925 (NSW) s 49; Trustee Act 1958 (Vic) s 19; Trusts Act 1973 (Qld) s 44; Trustee Act

16. 17. 18. 19.

20. 21. 22. 23. 24. 25. 26. 27. 28.

29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

1936 (SA) s 28; Trustee Act 1962 (WA) s 42; Trustee Act 1898 (Tas) s 24; Administration and Probate Act 1929 (ACT) s 68; Trustee Act (NT) s 21; Re Houghton; Hawley v Blake [1904] 1 Ch 622 at 625. Speight v Gaunt (1883) 22 Ch D 727. Fry v Tapson (1884) 28 Ch D 268. Wigley v Crozier (1909) 9 CLR 425; In the Will of Hinsch (1896) 17 LR (NSW) B & P 21. See, for example, Trustee Act 1925 (NSW) s 46; Administration and Probate Act 1958 (Vic) s 46; Trusts Act 1973 (Qld) s 33; Trustee Act 1962 (WA) s 30(1)(k); Administration and Probate Act 1935 (Tas) s 40; Administration and Probate Act (NT) s 81; Trustee Act 1957 (ACT) s 46. See the discussion in Croucher and Vines at [17.18]–[17.24]. Re Lepine; Dowsett v Culver [1892] 1 Ch 210 at 219. Re Hayes’ Will Trusts; Pattinson v Hayes [1971] 2 All ER 341. Octave Investments Pty Ltd v Knight (1979) 144 CLR 360 at 367. Re Wynn; Public Trustee v Newborough [1952] Ch 271. But note the additional and similar legislative provisions in some jurisdictions, for example, Administration and Probate Act 1919 (SA) s 69 and see Haines, Ch 25 for discussion. Robinson v Pett (1734) 3 PWMS 249; 24 ER 1049. (1912) 14 CLR 297. For a much more recent discussion of the historical developments see Atkins, as Executor of Godfrey v Godfrey [2006] WASC 83 per Le Meire J. (1912) 14 CLR 297 at 304 per Griffith CJ. Per Le Meire J in Atkins, as Executor of Godfrey v Godfrey [2006] WASC 83 at [17]. The statutory provisions are as follows: Probate and Administration Act 1898 (NSW) s 86; Administration and Probate Act 1958 (Vic) s 65; Succession Act 1981 (Qld) s 68; Administration and Probate Act 1919 (SA) s 70; Administration and Probate Act 1935 (Tas) s 64; Administration and Probate Act 1929 (ACT) s 70; Administration and Probate Act (NT) s 102; Trustee Act 1962 (WA) s 98. Will of Shannon [1977] 1 NSWLR 210; Re Gambling [1966] SASR 134. See, for example, Will of Sherringham (1901) 1 SR (NSW) 48; In Re Darling [1925] SASR 262. [1983] 1 NSWLR 195. See, for example, Estate of Taylor [1965] SASR 136 and discussion in Hutley at [11.2]. For example, see Hutley at [11.7]–[11.14] and Forms 11.04–11.06. [1977] NSWLR 210. [1965] AC 694. (1990) 170 CLR 306. See also Re Leigh’s Will Trusts [1970] Ch 277. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 707. Re Tankard [1942] Ch 69. For a recent example, see Bird v Bird (2013) II AST LR 225; [2013] NSWCA 262. For example, Partridge v Equity Trustees Executors & Agency Co Ltd (1947) 75 CLR 149. See, for example, Job v Job (1877) 6 Ch D 562. See the discussion in Croucher and Vines at [17.59]–[17.62]. See, for example, Probate and Administration Act 1898 (NSW) s 85; Administration and Probate Act 1958 (Vic) s 28; Administration and Probate Act 1919 (SA) s 56; Succession Act 1981 (Qld) s 52(1)(b); Administration Act 1903 (WA) s 43; Administration and Probate Act 1929 (ACT) ss 58– 60; Administration and Probate Act 1935 (Tas) ss 26, 56; Administration and Probate Act (NT) s

43. 44.

90. See, for example, Re Schilling [1995] 1 Qd R 696. In the Estate of Nixon (1903) 20 WN (NSW) 98.

[page 389]

Survivorship

16

Introduction 16.1 In both testate and intestate succession, establishing the order of death may be of utmost importance. There is, of course, a legal principle that the entitlement of any person to succeed to the deceased’s estate, whether testate or intestate, will necessitate proof of survivorship. In testate succession, the testator and a beneficiary, or indeed, one or more beneficiaries, may die in circumstances that it is uncertain which died first. In this respect, the doctrine of lapse, discussed in detail above, depends upon the beneficiary predeceasing the testator, just one instance where complications may arise if the order of death is uncertain. In respect to intestate succession, the most common complication is where the intestate and the spouse of the intestate have died again in circumstances rendering it uncertain which of them died first. Again, the intestate’s children may be missing at the time of the intestate’s death, so whether they survived the intestate may be unclear.1 The legal response to these problems is discussed immediately below.

Commorientes 16.2 Commorientes is concerned with the legal situation where a testator or beneficiary die in circumstances where it is uncertain which died first. The position at common law prior to statutory intervention, was that in these circumstances there was no presumption of the order of death. Thus, at

common law, it was necessary for those who asserted a specific order of death to prove that on the balance of probabilities. The difficulty of so doing is well illustrated by the decision of the South Australian Supreme Court in In Re Trenaman; Public Trustee v Hartmann.2 There an elderly mother and her son were found dead together in their house. They both died of carbon monoxide poisoning, with careful sealing of the room [page 390] and gas jets turned on. Under their wills, the distribution of their estates depended upon whether either, and if so which, of them survived the other. It was held on the facts the evidence was insufficient to establish that either of them died before the other. The consequence was that his Honour fashioned the order to the effect that the survivorship issue was to be treated as a matter incapable of determination.

Legislative provisions 16.3 The obviously unsatisfactory legal nature of the result, and its anticipation, has led to all jurisdictions except South Australia enacting commorientes legislation. The genesis of the legislative provisions was well articulated by Lord Simonds in the House of Lords decision in Hickman v Peacey3 (commenting on the common law position): Previously, if A and B died in a common calamity, it was necessary for the representatives of that one of them who claimed to be interested in the estate of the other under his will or as upon his intestacy, to prove that he was the survivor. If they did not prove it the claim failed. In the not uncommon case where each of them was interested under the will or as upon the intestacy of the other, neither of them could take any interest unless his survivorship was proved. It followed that in such a case the estate of A had to be administered upon the footing that B did not survive him and the estate of B upon the footing that A did not survive him, a result which could be stated in a compendious form by saying that the estates of A and B were to be administered as if they had died at the same time. Survivorship was a fact to be proved like any other fact. There was no presumption of it founded on age or sex or any other factor. So also there was no presumption of death at the same time. This was the sum of the law on this

question …

In all jurisdictions except South Australia, there is legislation which provides for a statutory order of death where the order of death is uncertain. In these cases, the general rule is that death should be presumed to have occurred in order of seniority. Thus, in New South Wales, Queensland, Victoria and Tasmania the statutory provisions provide for a presumption in these circumstances. Section 35 of the Conveyancing Act 1919 (NSW) is typical. It provides as follows: Where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the older.4

Judicial considerations 16.4 There has been some judicial consideration of the statutory provision, though not extensive. First, the authorities are unanimous in establishing that the section does not absolve the court of the task of [page 391] weighing all evidence to ascertain, without resource to the presumption, which of the two [or more] persons died first.5 Second, and following from the above, while the presumption will not be invoked if evidence is advanced which establishes the precise order of death, the standard of proof, at least in Australian law,6 is that the order of death must be established according to the usual civil standard, that is, on the balance of probabilities. In such case, the presumption is not engaged, but is engaged only if no finding can be made either way. The matter arose and was argued in the Supreme Court of Victoria decision of Re Zappullo (decd).7 The contention in that case was that the presumption of survivorship according to seniority arose in all cases where there was no certainty, as distinct from a probability, as to the order of survivorship.

His Honour referred to the decision of Herring CJ in Re Comfort,8 and that of Re Plaister; Perpetual Trustee Co v Crawshaw,9 and held that despite the use of the word ‘uncertain’, the section only applied where a court was unable, on the balance of probabilities, to come to a conclusion as to the order of the deaths. To exclude the operation of the section it was not required that it be proved affirmatively that one had survived the other. His Honour concluded as follows: The proposition that it was the intention of s 194 to fill a gap in the law by providing an artificial presumption as to the order of deaths in all cases where apart from such a presumption the court could reach no conclusion as to survivorship, and that the section should be construed as effective to fill this gap, played an important part in the majority decision of the House of Lords in Hickman v Peacey [1945] AC 304; [1945] 2 All ER 215. From its language the section contemplates successive deaths, not simultaneous deaths, but in Hickman v Peacey the majority held that it applied where the evidence suggested simultaneous deaths, because otherwise it would have failed to fill the gap in the law which arose where the deaths appeared to be simultaneous just as much as where they were successive deaths, but insufficient evidence as to which died first. This approach to the construction of the section — of having regard to the mischief or defect in the law which it was designed to cure — supplies, I would think, a strong reason for construing it as not applying to a case where there was no gap to be filled; that is, to a case where, as the law then stood, there was no need to have recourse to any artificial statutory presumption to reach a decision as to the order of deaths.10

[page 392] Third, and as pointed out by Adam J in Re Zappullo (decd)11 in the quotation immediately above, it was not necessary to prove that the parties in question died in a common disaster or simultaneously. In Hickman v Peacey,12 Lord Macmillan stated: Can you say for certain which of these two dead persons died first? If you cannot say for certain then you must presume the older to have died first. It is immaterial that the reason for your inability to say for certain which died first is either because you think they both died simultaneously, or because you think they died consecutively, but you do not know in what sequence.13

Fourth, if the statute is engaged there is no further residual discretion in the court to depart from the application of the rule, in for example, cases of

fairness and justice.14 Fifth, it has been held that the section cannot be applied where one of the deaths is presumed under the common law, so that it is limited to circumstances where a person’s death occurs in known circumstances, and does not apply to the presumption of death under the seven-year absence rule. The relationship between the two is considered in more detail below. It remains to consider the legal position in the Australian Capital Territory, the Northern Territory and Western Australia. The legislation15 in all three jurisdictions provides that there is presumption of death in order of seniority, although that presumption is overridden in respect to the devolution of the property concerned. Thus, as Hutley points out, if the order of deaths is uncertain, the property of each devolves ‘as if he or she has survived the other or others of them and had died immediately afterwards’.16 The effect of the provision is to preserve the gift; that is, to prevent the gift vesting in a beneficiary and then divesting immediately afterwards. These provisions are particularly helpful in the case of spouses, where the estate of each spouse is thus distributed separately.

