6.1 WHEN A DEVISE IS NOT TO BE RENDERED INOPERATIVE - EFFECT OF SUBSEQUENT CONVEYANCE ON WILL
STATE | SECTION |
ACT | s23 |
NSW | s20 |
NT | s26 |
QLD | s27 |
SA | s26 |
TAS | s32 |
VIC | s21 |
VIC (1994) | s20 |
WA | s25 |
The gist of this provision is that a devise of land is not adeemed, that is revoked, altogether by a conveyance made subsequent to the will by which some part or interest in the land devised is conveyed away from the testator. Before 1837 any change in the testator’s interest in relation to realty could cause the revocation of any devise of that land contained in the testator’s will. The drafting of the provision raises the issue of the extent to which the drafting of a modern law of wills should be constrained by pre-1837 law.
It is likely that this provision can be repealed altogether if a comprehensive draft can be achieved concerning what property may be disposed of by will (see paragraph 2.1 above).
6.2 WILL TO SPEAK FROM DEATH OF TESTATOR
STATE | SECTION |
ACT | s24 |
NSW | s21 |
NT | s27 |
QLD | s28(a) |
SA | s27 |
TAS | s33 |
VIC | s22 |
VIC (1994) | s21 |
WA | s26(a) |
This provision is the first of four or five sections appertaining to the construction of wills. In Queensland and Western Australia these sections have been conflated into one, abridged and put into relatively up-to-date language. This provision establishes the rule that a will is to be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator. One of its objects is to ensure that property acquired by a person after he or she has made a will can be included in provisions of an existing will. It therefore abuts upon the question of what property may be disposed of by will - see paragraphs 6.1 and 2.1 above. To this extent the provision requires careful consideration.
6.3 WHAT A RESIDUARY DEVISE SHALL INCLUDE
STATE | SECTION |
ACT | s25 |
NSW | s22 |
NT | s28 |
QLD | s28(b) |
SA | s28 |
TAS | s34 |
VIC | s23 |
VIC (1994) | s22 |
WA | s26(b) |
This is the second of four sections, conflated into one in Queensland and Western Australia, about the construction of wills. The gist of this provision is that property the subject of a disposition in a will that fails to take effect is to be included in any residuary disposition contained in the will.
It is an important rule which requires up-to-date drafting.
6.4 DEVISE OF LAND INCLUDES LEASEHOLD LAND
STATE | SECTION |
ACT | s26(1) |
NSW | s23(1) |
NT | s29 |
QLD | s28(c) |
SA | s29 |
TAS | s35 |
VIC | s24 |
VIC (1994) | s27 |
WA | s26(c) |
It seems that before 1837 a general disposition of land by will might include only freehold land; and that if the testator owned leasehold land it would not pass under the general devise. A likely reason for this was that in a general devise the testator would use the correct words of limitation for the conveyance of the freehold so inferentially excluding any leasehold. The Wills Act 1837 (UK) abolished the requirement that the correct words of limitation be used in the devise of land, (see paragraph 6.6 below) and this provision, viz. that a general disposition of land or of land in a particular area includes leasehold land whether or not the testator owns freehold land, is consequential.
This relict of pre-1837 law has left at least one unsolved problem. Suppose a testator’s will provides: “I devise all my realty in Queensland to X”. Would this provision include leaseholds in Queensland? Since the language of the will is traditionally associated with realty - both by the use of the word “devise” and of the word “realty”, it is arguable that leaseholds could not pass. This section does not solve this problem. For a possible approach to the solution of the problem consideration of section 29(a) of the Succession Act 1981 (Qld) may assist (see paragraph 7.4 below).
6.5 GENERAL DEVISE OR BEQUEST CAN EXECUTE A GENERALPOWER OF APPOINTMENT
STATE | SECTION |
ACT | s26(2),(3) |
NSW | s23(2),(3) |
NT | s30 |
QLD | s28(d) |
SA | s30 |
TAS | s27 |
VIC | s25 |
VIC (1994) | s28 |
WA | s26(d) |
This provision or provisions is to the effect that a general devise of land and a general bequest of personalty can operate as the execution of a power of appointment.
The object is to ensure that the will deals comprehensively with the testator’s property including property over which he or she had a power of appointment.
Example
By the will of X a power to appoint in relation to Bectare is given to Y, to be exercised in favour of such of X’s children as Y shall appoint and in default of appointment to X’s children in equal shares. Y has died leaving a will which includes the provision “I devise all my realty to X2”. X2 is one of X’s children. The statutory provision ensures that the general devise contained in Y’s will exercises the power conferred on Y by X’s will in favour of X2. Otherwise the gift over in default of appointment would have applied and Bectare would have been divided amongst all the surviving children of X. X2 will also take any realty belonging to Y.
6.6 THE EFFECT OF A DEVISE WITHOUT WORDS OF LIMITATION
STATE | SECTION |
ACT | s27 |
NSW | s24 |
NT | s32 |
QLD | s28(e) |
SA | s31 |
TAS | s37 |
VIC | s26 |
VIC (1994) | s29 |
WA | s26(e) |
At common law a devise of realty was considered to be a conveyance and the fee simple could pass only if the required words of limitation - that is, “to A and his heirs” or “to A and the heirs of his body” - were used. If these words were not used the devise could not pass the fee simple. This provision abolishes that rule. Since words of limitation are no longer required to pass the fee simple it should be considered whether this provision needs to be retained. It is about pre-1837 law and old system conveyancing.
6.7 HOW THE WORDS "DIE WITHOUT ISSUE", OR "DIE WITHOUT LEAVING ISSUE" OR "HAVE NO ISSUE" SHALL BE CONSTRUED
STATE | SECTION |
ACT | s28 |
NSW | s25 |
NT | s32 |
QLD | s30 |
SA | s32 |
TAS | s38 |
VIC | s28 |
VIC (1994) | s31 |
WA | no provision |
There must have been pre-1837 cases in which a disposition of property in the event of a designated person dying without issue, or without leaving issue, or having no issue, had been construed as referring to failure of issue at any time in the future, and not failure during the life of the person designated. Such a disposition might then have been in danger of being held to be void for breach of the rule against perpetuities. The possibility of this construction being arrived at has been negatived by this provision. It is perhaps not without significance that the rule has been omitted from the Western Australian legislation. It will be worth reconsidering this provision and examining its history, since it may be justifiable to omit it as one of those provisions which hark back to before 1837.
6.8 NO DEVISE TO TRUSTEES ETC TO PASS A CHATTEL INTEREST
STATE | SECTION |
ACT | s29 |
NSW | s26 |
NT | s33 |
QLD | no provision |
SA | s33 |
TAS | s39 |
VIC | s28 |
VIC (1994) | no provision |
WA | no provision |
This is a provision intended to ensure that devises to trustees or executors carry the entire fee simple if the testator has the fee simple. It has the appearance