Commorientes: 30-day survivorship provision 16.5 The complications, discussed above, may well be overcome by making a gift in a will contingent on the beneficiary surviving the testator by a specific period. In respect to testate estates, a 30-day survivorship provision, for example, may, in most cases, completely obviate any [page 393] consideration of the commorientes doctrine at common law in that it eliminates the need to ascertain who died first, particularly where the deaths have occurred in a common accident.17

Given these considerations, in all jurisdictions except South Australia and Western Australia, there are now statutory provisions providing that beneficial testamentary gifts are subject to a 30-day survivorship condition, except where the testator has expressed a contrary intention in the will. The Succession Act 2006 (NSW), in s 35 thus provides as follows: 35 Beneficiaries must survive testator by 30 days (1) If a disposition of property is made to a person who dies within 30 days after the testator’s death, or, if that or another period for survival appears in the will, within the period appearing in the will, the will is to take effect as if the person had died immediately before the testator. (2) This section does not apply if a contrary intention appears in the will. (3) A general requirement or condition that a beneficiary survive the testator does not indicate a contrary intention for the purposes of this section.18

These provisions thus have a major impact on the commorientes rule, as explained above, but also on the doctrine of lapse, discussed above in Chapter 9. The above discussion concentrates on testate succession, but there are similar developments in relation to a 30-day survivorship rule in respect to intestate succession, discussed in Chapter 10. Based upon similar considerations, it may be argued that the statutory presumption of death based upon seniority may not be appropriate, particularly in cases where spouses are concerned, in which case the estate of each spouse should be distributed separately. The intestacy legislation in a number of jurisdictions provides for a 30-day survivorship period, or similar. In New South Wales and Tasmania the statutory provisions19 state that a person will not be regarded as having survived an intestate unless that person is born after the intestate’s death and survives the intestate by at least 30 days, or is born after the intestate’s death after a period in the uterus that commenced before the intestate’s death and survives the intestate for at least 30 days after birth. Similarly, the Queensland provision20 provides as follows: Where a person entitled to take any part of the residuary estate of an intestate under this part does not survive the intestate for a period of 30 days that part of the residuary estate shall be treated as if that person had died before the intestate.

[page 394] In South Australia the same applies in the event that an intestate and his or her spouse or domestic partner die within 28 days of each other,21 and in the Northern Territory the statute provides that where an intestate and his or her spouse or de facto partner has died in circumstances rendering it uncertain which of them survived the other, the intestacy rules apply, as to the person entitled to the intestate estate, as if the spouse or de facto partner had not survived the intestate. There is no 30-day survivorship rule in that jurisdiction, but the provision obviously avoids the application of the commorientes rule in those circumstances.

Commorientes: joint tenancies 16.6 The common law position, which still applies in the absence of statutory intervention (as to which see immediately below) is that if joint tenants die in circumstances where the order of death is unable to be ascertained on the balance of probabilities, then there is no right of survivorship. Thus, the respective heirs of each joint tenant succeed to the property as joint tenants. This common law has now been altered by statutory provisions in New South Wales, Queensland, Victoria, Tasmania and the Australian Capital Territory.22 The effect of these statutory provisions is to provide the general commorientes rule that the younger is presumed to have survived the elder, and the general principles as to this principle, discussed above, are equally applicable to joint tenancies. Thus if A and B are joint tenants (in the absence of application of the forfeiture rule, discussed in Chapter 9) and A is older than B, and both die in circumstances which render their order of death uncertain, B’s estate will be solely entitled. In Western Australia and the Northern Territory, however, there is a different approach to the effect that the statutory provision23 provides where

there is uncertainty as to which joint tenant dies first, the property devolves as though the joint tenants held the property as tenants in common in equal shares. The practical effect of this, which is arguably a more equitable solution, particularly in the case where the joint tenants are spouses, is that if A and B are joint tenants, and die in circumstances which render the order of death uncertain, the right of survivorship, which would otherwise operate in the case of a joint tenancy, has no application. Thus, should A, being the elder, for example, and B die in a common calamity, survivorship does not operate in B’s favour. Rather, the estate would devolve in the normal manner as to tenants in common so that both the estate of A and B benefits as tenants in common in [page 395] equal shares. The common law position, discussed above, would appear to continue to apply in South Australia, in the absence of legislation.

Survivorship: presumption of death Context 16.7 There is a general common law rule to the effect that when it is proved that for a period of seven years, no news of a person has been received by persons who are likely to hear from him or her if alive and all appropriate inquiries have been made, then that person will be presumed to have died. The presumption is important in succession law, either to show a beneficiary is dead or that a testator or intestate is dead. Separate consideration is given to the position in New South Wales where there are unique statutory provisions: see 16.12 below.24

General principles

16.8 The presumption is only engaged where a court is unable to draw an inference of death from the facts given in evidence. There have been many cases where a death may be inferred, the most recent being the decision of Atkinson J of the Supreme Court of Queensland in Maynard v Estate of Maynard.25 There her Honour pointed out that whether or not a person is deceased is a question of fact, and it is not always necessary to wait seven years for a person to be held to be deceased, even where that person’s body has not been found. In that case, the deceased left his home in Queensland to travel on a surfing holiday in Bali. The evidence was that he arrived in Bali and checked into his accommodation, but never checked out and was not seen again after he had left that accommodation to go surfing. On that day, a fragment of his surfboard was recovered by a local dive master, and despite extensive searches over many days, his body was never recovered; and it was shown that he had not contacted his wife, his three children, any other member of his family or his friends nor operated any of his bank accounts. Her Honour held that his wife should be at liberty to swear the death and a grant of matters of administration upon intestacy should be made to his wife. Other similar cases which her Honour identified in the judgment were Re Bennett,26 where a diver went missing during a dive in South Korea and was presumed to have died. Re Mayne,27 where a member of a ship that was presumed sunk but whose body was never found, Mackay v Mackay,28 where a passenger on a ship that was wrecked was presumed dead, In Re Purton,29 where a flying boat pilot was found deceased by the court after not reaching [page 396] his destination when fleeing the impending Japanese invasion of Java, and Re Parker,30 where a man was washed into the sea from rocks while fishing. In none of those cases was there any necessity to resort to the seven-year rule, there being sufficient inference of death. However, if there is no inference of death, the family of the missing person must wait until seven years have

elapsed from the date of disappearance, and so obtain a grant of probate or letters of administration. 16.9 As pointed out by Gray J in Re Estate of Hills,31 the presumption of death is more accurately described as the displacement of the presumption of continuance of life.32 This is made clear from the oft-cited judgment of Dixon J of the High Court of Australia in Axon v Axon:33 When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts … If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.

Thus, provided that there are persons who would, if the missing person were alive, be likely to have seen or hear from him or her, or have learned of his or her whereabouts, and there is evidence that this has not occurred, and: … provided the court is satisfied that all due inquiries have been made, the legal presumption of death will arise unless there is acceptable affirmative evidence that the person was alive at some time during the seven year period.34

This was the view of Sachs J in Chard v Chard,35 where his Honour stated that, in the absence of statute, primarily the issue is one of fact and not a presumption of law, but acknowledged the exception. [page 397]

There are limitations to the principle. It has constantly been pointed out by the authorities that there is no presumption that death occurred at any particular time before the relevant legal proceedings, even if such proceedings take place after the seven-year period has expired: … the application of the rule does not establish death at any particular time. It only produces the result that, if a person had not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings. The rule does not bring about the result that the person is deemed to be dead at the end of the seven-year period.36

In the majority of succession cases, however, the precise time of death will not be critical, but there are some cases which have departed from this authority and fixed the point of death at the end of the seventh year of absence.37 Of course, any presumption of death that a court makes is rebuttable if evidence is shown that the person is likely to be alive or actually is so. Further, as pointed out by Gray J in Re Estate of Hills,38 an automatic presumption of fact does not arise even if seven years have elapsed without any sign of the person in question. However, if circumstances exist: … [s]uch that a particular person would have been heard of within that time then the presumption of continuance of life which is the only presumption which the law makes in such circumstances may be displaced.39

Matters of proof 16.10 There are four essential elements which must be found on the balance of probabilities.40 First, there is a necessity to show an absence of the missing person for at least seven years. Second, the missing person must not have been heard from in that time. Third, those who might have expected to have heard from the missing person must not have done so. Fourth, due inquiries must have been made. Each of these elements is addressed immediately below: (1) Necessity to show an absence of the missing person for at least seven years. This is self-evident. It is a question of fact, but can be supported by evidence relating to all three further elements. (2) Missing person must not have been heard from in that time. Evidence to support the

presumption should include the description, age and the circumstances of the presumed deceased and the circumstances of the disappearance or departure.41 [page 398] (3) Those who might have expected to have heard from the missing person must not have done so. Relevant facts may indicate that there is some justification for the missing person not being heard from during the time of disappearance by those who may have expected to have heard. Indeed, in the leading case of Axon v Axon,42 it appeared from all the evidence that the missing person was separated from his wife, avoiding a maintenance order, and in effect was a fugitive from her. Thus the courts are aware that there may be circumstances in which a person deliberately wishes to disappear from the life which he or she previously led,43 and this desire has been communicated to others. The fact that the families did not hear from them was not a matter which would point to a presumption of death.44 Apart from that, the evidence should include whether any letters have been received from the presumed deceased since their disappearance or departure, and if not, the last date of communication, but it is not every relative or friend who might have been expected to have heard from the missing person. As Campbell J pointed out in Gell v Gell,45 there would be scores of people with whom the missing person communicates from time to time in the course of daily life. Rather, the requirement: … seeks to identify the people with whom the person would be likely to communicate if he or she were indeed alive, had been missing, and had access to ordinary means of communication. It recognises that ordinarily, if a person goes missing certain people are likely to worry or wonder what has become of him or her, and that the missing person would be likely to contact one or more of those people if he or she were able.46 (4) Due inquiries must have been made. The applicant who wishes to displace the presumption of continuance of life and seeks a finding that the missing person is presumed to be dead must establish evidence that due inquires appropriate to the circumstances have been made.47 In Estate of Howard,48 for example, extensive searches were carried out, including advertisements in newspapers in four states and searches in the registers of births, deaths and marriages. There was a story occupying the front page of a daily newspaper relating to the disappearance and offering a substantial reward and a further story published in a Sydney newspaper. The searches were [page 399] fruitless. Similarly, in Re Estate of Hills,49 searches were carried out by the Queensland Missing Persons Bureau, the state in which the missing person was last seen alive, which included conversations with the father and de facto spouse of the missing person, inquiries of

the police in each state and territory, inquiries of the births, deaths and marriages registries throughout Australia, inquiries with the Department of Immigration and Multicultural Affairs, the Health Insurance Commission, Centrelink, all financial institutions throughout Australia, the Red Cross, the Queensland Electricity Board and a Supreme Court deed poll search for a record of any name change. None of these inquiries revealed information about the whereabouts of the missing person, nor did use of the print and electronic media relating to the disappearance during the initial investigation. Copies of the photograph of the missing person were made available to all state police forces as well as the National Missing Persons Unit in Canberra. The photograph was placed on the national missing persons’ poster, which has Australia-wide exposure. Despite this, the searches all proved negative. Of course, bank accounts and insurance policies should also be checked. The inquiries need not specifically relate to a certain period, and do not need to be made at intervals throughout the period of absence, but, as Hardingham, Neave and Ford point out,50 proof of inquiries at an earlier period prior to the actual application would tend to reinforce the presumption in that inquiries soon after a person’s disappearance may have been more fruitful.

Relationship between the common law presumption of death and commorientes 16.11 This matter has been addressed in a number of decisions. In Re Albert,51 the question was whether a nephew who had been last heard of in 1928 should be deemed, pursuant to s 184 of the Property Law Act 1958 (Vic) to have survived his aunt who died intestate in 1958, she being his senior. Normally, of course, while it could be presumed that the nephew was dead at the time of the application, it could not be presumed that he was dead in 1958, when letters of administration were granted. Lush J stated that ultimately the question depended on the construction of s 184, and particularly on the words ‘in the circumstances rendering’ in that section. He stated: They indicate that the section applies where two or more persons have died, where the circumstances of the death of each is known and where those circumstances render it uncertain which of them survived the other or others. [Here] nothing is known of the circumstances of death of one of the persons concerned, and the uncertainty which exists is, therefore, [page 400]

not one which arises from the circumstances in which that party died but from the fact that none of circumstances of death — time, place or cause — of one of the relevant persons is known at all. The condition of the operation of the section is that the circumstances of the two deaths, whether occurring together or separately, produce the uncertainty, the condition is not satisfied if the circumstances of one death are unknown.52

On the other hand, in similar circumstances, Helsham J of the Supreme Court of New South Wales, in In the Estate of Dixon,53 took the opposite view: Death which is presumed by reason of unexplainable absence is no less a fact because it arises by a presumption of law, and in my view is just as much a death falling within the terms of the section as any other death. I therefore hold that s 35 includes the case of death presumed from an absence of seven years, where the common law presumption of death applies.54

The matter was again considered by Waddell J of the New South Wales Supreme Court in Halbert v Mynar,55 which, with respect, correctly followed the decision of Lush J in Re Albert (decd).56 His Honour pointed out that the decision in Re Albert (decd) was not cited or considered in In the Estate of Dixon as the application was ex parte and the court did not have the advantage of argument on both sides. His Honour agreed that there are undesirable consequences of applying the section to a case of death presumed under the common law: These are the consequences of the position that in the case of such a presumed death that the deceased must, as a matter of law, be considered to have died at some unspecified time during a period which is not less than seven years and may be much longer depending on when the proceeding in which it is sought to apply the presumption commenced. If the construction proposed by Lush J is adopted the practical consequence is that the deaths in question will inevitably have taken place within a short space of time. It is unlikely that the legislation intended the section to determine arbitrarily the order of death of persons who have been separated by many years.57

Admittedly, the problem would probably not have arisen but for an expansive interpretation of the equivalent English provision by the House of Lords in Hickman v Peacey,58 where Viscount Simon LC particularly held that the section was not limited to multiple deaths arising out of ‘common disaster’.59

[page 401]

Grant of leave to distribute 16.12 In cases where the presumption of death is applied, the appropriate order is not that the missing person is no longer alive. A declaration in these circumstances is not appropriate.60 The practical problem which is most likely to arise in presumption of death cases is to protect the personal representative in relation to the distribution of the estate. In other words, ‘how can the personal representative be sure that all of the relatives have been identified and located?’61 To this effect, there is a procedure for a grant of leave to distribute the estate on the basis of what is known to the court. As stated by Gavan Duffy J in Re Watkinson (decd): There seems to be a well established practice and authority for the court, where the facts permit, without making any declaration as to the date of death, to make an order that the executor be at liberty to distribute the estate on the basis that the missing man is dead and died before the testator and died unmarried.62

The basis of the grant finds its origin in Re Benjamin; Neville v Benjamin.63 In that case the testator had 13 children of whom 12 survived him and one son was missing, having disappeared nine months before the testator’s death. After one inquiry, the Master was unable to ascertain whether the son was living or dead; that is, there was no particular point in time that death could be presumed or established on the evidence. The trustees of the estate sought permission to distribute the estate on the basis that the son had predeceased the testator. It was held by Joyce J that the son must be presumed dead, and his Honour gave permission for the estate to be distributed on that basis. However, no declaration to the effect that he had died on a certain date was made, thus leaving the possibility of the representative of the beneficiary making a claim if evidence of his death was later forthcoming. These orders, now known as Benjamin orders, have readily been utilised in Australian law in cases involving both testate and intestate succession.64 The

form of the actual order in Re Benjamin; Neville v Benjamin65 was as follows: In the absence of any evidence that X survived the testator, let the trustees of the testator’s will be at liberty to divide the share of the testator’s estate devised and bequeathed in favour of Y upon the footing that X was unmarried and did not survive the testator.

The basis of the order is obviously that that distribution of estates should not be delayed for an indefinite period and that personal [page 402] representatives or trustees must ultimately be given permission to distribute the estate. Before the order is made, however, there must be satisfactory evidence (as there was in Benjamin itself) that there is an impossibility of proof that the missing person is either alive or dead, and the usual requirements as to evidence relating to presumption of death (even where the presumption is not utilised), discussed above, such as due inquiries will be applicable.66 Further, as In Re Gess; Gess v Royal Exchange Assurance67 points out, the making of a Benjamin order, while protecting the personal representatives, will not protect those who take a distribution by virtue of the order. They may be subject to equitable claims if there is evidence forthcoming to the effect that the missing person did in fact survive, or left issue surviving the testate or intestate.68 Finally, as in West v Weston,69 a Benjamin order may be particularly useful where a gift in a will is to a particular class and the members of the class are numerically considerable. The matter is given judicial consideration in the decision of Ross J in Re Will and Estate of Meyerstein and State Trustees Ltd.70

Position in New South Wales: Trustee and Guardian Act 2009 16.13 Significant amendments were made to the then Protected Estate Act 1983 (NSW) by the Protected Estate Amendment (Missing Persons) Act 2004

(NSW), which commenced on 17 December 2004. A successful application under the amended legislation was first made in Re Flint,71 a case in which his Honour Young CJ in Eq delivered judgment which was heard in chambers without appearance of any person, so that there was no opportunity to consider the legislative provisions in detail. That opportunity arose, however, in Gell v Gell,72 in the same year, where extensive judicial guidance as to its application was provided in the judgment of Campbell J. The Protected Estates Act 1983 (NSW) was, however, repealed in 2009 by the Trustee and Guardian Act 2009 (NSW), which Act however repeated the provision of the Protected Estate Act 1983 (NSW) in respect to missing persons in s 54. As that legislation is almost identical (with minor structural but not substantive changes) it is strongly submitted that the decision in Gell v Gell73 is still of relevance to the interpretation of the latest provision. Effectively, and without considering the legislation in detail at this stage, the Act permits the Supreme Court to deal with the assets of a missing person as if that person needed protection on the basis that he or she was unable to manage his or her affairs. The legislation allows [page 403] people interested to apply to the Supreme Court for the appointment of a manager of a missing person’s affairs after he or she has been missing for more than 90 days, thus in some cases obviating the need to prove the common law disappearance of more than seven years under the presumption of death, discussed above. The Second Reading Speech of the then AttorneyGeneral of New South Wales, Mr Bob Debus, to the Legislative Assembly, when introducing the 2004 legislation, sufficiently explains its purpose: … Presently, family or friends can only manage the affairs and estates of missing people after obtaining a grant of probate from the Supreme Court. This means the missing person is presumed to be dead. Unless there is strong evidence that the person had died, probate may not be granted until they have been missing for seven years.

The presumption of death is particularly distressing for families and friends of missing people because they usually do not want to accept, let along prove, that the person is dead. It is also unsuitable for the majority of missing people, who are subsequently found alive. The process takes too long to provide any practical, timely assurance to people wishing to look after an estate in the short or medium term. More than 8,000 people go missing in New South Wales each year: 70 per cent are found within three days, 86 per cent are found within two weeks and 99.7 per cent are located overall. Longterm missing people are those who have been missing for more than a year. In New South Wales there are more than 500 long-term missing people. The Government, in consultation with families and friends of missing people, has developed a clear and simple legal procedure for applications to be made to allow others to manage property belonging to missing people.74

Thus, s 54 of the NSW Trustee and Guardian Act 2009 relevantly provides: 54 Declaration and order where person missing (1) The Supreme Court may: (a) declare that a person is a missing person and order that the estate of the person (or any part of it) be subject to management under this Act, and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee. (2) A declaration and order may be made for the estate of a person under this section only if the Supreme Court is satisfied that: (a) the person is a missing person, and (b) it is not known whether the person is alive, and (c) all reasonable efforts have been made to locate the person, and (d) the person’s usual place of residence is in this State, and (e) persons residing at the place where the person was last known to reside, or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days, and (f) it is in the best interests of the person to do so. [page 404] (3) An application for a declaration and order under this section in relation to a person may be made by any of the following persons: (a) the spouse or de facto partner of the person, (b) a relative of the person, (c) a business partner or employee of the person, (d) the Attorney-General, (e) the NSW Trustee, (f) any other person who has an interest in the estate of the person.

The approach to the legislative provision, as stated by his Honour Campbell J in Gell v Gell,75 is one of appreciation of the effect of a declaration and order. His Honour described it as a ‘serious matter’ and the fact that the missing person is not in a position to present evidence means that the court is unlikely to be ‘satisfied by slight proof’. In cases of particular doubt or difficulty the court would have power to arrange for someone to represent the missing person for the purposes of the litigation.76

Matters of proof 16.14 As can be seen from the legislative provisions set out above, there are five matters of proof that must be established for a declaration and order to be made. The first is that the court must be satisfied that the person is indeed a missing person. The legislative provision does not contain any definition of a ‘missing person’, but the second element provides that the court must be satisfied that it is not known whether the person is alive. This requirement was described by Campbell J in Gell v Gell,77 as being unhelpful, expressed in the passive voice, and providing the response ‘not known by whom?’ His Honour continued: When a statute is imprecise in this way, correct construction of the statute does not necessarily require that only one answer be given to that question. In the context, it seems to me that the people whose lack of knowledge of whether the person is alive needs to be established are people who ordinarily would be expected to have seen, or to have heard from, or of, the person. Given that missing people are ordinarily reported to the police, who then come under an obligation to find out what they can about the whereabouts of the person, in practice that will usually include also that part of the police force whose task it is to investigate the whereabouts of missing people. The NSW Police force has a Missing Persons Unit which specialises in locating missing people.

Further, his Honour pointed out (at [9]) that proof that it is not known whether a person is alive involves proof that it is not known that the person is dead, and that results of police inquiries will, in most circumstances, satisfy this requirement. The third requirement, viz that ‘all reasonable efforts have been made to locate the person’ mirrors that at common law under the presumption of

death, discussed above, where due inquiries must be made. The case [page 405] law on that topic would be equally applicable under the statutory provision.78 The fourth requirement, that the person’s usual place of residence is in this state, is legally self-explanatory and will require evidence of where the person resided, and the circumstances of that residence over a sufficiently long period of time to establish the fact. The final matter of proof, viz ‘that persons residing at the place where the person was last known to reside or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days’ also approximates the requirement of the common law presumption of death requirement that those who might have expected to hear from the missing person have not done so. There is the usual caveat that: … on some occasions people quite deliberately make themselves disappear, sometimes with the intention of starting a new life. The caution which the legislation requires before an order is made could be compromised if the court came to the view that the likelihood was that a particular person had deliberately disappeared, and therefore would be likely to communicate with nobody, and therefore no evidence of enquiries to establish the [statutory provision] needed. Rather, giving effect to the policy and purpose of the legislation seems to me to require that the enquiry proceed on the assumption that the person in question is not making him or herself disappear deliberately.79

‘Best interests’ under s 54 16.15 Under s 54(2)(f) of the Act, the court must be satisfied that ‘it is in the best interests of the person’ to make the declaration and order. This requirement was also examined by Cambell J in Gell v Gell80 who pointed out that the primary factor for consideration is preservation and maintenance of the missing person’s property and dealing with the business affairs of that person in a way that is best suited to preserve, maintain and enhance those assets as well. Of course, there is also a wider context of ‘best interests’ which

takes into account the general management provisions contained in Ch 4 of the NSW Trustee and Guardian Act 2009 itself, and particularly those contained in s 59. Finally, it should be noted that the legislation: … does not permit distribution of the estate of a missing person in the way which is possible after a grant of probate or letters of administration is made on presumption of death. Rather, it permits a limited kind of use of the property of the missing person, of the kind the missing person would be likely to approve if he or she could be consulted, to protect, preserve and advantageously deal with that property, and to support the family of the missing person.

As a final comment, it may be confidently asserted that the legislation addressed the concerns of those critics who argue that the seven-year [page 406] period at common law is absurdly long. As noted by his Honour Waddell J in Eq in Halbert v Mynar81 as long ago as 1940, the learned author of Wigmore on Evidence82 had this to say about the rule and the period: Since that figure was adopted, conditions of social life have radically changed, by the multiplication of rapid and easy means of communication and of investigation; three thousand sheriffs, ten thousand chiefs of police, thousands of local charitable societies, any number of private detective agencies, are available for aid in tracing and locating the absentee if alive. In short, the seven-years-absence-unheard-from rule is arbitrary, unpractical, anachronistic, and obstructive. The circumstances of each case should be the basis for decision, and there should be no fixed or uniform rule.83

1.

2. 3. 4.

5.

Hardingham, Neave and Ford point out (at 3601) that the matter may be more complex, in that in the case of a missing person, there was the issue of whether they had married and had children of their own. [1962] SASR 95 per Napier CJ. See also Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397. [1945] AC 304 at 341. See also Lord Macmillan at 321. See also Succession Act 1981 (Qld) s 65 (but note that under this section the younger is deemed to have survived the elder by one day only); Property Law Act 1958 (Vic) s 184; Presumption of Survivorship Act 1921 (Tas) s 2. Per Macaulay J in Re Rowlings (decd); Fraser v Thom [2010] VSC 626 at [10]. See also Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 at 552 (Harvey CJ in Eq). NSW Trustee

6.

7. 8. 9. 10. 11. 12. 13. 14.

15. 16.

17. 18.

19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

and Guardian v State of New South Wales [2015] NSWSC 1121 at [3]–[38]. There is some suggestion in United Kingdom law, that the standard of proof is higher, negating any reasonable element of doubt. See Re Bate [1947] 2 All ER 418 and the discussion of this issue by the House of Lords in Hickman v Peacey [1945] AC 304; [1945] 2 All ER 215. [1966] VR 390 per Adam J. [1947] VLR 237. (1934) 34 SR (NSW) 547 at 552. [1966] VR 390 at 393–4. [1966] VR 390 at 393–4. [1945] AC 304. [1945] AC 304 at 432–4. Re Brush (decd) [1962] VR 596. In some jurisdictions, for example Victoria (Property Act 1958 s 184), there is a provision that the presumption applicability is ‘subject to any order of the court’. The meaning of this phrase is obscure, but has been held in the above decision, to not reserve to the court any general discretion. See also Re Rowlings (decd); Fraser v Thom [2010] VSC 626 at [13] per Macaulay J. Administration and Probate Act 1929 (ACT) s 49P; Civil Law (Property) Act 2006 (ACT) s 13; Law of Property Act (NT) ss 216 and 217; Property Law Act 1969 (WA) s 120. Hutley at [6.2]. It should be noted that the principle in the Australian Capital Territory only applies to land, leaving a lacunae in respect to personalty: Civil Law (Property) Act 2006 (ACT) s 213. Such a provision also eliminates the need for a double administration of the estate, and thus saves significantly on costs of administration. See also Succession Act 1981 (Qld) s 33B; Wills Act 1997 (Vic) s 39; Wills Act 2008 (Tas) s 49; Wills Act 1968 (ACT) s 31C; Wills Act (NT) s 34. All are in mostly identical language to the New South Wales provision. Succession Act 2006 (NSW) s 107(1); Intestacy Act 2010 (Tas) s 8(1). Succession Act 1981 (Qld) s 35(2). Administration and Probate Act 1919 (SA) s 72E. Conveyancing Act 1919 (NSW) s 35; Succession Act 1981 (Qld) s 65; Property Law Act 1958 (Vic) s 184; Presumption of Survivorship Act 1921 (Tas) s 2; Civil Law (Property Act) 2006 (ACT) s 213. Property Law Act 1969 (WA) s 120(d); Law of Property Act (NT) s 216(2)(d). NSW Trustee and Guardian Act 2009 (NSW). [2015] QSC 144. (2006) QSC 250. [1858] I 5W + TR II; (1858) 164 CR 606 (1907) 18 WN(NSW) 266. [1943] QWN 33. (1995) 2 Qd R 617. [2009] SASC 176 at [3]. Citing Re Westover (1987) 139 LSJC 115 at 117 (Legoe J). (1937) 59 CLR 395 at 404–5. Per Master Holt in Re White [2001] TASSC 7 at [3].

35. 36. 37.

38. 39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49.

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

[1956] P 259 at 272. Per Latham CJ in Axon v Axon (1937) 59 CLR 395 at 401. But note the criticism of this principle in Hickman v Peacey [1945] AC 304. See, for example, Re Westbrook’s Trusts [1873] WN 167; Chipchase v Chipchase [1939] P 391; and see generally Stone, ‘The Presumption of Death: A Redundant Concept?’ (1981) 44 Mod LR 516; Trietel, ‘The Presumption of Death’ (1954) 17 MLR 530. (2009) 263 LSJS 458; [2009] SASC 176 at [7]. Per Legoe J in Re Estate of Westover (1987) 139 LSJS 115 at 117. See Estate of Howard (1996) 39 NSWLR 409 at 413 per Cohen J. Per Gray J in Re Estate of Hills [2009] SASC 176 at [8]. (1937) 59 CLR 395. See, for example, Watson v England (1844) 14 Sim 28; 60 ER 266; Wills v Palmer (1905) 53 WR 169; Re Lidderdale (1912) 57 SJ 3. Per Gray J in Estate of Hills [2009] SASC 176 at [8]. (2005) 63 NSWLR 547. His Honour was there discussing the legislative provision of the then Protected Estates Act 1983 (NSW) (now repealed), as to which see further below, but the statutory requirement was not dissimmilar to that at common law. (2005) 63 NSWLR 547 at 551. See also Re Curran [2010] VSC 455 per Ferguson J. Chard v Chard [1956] P 259. (1996) 39 NSWLR 409. (2009) 263 LSJS 458; [2009] SASC 176. Of course, modern technology in the digitised age is likely to provide additional means by which a person’s continued existence or otherwise is determined. See Daley, ‘Proof of Death in the Global Age’ [2016] Law Inst J 35. At [3603]. [1967] VR 857. [1967] VR 857 at 880. [1969] 2 NSWR 223. [1969] 2 NSWR 223 at 226. In the extract, ‘s 35’ refers to s 35 of the Conveyancing Act 1919 (NSW). [1981] 2 NSWLR 659. [1967] VR 857. [1981] 2 NSWLR 659 at 669. [1945] AC 304. [1945] AC 304 at 314–15. Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 at [22] per Beech J, citing Re Green’s Will Trusts [1985] 3 All ER 455. Per Ross J in Re Will and Estate of Meyerstein (decd) and State Trustees Ltd (2009) 4 ASTLR 180; [2009] VSC 564 at [13]. [1952] VLR 123 at 126. [1902] 1 Ch 723. See, for example, Re Hickey [1925] VLR 270; Re Dolling [1956] VLR 535; Re Albert [1967] VR 875 (intestacy). Bickford v Benson [2015] WASC 161. In Western Australia, the jurisdiction to make a Benjamin order is in the Trustee Act 1962 (WA) s 66.

65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

[1902] 1 Ch 723 at 726. Re Wallace; Billinghurst v Burke (1908) 25 WN (NSW) 161a; Re Carr [1942] QSR 182. [1942] Ch 37. See, for example, Re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 533. (1998) 44 NSWLR 657. (2009) 4 ASTLR 180; [2009] VSC 564. [2005] NSWSC 560. (2005) 63 NSWLR 547. (2005) 63 NSWLR 547. Parliamentary Debates, Legislative Assembly of New South Wales, 20 October 2004, at 11,683. (2005) 63 NSWLR 547 at 549. (2005) 63 NSWLR 547 at 549. (2005) 63 NSWLR 547 at 549. There are a number of practical suggestions as to the nature of these inquiries suggested by Campbell J in Gell v Gell (2005) 63 NSWLR 547 at 550. Per Campbell J in Gell v Gell (2005) 63 NSWLR 547 at 551. Per Campbell J in Gell v Gell (2005) 63 NSWLR 547 at 552–3. [1981] 2 NSWLR 659 at 664. 3rd ed, 1940. 3rd ed, 1940, p 553.

Index References are to paragraph numbers

A Aboriginal persons see Indigenous persons Ademption application of doctrine …. 9.9 changes in nature of gift …. 9.10 contracts and options …. 9.13 date of death of testator …. 9.14 equitable ademption …. 9.30 exceptions …. 9.11 fraudulent disposals …. 9.11 general principle …. 9.8 not by testator …. 9.11 mental incapacity …. 9.11, 9.12 statutory provisions …. 9.12 without testator’s knowledge …. 9.11 overview …. 7.7, 9.5, 9.8, 14.39 republication of wills …. 7.7 shares …. 9.10 Administration cessate grants …. 13.13

cum testamento annexo …. 1.2, 12.21, 12.23, 12.25, 13.2 de bonis non …. 13.5 durante absentia …. 13.7 general administration …. 12.21, 12.24, 13.2 priority for entitlement …. 12.24 jurisdiction of court …. 12.22 limitations …. 13.4 minority of executor …. 13.6, 13.13 overview …. 1.3 pending legal proceedings …. 13.9 purposes of the suit …. 13.10 Administrative process see Personal representatives Administrators appointment …. 1.2, 12.21 strangers …. 12.25 cum testamento annexo …. 1.2 duties …. 1.3, 14.1 funeral arrangements …. 14.5 disposal of ashes …. 14.6 funeral expenses …. 14.13 incapacity of entitled person …. 13.8 overview …. 12.1 removal from office …. 12.26, 14.45 title to deceased’s assets …. 13.1 ‘relation back’ doctrine …. 13.1 vesting of property …. 13.1 Adopted children entitlement on intestacy …. 10.9

family provision applications …. 11.4 gifts to children …. 8.32 Alteration of wills see also Revocation of wills; Statutory wills before execution …. 6.29, 6.32 contracts not to alter …. 2.25 duly executed wills …. 6.30, 6.32 effect of amendment …. 6.32 obliterations …. 6.31, 6.32 apparent, meaning …. 6.31 overview …. 6.28 partial revocations …. 6.31, 6.32 Armchair principle …. 8.8, 8.24, 8.25, 8.26 Artificial conception entitlement on intestacy …. 10.9 family provision applications …. 11.4 gifts to children …. 8.32 Australian Capital Territory commorientes …. 16.4 construction of wills …. 8.27 transgender persons …. 8.34 contemplation of marriage …. 6.13, 6.17 forfeiture for killing …. 9.26 intestacy …. 10.6, 10.20 hotchpot …. 10.15 judicial dispensing powers …. 5.12 privileged wills …. 5.40 privileged testator, definition …. 5.41 rectification powers …. 3.35

probable intentions …. 3.37 unforeseen circumstances …. 3.34, 3.37 revocation by divorce …. 6.25, 6.27 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.11 Australian Law Reform Commission Aboriginal customary laws .… 1.12

B Bank accounts donatio mortis causa …. 2.19 joint accounts …. 2.15, 2.24 ‘all property’ contracts …. 2.24 Bankruptcy see also Insolvent estates capacity as executor …. 12.16 Beneficiaries overview …. 1.2 predeceasing testator see Lapse rights …. 2.3, 15.10 Bequests see Legacies Bona vacantia …. 1.2, 10.14 Burden of proof see Onus of proof

C Capacity see Mental capacity; Statutory wills Children adopted children …. 8.32, 10.9, 11.4 appointment as executor …. 12.12 administration during minority …. 13.6, 13.13

artificial conception …. 8.32, 10.9, 11.4 entitlement on intestacy …. 10.2, 10.6, 10.8 grandchildren …. 10.10 hotchpot …. 10.15 issue, definition …. 10.9 family provision applications …. 11.4 gifts to children …. 8.32 class gifts …. 8.35 illegitimate children …. 8.32, 10.9, 11.4 making a will …. 3.2 step-children …. 8.32, 11.4 Choses in action donatio mortis causa …. 2.19 Civil partnerships revocation of wills …. 6.12 Class gifts class closing rules …. 8.35 lapse …. 9.21 overview …. 8.35, 9.21 Commercial debts satisfaction by legacies …. 9.28 Commorientes common law …. 16.2, 16.3 joint tenancies …. 16.6 overview …. 13.3, 16.2 presumption of death, and …. 16.11 statutory provisions …. 16.3 judicial consideration …. 16.4

survivorship periods …. 16.5 Conditional wills …. 3.10 Conflict of laws …. 1.14, 1.15 Construction of wills admissibility of extrinsic evidence …. 8.2, 8.23 armchair principle …. 8.24, 8.25, 8.26 common law …. 8.24–8.26 direct extrinsic evidence …. 8.24, 8.26, 8.27 equivocations …. 8.24, 8.26, 8.27 statutory modification …. 8.27 ambiguous words and clear gifts …. 8.20 armchair principle …. 8.8, 8.24, 8.25, 8.26 limitations …. 8.25 surrounding circumstances …. 8.25 avoidance of intestacy …. 8.16, 8.17 changing words …. 8.14 construed as whole …. 8.5 courts of construction …. 1.4, 8.2 admissibility of evidence …. 8.2, 8.23 custom …. 8.11 dictionary principle …. 8.7 ejusdem generis …. 8.19 examples of problems …. 8.1 express intention of testator …. 8.4 construed as whole …. 8.5 falsa demonstratio non nocet, cum de corpore constat …. 8.18 general principles …. 8.4 changing words …. 8.14

construed as whole …. 8.5 custom …. 8.11 dictionary principle …. 8.7 inadvertent insertions …. 8.13 more than one meaning …. 8.9 omission of words …. 8.12 secondary meanings …. 8.7, 8.8 technical words …. 8.10 transposition of words …. 8.14 usual or ordinary meanings …. 8.6, 8.7, 8.9 gifts of property …. 8.1, 8.36 ambiguous words and clear gifts …. 8.20 statutory provisions …. 8.39 types of gifts …. 8.38 will speaks from death …. 8.37 gifts to persons …. 8.1, 8.29 ambiguous words and clear gifts …. 8.20 children …. 8.32, 8.35 class gifts …. 8.35 date of will …. 8.30 description of person …. 8.29 relations …. 8.31, 8.32 spouses …. 8.33 transgender persons …. 8.34 inadvertent insertions …. 8.13 inconsistency and conflict …. 8.20 rule in Lassence v Tierney …. 8.22 rule of despair …. 8.21

omission of words …. 8.12 overview …. 1.4, 8.1, 8.3 rules of construction …. 8.3 secondary meanings …. 8.7 surrounding circumstances …. 8.8 statutory rectification, and …. 3.39 subsidiary principles …. 8.15 ambiguous words and clear gifts …. 8.20 avoidance of intestacy …. 8.16, 8.17 ejusdem generis …. 8.19 falsa demonstratio non nocet, cum de corpore constat …. 8.18 rule in Lassence v Tierney …. 8.22 rule of despair …. 8.21 ut res magis valeat quam pereat …. 8.17 surrounding circumstances …. 8.8, 8.9, 8.25 technical words …. 8.10 transposition of words …. 8.14 undesigned insertions …. 8.13 usual or ordinary meanings …. 8.6 dictionary principle …. 8.7 more than one meaning …. 8.9 ut res magis valeat quam pereat …. 8.17 void dispositions …. 8.28 Constructive trusts contracts …. 2.21, 2.27, 2.28 donatio mortis causa …. 2.20 mutual wills …. 2.28, 2.29

Contents of will see also Mistake knowledge and approval …. 3.11, 3.13 mistake as to legal effect of words …. 3.29 onus of proof …. 3.11, 3.13, 3.15, 3.18 presumption …. 3.11, 3.13, 3.15 reading over will …. 3.12, 3.13 suspicious circumstances …. 3.12, 3.14, 3.15, 3.16 overview …. 3.1, 3.11 reading over will …. 3.12, 3.13 suspicious circumstances …. 3.12, 3.14, 3.18 delay …. 3.15 fraud, distinction …. 3.18 indirect benefits …. 3.15 other circumstances …. 3.16 preparation by beneficiary …. 3.15, 3.16 severance …. 3.17 undue influence, distinction …. 3.18, 3.19 Contracts ademption …. 9.13 ‘all property’ …. 2.24 joint bank accounts …. 2.24 constructive trusts …. 2.21, 2.27, 2.28 enforceability …. 2.21, 2.27 family provision claims …. 2.26, 11.22 formalities …. 2.27 legacies …. 2.22, 2.23 not to revoke or alter wills …. 2.3, 2.25, 6.1 mutual wills …. 2.28

overview …. 2.21 proprietary estoppel …. 2.21, 2.27 residue …. 2.24 sale of land …. 2.27 specific property …. 2.23, 2.26 types of contracts …. 2.21 Corporations executors, as …. 12.15 Costs statutory wills …. 4.14 Courts of construction admissibility of evidence …. 8.2, 8.23 historical background …. 8.2 jurisdiction …. 1.4 overview …. 1.4, 8.2 Courts of probate admissibility of evidence …. 8.2, 8.23 functions …. 1.3, 8.2 jurisdiction …. 1.3, 12.11, 12.22 historical background …. 1.8, 1.9 mistake …. 3.30–3.33 removal of personal representative …. 12.26 mistake …. 3.31, 3.34 insertion or alteration of words …. 3.33 limits on jurisdiction …. 3.32 omission of words …. 3.30, 3.31, 3.32 overview …. 1.3 Crown

entitlement on intestacy …. 10.2, 10.14 Customary laws see Indigenous persons

D De facto relationships definition …. 11.3 existence of relationship …. 11.3 family provision …. 11.3 intestacy …. 10.3 Death duties …. 1.10 Definitions advance …. 10.15 child …. 11.4 de facto relationship …. 11.3 dependant …. 11.5 divorce …. 6.27 document …. 5.18 donatio mortis causa …. 2.16 intestacy …. 10.1 issue …. 10.9 next of kin …. 10.13 offender …. 9.26 personal chattels …. 10.6 privileged testator …. 5.41 spouse …. 10.3, 11.3 will .… 1.2, 2.1 Devises classifications …. 9.2

overview …. 9.2 residuary devises …. 9.7 specific devises …. 9.3 Devisor …. 1.2 Disclaimer overview …. 9.22 relevant rules …. 9.23 Dispensing power see Judicial dispensing power Distribution of estate ademption …. 14.39 categories of dispositions …. 14.33 demonstrative legacies …. 14.37 failure of gift …. 14.39, 14.40 general legacies …. 14.35, 14.36 intestate estate …. 14.31 overview …. 14.30, 14.32 presumption of death …. 16.12 residuary gifts …. 14.38, 14.40 specific legacies …. 14.34 Divorce definition …. 6.27 revocation of wills …. 6.1, 6.20, 6.21 Australian Capital Territory …. 6.25, 6.27 New South Wales …. 6.22, 6.27 Northern Territory …. 6.24 Queensland …. 6.24 South Australia …. 6.25, 6.27 Tasmania …. 6.24

Victoria …. 6.23, 6.27 Western Australia …. 6.26 Doctrine of ademption see Ademption Doctrine of lapse see Lapse Doctrine of satisfaction see Satisfaction Domestic violence forfeiture for killing …. 9.24, 9.26 Donatio mortis causa conditional on death …. 2.18 constructive trusts …. 2.20 contemplation of death …. 2.17 definition …. 2.16 delivery …. 2.19 family provision …. 11.18 intention of donor …. 2.18 overview …. 2.16, 11.18 parting with dominion …. 2.19 real property …. 2.20 requirements for validity …. 2.16–2.19 revocation of gift …. 2.18

E Election example …. 9.33 overview …. 9.32 Equity ademption …. 9.30 constructive trusts see Constructive trusts

election …. 9.32, 9.33 history of succession …. 1.8, 8.2 rectification …. 3.28 satisfaction see Satisfaction undue influence …. 3.20 Evidence conditional wills …. 3.10 construction of wills …. 8.2, 8.23 armchair principle …. 8.24, 8.25, 8.26 common law …. 8.24–8.26 direct extrinsic evidence …. 8.24, 8.26, 8.27 equivocations …. 8.24, 8.26, 8.27 statutory modification …. 8.27 courts of construction …. 8.2, 8.23 courts of probate …. 8.2, 8.23 family provision …. 11.16 judicial dispensing powers …. 5.28 mental incapacity …. 3.7, 4.6 mistake …. 3.31 signature of testator …. 5.5 statutory wills …. 4.6 proposed will, alteration or revocation …. 4.8 Executors acceptance of office …. 12.17 according to tenor …. 12.10 action taken on necessity …. 14.2 appointment …. 12.2 court’s jurisdiction …. 12.11

delegation of appointment …. 12.4 identification of executor …. 12.3, 12.5 implied appointments …. 12.10 limited appointments …. 12.9 officeholders …. 12.6 partners …. 12.7 passing over …. 12.11–12.16 substitutional appointments …. 12.8 assumption of office …. 12.17 capacity to act …. 12.11 bankrupts …. 12.16 corporations …. 12.15 criminal records …. 12.14 mentally or physically disabled …. 12.13 minors …. 12.12 chain of representation …. 12.19 collection of assets …. 14.9 de son tort …. 12.18, 13.1, 14.2 death of executor …. 12.19 duties …. 1.3, 14.1 funeral arrangements …. 14.4 disposal of ashes …. 14.6 funeral expenses …. 14.13 identification of executor …. 12.3 ambiguity …. 12.5 incapacity of entitled person …. 13.8 intermeddling in estate …. 12.18, 13.1 minors …. 12.12

administration during minority …. 13.6, 13.13 overview …. 1.2, 2.1, 12.1 proving the will …. 14.8 removal from office …. 12.26, 14.45 renunciation of office …. 12.20 title to deceased’s assets …. 13.1 transmission of office …. 12.19 vesting of property …. 13.1

F Family law binding financial agreements …. 11.28 Family provision contracting out of legislation …. 11.27 family law agreements …. 11.28 New South Wales …. 11.29 contracts, and …. 2.26, 11.22 determining entitlement …. 11.9, 11.12 ‘accepted community standards’ …. 11.10 adequacy of provision …. 11.10, 11.12 general approach …. 11.10 ‘moral test’ …. 11.10 specific factors …. 11.11 time for ascertaining adequacy …. 11.12 ‘twin tasks’ …. 11.9 disentitlement …. 11.13 admissibility of evidence …. 11.16 examples of conduct …. 11.13

hearsay …. 11.16 partial disentitlement …. 11.15 statements by testator …. 11.16 time for ascertaining conduct …. 11.14 eligible applicants …. 11.1, 11.6 children …. 11.4 de facto relationships …. 11.3 dependants …. 11.5 other applicants …. 11.6 same sex relationships …. 11.3 spouses …. 11.2 step-children …. 11.4 ‘estate’, meaning …. 2.26 estate of the deceased …. 11.17 avoidance of claims …. 11.17 contracts …. 11.22 distributed property …. 11.21 donatio mortis causa …. 11.18 inter vivos transactions …. 2.26, 11.17 joint bank accounts …. 11.19 joint tenancies …. 11.20 notional estate …. 11.20, 11.23 testamentary promises …. 11.22 forfeiture for killing …. 9.26 freedom of testation, and …. 1.11, 11.1 intestacy …. 11.1 notional estate …. 2.26, 11.20 New South Wales …. 11.23

orders …. 11.17 burden of provision …. 11.26 types of orders …. 11.24 variation of orders …. 11.25 overview …. 1.2, 1.11, 11.1 time limits for applications …. 11.7 extensions of time …. 11.8 waiver of rights …. 11.29 Forfeiture for killing application of rule …. 9.24 domestic violence …. 9.24, 9.26 effect of forfeiture …. 9.25 moral culpability …. 9.24, 9.26 overview …. 9.24 statutory modification …. 9.26 Formalities courts’ approach …. 5.2, 5.12 disqualification of interpreters …. 5.34 disqualification of witnesses …. 5.30 current position …. 5.33 Queensland …. 5.33, 5.34 statutory modifications …. 5.30, 5.33 original rule …. 5.31, 5.32 form of wills …. 2.7, 2.9 functions …. 5.2 incorporation by reference …. 5.35, 7.6 effect of incorporation …. 5.39 existence of document …. 5.36, 5.37

identification of document …. 5.38 reference to existing document …. 5.37 use of incorporation …. 5.39 informal wills …. 5.12 substantial compliance doctrine …. 5.13 judicial dispensing powers …. 5.1, 5.12 background to reforms …. 5.12 burden of proof …. 5.29 courts’ approach …. 5.14 document, definition …. 5.18 document embodying intention …. 5.19 legal criteria …. 5.17 previous authorities …. 5.15 purpose of provisions …. 5.14 republication of wills …. 7.1 revival of wills …. 7.11 scope of power …. 5.16 testamentary intention …. 5.19–5.28 law reform …. 5.12, 5.13 need for formalities …. 5.2 overview …. 5.1, 5.11 republication of wills …. 7.1 signature …. 5.1, 5.4, 5.11 acknowledgment of signature …. 5.6, 5.7, 5.8 electronic signature …. 5.4 extrinsic evidence …. 5.5 intention of testator …. 5.5 position of signature …. 5.5

signing on behalf …. 5.4 sufficient signature …. 5.4 witnesses …. 5.6–5.10 testamentary contracts …. 2.27 testamentary intention …. 5.2, 5.12 judicial dispensing powers …. 5.19–5.28 signature …. 5.5 witnesses …. 5.1, 5.6, 5.11 acknowledgment of signature …. 5.6, 5.7, 5.8 attestation and subscription …. 5.8 attestation clauses …. 5.10 disqualification …. 5.30–5.33 presence requirement …. 5.7, 5.9 presumption of due execution …. 5.10 signature of testator …. 5.6–5.10 signing on behalf …. 5.4 writing requirement …. 2.7, 5.1, 5.3, 5.11 forms of writing …. 5.3 Fraud ademption, and …. 9.11 application of principle …. 3.26 burden of proof …. 3.18 classic cases …. 3.25, 3.27 general principle …. 3.26 other cases …. 3.27 overview …. 3.25 suspicious circumstances, distinction …. 3.18

undue influence, distinction …. 3.26 Freedom of testation family provision, and …. 1.11, 11.1 historical background …. 1.9, 1.11, 11.1 mental capacity, and …. 3.3, 3.4, 3.8 other countries …. 1.11, 11.1 overview …. 1.10, 1.11, 11.1 protection of family …. 1.11 restrictions …. 1.11, 11.1 Funeral arrangements …. 14.3–14.7 Funeral expenses …. 14.13, 14.23

G Gifts ademption see Ademption ambiguous words and clear gifts …. 8.20 bequests …. 1.2, 9.2 changes in nature …. 9.10 class gifts …. 8.35, 9.21 lapse …. 9.21 construction of wills …. 8.1, 8.29 ambiguous words and clear gifts …. 8.20 children …. 8.32 class gifts …. 8.35 date of will …. 8.30 description of person …. 8.29 property …. 8.36–8.39 relations …. 8.31, 8.32

spouses …. 8.33 transgender persons …. 8.34 contracts …. 2.22, 2.23, 9.13 devises …. 9.2 classifications …. 9.2 residuary devises …. 9.7 specific devises …. 9.3 disclaimers …. 9.22 relevant rules …. 9.23 donatio mortis causa see Donatio mortis causa election …. 9.32 example …. 9.33 forfeiture see Forfeiture for killing lapse see Lapse legacies …. 9.2 classifications …. 9.2 contracts …. 2.22, 2.23 demonstrative legacies …. 9.5, 14.37 distribution …. 14.33–14.38 general legacies …. 9.4, 14.35, 14.36 pecuniary legacies …. 9.6 residuary devises, and …. 9.7 residuary legacies …. 14.38 specific legacies …. 9.3, 9.5, 14.34 use of term …. 9.2 overview …. 9.1 satisfaction see Satisfaction types of gifts …. 9.2

Grant of probate categories …. 13.14 common form …. 13.14, 13.15 limitations …. 13.4 overview …. 1.3, 13.1, 13.2 revocation of grant …. 12.26, 13.17 effect of revocation …. 13.18 solemn form …. 13.14, 13.16 revocation of grant …. 13.17 Grants of representation see also Administration ad colligenda bona …. 13.11 categories …. 13.2 effect …. 13.1 foreign jurisdictions …. 13.19 resealing of grants …. 13.20 jurisdiction …. 13.2 limited grants …. 13.4 cessate grants …. 13.13 de bonis non …. 13.5 durante absentia …. 13.7 incapacity of entitled person …. 13.8 minority of executors …. 13.6, 13.13 pending legal proceedings …. 13.9 purposes of suit …. 13.10 mislaid wills …. 13.12 overview …. 13.1 proving death …. 13.3

vesting of property …. 13.1 Guardianship ademption, and …. 9.12 missing persons …. 16.13 matters of proof …. 16.14

H Hotchpot …. 10.15

I Illegitimate children entitlement on intestacy …. 10.9 family provision applications …. 11.4 gifts to children …. 8.32 Incorporation by reference see Formalities Indigenous persons customary laws .… 1.12 intestacy …. 1.12, 10.16 customary laws .… 1.12, 10.17 dedicated rules …. 10.17 Queensland …. 10.18 Western Australia …. 10.18 native title .… 1.12 overview .… 1.12 Informal wills see also Privileged wills appointment of executors …. 12.10 overview …. 5.12 substantial compliance doctrine …. 5.13 Insolvent estates

administration …. 14.23 Bankruptcy Act 1966 …. 14.22 priority for payments …. 14.23 state or territory legislation …. 14.23 International wills overview …. 5.45 Interpreters disqualification …. 5.34 Intestacy administrators see Administrators bona vacantia …. 1.2, 10.14 categories of assets …. 10.2 categories of recipients …. 10.2 causes of intestacy …. 10.1 courts of probate …. 1.3 Crown …. 10.2, 10.14 definition …. 10.1 distribution of estate …. 14.31 entitlement on intestacy …. 10.2 Crown …. 10.14 issue …. 10.6, 10.8–10.10 next of kin …. 10.13 parents …. 10.11, 10.12 surviving spouses …. 10.3–10.7, 10.12 family provision …. 11.1 historical background …. 1.6, 1.9, 1.11, 10.1 Australian position …. 1.9 Statute of Distributions …. 1.6, 10.1

hotchpot …. 10.15 indigenous persons …. 1.12, 10.16 customary laws.… 1.12, 10.17 dedicated rules …. 10.17 Queensland …. 10.18 Western Australia …. 10.18 issue of intestate …. 10.2, 10.6, 10.8 adopted children …. 10.9 grandchildren …. 10.10 hotchpot …. 10.15 illegitimate children …. 10.9 issue, definition …. 10.9 law reform …. 10.1 letters of administration …. 1.3 minors …. 3.2 next of kin …. 10.2, 10.13 definition …. 10.13 overview …. 1.2, 1.3, 1.11, 10.1, 14.31 parents of intestate …. 10.11, 10.12 partial intestacy …. 10.15 patterns of distribution …. 10.19 Australian Capital Territory …. 10.20 New South Wales …. 10.21 Northern Territory …. 10.22 Queensland …. 10.23 South Australia …. 10.24 Tasmania …. 10.21 Victoria …. 10.25

Western Australia …. 10.26 statutory rules …. 10.1 surviving spouse …. 10.2, 10.12 general disposition …. 10.4 issue of intestate …. 10.6 matrimonial home …. 10.7 no issue of intestate …. 10.5 personal chattels …. 10.6 spouse, definition …. 10.3 statutory legacy …. 10.6 survivorship periods …. 16.5 Intoxication mental capacity …. 3.4, 3.6

J Joint bank accounts ‘all property’ contracts …. 2.24 family provision …. 11.19 overview …. 2.15, 2.24 Joint tenancies commorientes …. 16.6 family provision …. 11.20 lapse …. 9.21 overview …. 2.14, 9.21 survivorship …. 11.20, 16.6 wills, and …. 2.14 Joint wills overview …. 2.31

Judicial dispensing powers attempts to comply with formalities …. 5.20 background to reforms …. 5.12 burden of proof …. 5.29 courts’ approach …. 5.14 document …. 5.18 definition …. 5.18 embodying intention …. 5.19, 5.20 sufficient documents …. 5.18 legal criteria …. 5.17 overview …. 5.1, 5.12 previous authorities …. 5.15 purpose of provisions …. 5.14 republication of wills …. 7.1 revival of wills …. 7.11 scope of power …. 5.16 testamentary intention …. 5.17, 5.20 awareness of formalities …. 5.23 custody of the document …. 5.24 delay …. 5.26 deliberate avoidance of formalities …. 5.25 determining intention …. 5.21, 5.22 document embodying …. 5.19, 5.20 extrinsic evidence …. 5.28 ‘immediacy of intention’ …. 5.20 timing of intention …. 5.27 Jurisdiction courts of construction …. 1.4

grant of administration …. 12.22 grants of representation …. 13.2 historical background …. 1.5, 1.6, 1.8, 1.9 mistake …. 3.30–3.33 overview …. 1.3 passing over executors …. 12.11 removal of personal representative …. 12.26

L Lack of testamentary capacity see Mental capacity; Statutory wills Lapse class gifts …. 9.21 common law exceptions …. 9.17 charities …. 9.18 obligations …. 9.17 joint tenancies …. 9.21 overview …. 7.7, 9.15, 16.1 republication of wills …. 7.7 statutory prevention …. 9.19, 9.20 substitution to issue …. 9.20 substitutional clauses …. 9.16 Law reform Aboriginal customary laws .… 1.12 construction of wills …. 8.27 formalities …. 5.12, 5.13 intestacy …. 10.1 judicial dispensing powers …. 5.12 privileged wills …. 5.44

revocation of wills …. 6.20 statutory wills …. 4.1, 4.4 undue influence …. 3.24 uniform succession laws …. 1.15 rectification …. 3.35, 3.36 Legacies see also Satisfaction classifications …. 9.2 contracts …. 2.22, 2.23 demonstrative legacies …. 9.5, 14.37 distribution of legacies …. 14.33–14.38 general legacies …. 9.4, 14.35, 14.36 overview …. 9.2 pecuniary legacies …. 9.6 residuary devises, and …. 9.7 residuary legacies …. 14.38 specific legacies …. 9.3, 9.5, 14.34 use of term …. 9.2 Legal personal representatives see Personal representatives Life insurance policies overview …. 2.11 will, and …. 2.11

M Making a will age requirements …. 3.2 contents of will …. 3.1, 3.11 knowledge and approval …. 3.11–3.13, 3.29 suspicious circumstances …. 3.12, 3.14–3.19

formalities see Formalities fraud see Fraud mental capacity see Mental capacity minors …. 3.2 mistake see Mistake overview …. 3.1 testamentary intention see Testamentary intention undue influence see Undue influence Manslaughter see Forfeiture for killing Marriage contemplation of marriage …. 6.13 current law …. 6.15–6.18 ‘expressed to be made in’ …. 6.14 New South Wales …. 6.15 previous law …. 6.13, 6.14, 6.17 Western Australia …. 6.18 minors …. 3.2 mutual wills, and …. 2.30 powers of appointment …. 6.19 revocation of will …. 2.25, 2.30, 6.1, 6.12 contemplation of marriage …. 6.13 exceptions …. 6.13, 6.19 powers of appointment …. 6.19 privileged wills …. 6.12 revival of wills …. 7.9 Mental capacity see also Statutory wills ademption, and …. 9.11, 9.12 Banks test …. 3.4, 3.5, 4.6

bereavement …. 3.4 evidence …. 3.7 freedom of testation, and …. 3.3, 3.4, 3.8 insane delusions …. 3.5 lucid intervals …. 3.6 intoxication …. 3.4, 3.6 legal test …. 3.3, 3.4, 4.6 insane delusions …. 3.5 time for satisfying …. 3.8 lucid intervals …. 3.6 mental illness …. 3.3, 3.4 minors …. 3.2 overview …. 3.1, 3.3 proof of incapacity …. 3.7 severance …. 3.5 solicitor’s duty …. 3.7 ‘sound mind, memory and understanding’ …. 3.4 standard of proof …. 3.7, 3.8 time for satisfying …. 3.8 Military service see Privileged wills Minors see Children Missing persons see also Presumption of death best interests …. 16.15 declarations and orders …. 16.13, 16.15 matters of proof …. 16.14 overview …. 16.13 Mistake common law …. 3.28

construction principles, and …. 3.39 courts of probate …. 3.31, 3.34 examples of jurisdiction …. 3.31 insertion or alteration of words …. 3.33 limits on jurisdiction …. 3.32 omission of words …. 3.30, 3.31, 3.32 equitable rectification …. 3.28 errors of fact …. 3.30 insertion or alteration of words …. 3.33 legal effect of words …. 3.29 knowledge and approval …. 3.29 ‘mirror wills’ …. 3.38 omission of words …. 3.30 examples of jurisdiction …. 3.31 extrinsic evidence …. 3.31 limits on jurisdiction …. 3.32 overview …. 3.1, 3.28 revocation clauses …. 6.2 statutory rectification …. 3.28, 3.34 Australian Capital Territory …. 3.34, 3.35, 3.37 ‘clerical error’, meaning …. 3.36 construction principles, and …. 3.39 New South Wales …. 3.35, 3.36 Northern Territory …. 3.36 Queensland …. 3.36 South Australia …. 3.35, 3.36, 3.38 statutory powers …. 3.28 Tasmania …. 3.36

time limits …. 3.40 unforeseen circumstances …. 3.34, 3.35, 3.37 Victoria …. 3.36 Western Australia …. 3.36 Murder see Forfeiture for killing Mutual wills constructive trusts …. 2.28, 2.29 contracts not to revoke …. 2.28 essential elements …. 2.29 marriage, and …. 2.30 overview …. 2.28 proof of agreement …. 2.29 revocation of wills …. 2.28 marriage, and …. 2.30

N Native title customary laws .… 1.12 recognition …. 1.12 New South Wales alteration of wills …. 6.28 commorientes …. 16.3 30 day survivorship rule …. 16.5 construction of wills …. 8.27 transgender persons …. 8.34 contemplation of marriage …. 6.15 disqualification of witnesses …. 5.33 family provision …. 11.23

waiver of rights …. 11.29 forfeiture for killing …. 9.26 history of succession …. 1.9 indigenous persons …. 1.12, 10.16, 10.17 intestacy …. 10.1, 10.21 indigenous persons …. 1.12, 10.16, 10.17 judicial dispensing powers …. 5.12, 5.28 admissibility of evidence …. 5.28 missing persons …. 16.13 best interests …. 16.15 declarations and orders …. 16.13, 16.15 matters of proof …. 16.14 privileged wills …. 5.44 rectification powers …. 3.35, 3.36 revival of wills …. 7.8 revocation of wills …. 6.8 divorce, by …. 6.20, 6.22, 6.27 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.10 uniform succession laws …. 1.15 intestacy …. 10.1 Northern Territory commorientes …. 16.4 joint tenancies …. 16.6 contemplation of marriage …. 6.16 disqualification of witnesses …. 5.33 judicial dispensing powers …. 5.12 standard of proof …. 5.29

indigenous persons …. 1.12, 10.16, 10.17 intestacy …. 10.22 indigenous persons …. 1.12, 10.16, 10.17 survivorship rule …. 16.5 rectification powers …. 3.36 revocation by divorce …. 6.24 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.11

O Onus of proof contents of will …. 3.11, 3.13, 3.15, 3.18 fraud …. 3.18 judicial dispensing powers …. 5.29 mental capacity …. 3.7 undue influence …. 3.18, 3.20, 3.21, 3.24

P Partners appointment as executors …. 12.7 Pensions see also Superannuation binding nominations …. 2.13 wills, and …. 2.13 Personal representatives accounts and records …. 15.13 action taken on necessity …. 14.2 administrators see Administrators administrative expenses …. 14.14 beneficiaries’ rights …. 15.10

claims against estate …. 14.18, 14.19 collection of assets …. 14.9 all assets …. 14.11 available assets …. 14.10 completion of administration …. 14.41, 14.45 ascertainment of residuary …. 14.44 assent …. 14.43 transfer of assets …. 14.42 distribution of estate …. 14.30, 14.32 ademption …. 14.39 categories of dispositions …. 14.33 demonstrative legacies …. 14.37 failure of gift …. 14.39, 14.40 general legacies …. 14.35, 14.36 intestate estate …. 14.31 residuary gifts …. 14.38, 14.40 specific legacies …. 14.34 duties …. 1.3, 14.2 failure to fulfill …. 15.11, 15.15 executors see Executors funeral arrangements …. 14.3–14.5 disposal of ashes …. 14.6 use of body parts …. 14.7 funeral expenses …. 14.13, 14.23 insolvent estates …. 14.23 Bankruptcy Act 1966 …. 14.22 priority for payments …. 14.23 state or territory legislation …. 14.23

liabilities of estate …. 14.12 administrative expenses …. 14.14 expediating ascertainment …. 14.17 funeral expenses …. 14.13 incurred by deceased …. 14.16 incurred by representative …. 14.12–14.15 payment of liabilities …. 14.20–14.29 personal liabilities …. 14.15, 14.18, 14.19 testamentary expenses …. 14.14 liability …. 15.10 accounts and records …. 15.13 defences …. 15.13 failure to fulfill duties …. 15.11, 15.15 maladministration …. 15.12 relief from liability …. 15.14 overview …. 12.1 payment of liabilities …. 14.20, 14.24 appropriation of assets …. 14.29 exclusion of statutory scheme …. 14.27 insolvent estates …. 14.22, 14.23 Locke King’s Act …. 14.28 marshalling of assets …. 14.29 priority of assets …. 14.25–14.29 priority of payments …. 14.21, 14.23 personal liabilities …. 14.15 creditor’s claims …. 14.19 notice of claims …. 14.18

powers …. 14.45, 15.1, 15.10 appropriation of assets …. 15.6 carry on business …. 15.3 compromise …. 15.4 employment of agents …. 15.5 sale of assets …. 15.2 proving the will …. 14.8 rights …. 15.7 commissions …. 15.9 general indemnity …. 15.7 seek directions of court …. 15.8 testamentary expenses …. 14.14 trustees, differences …. 14.45 Personalty see also Legacies donatio mortis causa …. 2.20 historical background …. 1.5, 1.6, 1.9 jurisdiction …. 1.8 Portion debts satisfaction by legacies …. 9.29 Powers of appointment marriage …. 6.19 Powers of attorney ademption, and …. 9.12 Presumption of death commorientes, and …. 16.11 due inquiries …. 16.10 general principles …. 16.8 grant of leave to distribute …. 16.12

matters of proof …. 16.10 overview …. 16.7, 16.9 seven year rule …. 16.7, 16.8, 16.9 time of death …. 16.9 Private property rights alternatives to succession …. 1.10 forms of property …. 1.10 overview …. 1.10, 1.11 socialist countries …. 1.10 Privileged wills ‘actual military service’, meaning …. 5.42 duration of will …. 5.40 historical background …. 5.40 mental element …. 5.43 overview …. 2.7, 5.1, 5.40 privileged testators, definition …. 5.41 rationale …. 5.40, 5.44 revocation by marriage …. 6.12 testamentary intention …. 3.9, 5.43 Probate see also Administration contractual promises, and …. 2.21 courts of probate see Courts of probate grant of probate see Grant of probate Property law see also Personalty; Private property rights; Realty devolution on death …. 13.1 Proprietary estoppel contracts …. 2.21, 2.27 Psychiatric illness

mental capacity, and …. 3.3, 3.4

Q Queensland contemplation of marriage …. 6.16 disqualification of interpreters …. 5.34 disqualification of witnesses …. 5.33, 5.34 gifts to children …. 8.32 informal wills …. 5.13 intestacy …. 10.23 indigenous persons …. 10.18 judicial dispensing powers …. 5.12, 5.13 rectification powers …. 3.36 revocation by divorce …. 6.24 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.11 uniform succession laws …. 1.15

R Realty see also Devises; Joint tenancies donatio mortis causa …. 2.20 historical background …. 1.5, 1.7, 1.9 common law …. 1.7, 1.9 doctrine of the use …. 1.7 jurisdiction …. 1.8 Rectification equitable doctrine …. 3.28 ‘mirror wills’ …. 3.38

overview …. 3.28 statutory powers …. 3.28, 3.34 Australian Capital Territory …. 3.34, 3.35, 3.37 ‘clerical error’, meaning …. 3.36 construction principles, and …. 3.39 New South Wales …. 3.35, 3.36 Northern Territory …. 3.36 Queensland …. 3.36 South Australia …. 3.35, 3.36, 3.38 Tasmania …. 3.36 time limits …. 3.40 unforeseen circumstances …. 3.34, 3.35, 3.37 Victoria …. 3.36 Western Australia …. 3.36 Representation see Grants of representation Republication of wills change in property …. 7.5 change of persons …. 7.4 effects of republication …. 7.3, 7.6 incorporation by reference …. 7.6 intention to republish …. 7.2 intermediate codicils …. 7.7 limits on republication …. 7.7 methods of republication …. 7.1 overview …. 7.1 unattested alterations …. 7.6 Revival of wills effect of revival …. 7.10

intention to revive …. 7.9 judicial dispensing powers …. 7.11 overview …. 7.8 Revocation of wills see also Alteration of wills; Revival of wills; Statutory wills another will or codicil, by …. 6.2 implied revocation …. 6.3 conditional revocation …. 6.10, 6.31 examples …. 6.11 contracts not to revoke …. 2.3, 2.25, 2.28, 6.1 dealing with a will …. 6.8 dependant relative revocation …. 6.10, 6.31 examples …. 6.11 destruction of will, by …. 6.5 act of destruction …. 6.6 dependant relative revocation …. 6.10, 6.11 intention to revoke …. 6.7 missing wills …. 6.9 partial destruction …. 6.6 presumption of destruction …. 6.9 symbolic acts …. 6.8 divorce, by …. 6.1, 6.20, 6.21 Australian Capital Territory …. 6.25, 6.27 New South Wales …. 6.22, 6.27 Northern Territory …. 6.24 Queensland …. 6.24 South Australia …. 6.25, 6.27 Tasmania …. 6.24

Victoria …. 6.23, 6.27 Western Australia …. 6.26 express revocation clauses …. 6.2 implied revocation …. 6.3 marriage, by …. 2.25, 2.30, 6.1, 6.12 contemplation of marriage …. 6.13 exceptions …. 6.13, 6.19 powers of appointment …. 6.19 privileged wills …. 6.12 revival of wills …. 7.9 methods of revocation …. 6.1 missing wills …. 6.9 mutual wills …. 2.28 marriage, and …. 2.30 operation of law, by …. 6.1 overview …. 1.5, 2.3, 2.21, 2.25, 6.1 part of will …. 6.31, 6.32 voluntary revocation …. 6.1 written declaration of intention …. 6.4

S Same sex relationships family provision …. 11.3 Satisfaction commercial debts by legacies …. 9.28 legacies by legacies …. 9.31 legacies by portions …. 9.30 overview …. 9.27

portion debts by legacies …. 9.29 Settlements inter vivos overview …. 2.10 wills, and …. 2.10 Severance insane delusions, and …. 3.5 suspicious circumstances …. 3.17 Shares ademption …. 9.10 donatio mortis causa …. 2.19 gifts of shares …. 9.10 South Australia contemplation of marriage …. 6.13, 6.17 intestacy …. 10.24 hotchpot …. 10.15 survivorship rule …. 16.5 judicial dispensing powers …. 5.12 standard of proof …. 5.29 lapse …. 9.19 ‘mirror wills’ …. 3.38 powers of attorney …. 9.12 privileged wills …. 5.40 privileged testator, definition …. 5.41 rectification powers …. 3.35, 3.36 ‘mirror wills’ …. 3.38 revocation by divorce …. 6.25, 6.27 statutory wills …. 4.1, 4.5 proposed will, alteration or revocation …. 4.8

Standard of proof judicial dispensing powers …. 5.29 mental capacity …. 3.7, 3.8 rectification …. 3.35 undue influence …. 3.22, 3.24 Statutory wills applicants …. 4.3 background to introduction …. 4.1, 4.2 conditions for exercise of power …. 4.5 lack of capacity …. 4.6 proof of incapacity …. 4.6 proposed will, alteration or revocation …. 4.7–4.11 reasonable in all circumstances …. 4.12 costs …. 4.14 execution …. 4.13 overview …. 4.1, 4.2 procedure for applicants …. 4.3 courts’ considerations …. 4.5 leave applications …. 4.4 two-stage process …. 4.4 proposed will, alteration or revocation …. 4.7 evidence of intention …. 4.8 intention …. 4.8, 4.9, 4.10, 4.11 ‘likely intentions’ …. 4.8, 4.9 ‘lost capacity’ cases …. 4.8, 4.10 New South Wales …. 4.10 ‘nil capacity’ cases …. 4.8, 4.9, 4.10, 4.11 objective approach …. 4.8, 4.10

other jurisdictions …. 4.11 ‘pre-empted capacity’ cases …. 4.10 ‘reasonably likely’ …. 4.10 South Australia …. 4.8 Victoria …. 4.8, 4.9 reasons for wills …. 4.2 time of effect …. 4.13 Step-children family provision applications …. 11.4 gifts to children …. 8.32 Succession law alternatives to succession …. 1.10 comparative succession law …. 1.13 conflict of laws …. 1.14, 1.15 death duties …. 1.10 freedom of testation …. 1.10, 1.11, 11.1 family provision, and …. 1.11, 11.1 historical background …. 1.9, 1.11, 11.1 other countries …. 1.11, 11.1 protection of family …. 1.11 restrictions …. 1.11, 11.1 future directions …. 1.16 historical background …. 1.5, 1.9, 8.2 Australian position …. 1.9 freedom of testation …. 1.9, 1.11, 11.1 intestacy …. 1.6, 1.9, 1.11 jurisdiction …. 1.8, 1.9 personalty …. 1.6, 1.8

realty …. 1.7, 1.8 indigenous perspectives …. 1.12 intestacy see Intestacy meaning …. 1.1 multiculturalism, and …. 1.13 overview …. 1.1, 1.10 private property rights …. 1.10, 1.11 social changes, and …. 1.16 taxation …. 1.10 terminology …. 1.2 uniform succession laws …. 1.15 intestacy …. 10.1 rectification …. 3.35, 3.36 wills see Wills Superannuation binding nominations …. 2.12, 2.13 overview …. 1.10, 2.12 wills, and …. 2.13 Supreme Courts see also Courts of construction; Courts of probate Survivorship commorientes see Commorientes joint tenancies …. 11.20, 16.6 missing persons …. 16.13 best interests …. 16.15 declarations and orders …. 16.13, 16.15 matters of proof …. 16.14 overview …. 16.1 presumption of death …. 16.7, 16.9

commorientes, and …. 16.11 due inquiries …. 16.10 general principles …. 16.8 grant of leave to distribute …. 16.12 matters of proof …. 16.10 seven year rule …. 16.7, 16.8, 16.9 time of death …. 16.9 Suspicious circumstances delay …. 3.15 fraud, distinction …. 3.18 indirect benefits …. 3.15 knowledge and approval …. 3.12, 3.14, 3.15, 3.16 other circumstances …. 3.16 overview …. 3.1, 3.12, 3.14, 3.18 preparation by beneficiary …. 3.15, 3.16 severance …. 3.17 undue influence, distinction …. 3.18, 3.19

T Tasmania contemplation of marriage …. 6.16 disqualification of witnesses …. 5.33 indigenous persons …. 1.12, 10.16, 10.17 intestacy …. 10.1, 10.21 indigenous persons …. 1.12, 10.16, 10.17 judicial dispensing powers …. 5.12 standard of proof …. 5.29 powers of attorney …. 9.12

rectification powers …. 3.36 revocation by divorce …. 6.24 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.11 uniform succession laws …. 1.15 intestacy …. 10.1 Taxation …. 1.10 Testamentary capacity see Mental capacity; Statutory wills Testamentary contracts see Contracts Testamentary intention see also Construction of wills conditional intention …. 3.10 formalities, and …. 5.2, 5.12 judicial dispensing powers …. 5.19–5.28 signature …. 5.5 general principle …. 3.9 overview …. 3.1, 3.9 privileged wills …. 3.9, 5.43 rectification …. 3.35, 3.36 Testamentary promises see Contracts Testators see also Mental capacity minors …. 3.2 overview …. 1.2, 3.1 privileged testators see Privileged wills Testator’s family maintenance see also Family provision overview …. 1.2, 1.11 spouse, definition …. 11.3 Trustees overview …. 14.45

personal representative, differences …. 14.45 Trusts constructive trusts see Constructive trusts wills, and …. 2.10

U Undue influence see also Fraud circumstantial evidence …. 3.22, 3.24 coercion requirement …. 3.19 consequences …. 3.23 difficulties in establishing …. 3.24 equity …. 3.20 fraud, distinction …. 3.26 legal test …. 3.19 onus of proof …. 3.18, 3.20, 3.21, 3.24 overview …. 3.19 persuasion, distinction …. 3.19 presumed undue influence …. 3.20 reform proposals …. 3.24 standard of proof …. 3.22, 3.24 suspicious circumstances, distinction …. 3.18, 3.19

V Victoria construction of wills …. 8.27 contemplation of marriage …. 6.16 intestacy …. 10.25 hotchpot …. 10.15

judicial dispensing powers …. 5.12 rectification powers …. 3.36 revocation by divorce …. 6.23, 6.27 statutory wills …. 4.1, 4.4 proposed will, alteration or revocation …. 4.8, 4.9

W Western Australia commorientes …. 16.4 joint tenancies …. 16.6 contemplation of marriage …. 6.18 intestacy …. 10.26 indigenous persons …. 10.18 judicial dispensing powers …. 5.12 standard of proof …. 5.29 rectification powers …. 3.36 revocation by divorce …. 6.26 statutory wills …. 4.1 proposed will, alteration or revocation …. 4.11 Wills see also Freedom of testation aggregation of intention …. 2.8 alteration see Alteration of wills ambulatory in nature …. 1.5, 2.5 characteristics …. 2.1 ambulatory in nature …. 1.5, 2.5 declaration of intention …. 2.2 effective on death …. 2.4, 2.5 not limited to property …. 2.6

prescribed form …. 2.7 revocability …. 2.3, 2.21 unitary in nature …. 2.8 conditional wills …. 3.10 contents of will …. 3.1, 3.11 knowledge and approval …. 3.11–3.13, 3.29 suspicious circumstances …. 3.12, 3.14–3.19 contracts relating to wills see Contracts construction see Construction of wills declaration of intention …. 2.2 definition …. 1.2, 2.1 executors see Executors family provision see Family provision form of wills …. 2.7, 2.9 formalities see Formalities fraud see Fraud historical background …. 1.5, 1.9 Australian position …. 1.9 jurisdiction …. 1.8, 1.9 personalty …. 1.6, 1.8 realty …. 1.7, 1.8 joint bank accounts, and …. 2.15, 2.24 joint tenancies, and …. 2.14 joint wills …. 2.31 international wills …. 5.45 life insurance policies, and …. 2.11 making a will …. 3.1 contents of will …. 3.11–3.19

minimum age …. 3.2 mental capacity see Mental capacity minimum age …. 3.2 minors …. 3.2 mistake see Mistake mutual wills see Mutual wills other transactions, and …. 2.9 donatio mortis causa …. 2.16–2.20 joint bank accounts …. 2.15 joint tenancies …. 2.14 life insurance policies …. 2.11 settlements inter vivos …. 2.10 superannuation …. 2.12, 2.13 pensions, and …. 2.13 prescribed form …. 2.7 privileged wills see Privileged wills probate see Probate republication see Republication of wills revival see Revival of wills revocation see Revocation of wills settlements inter vivos, and …. 2.10 severance …. 3.5, 3.17 statutory wills see Statutory wills superannuation, and …. 2.12 binding nominations …. 2.13 testamentary intention see Testamentary intention undue influence, and see Undue influence

Witnesses disqualification …. 5.30 current position …. 5.33 Queensland …. 5.33, 5.34 statutory modifications …. 5.30, 5.33 original rule …. 5.31, 5.32 overview …. 5.1 republication of wills …. 7.6 signature of testator …. 5.6, 5.11 acknowledgement of signature …. 5.6, 5.7, 5.8 attestation and subscription …. 5.8 attestation clauses …. 5.10 presence requirement …. 5.7, 5.9 presumption of due execution …. 5.10 signing on behalf of testator …. 5.4

Related LexisNexis Titles Birtles & Neal, Hutley’s Australian Wills Precedents, 9th edition, 2016 Croucher & Vines, Succession – Families, Property and Death, 4th edition, 2013 Dal Pont & Mackie, Law of Succession, 2nd edition, 2017 Perkins & Monahan, Estate Planning: A Practical Guide for Estate and Financial Services Professionals, 4th edition, 2015 Vines, Quick Reference Card – Succession Law, 2010 Webb, LexisNexis Study Guide: Succession, 2017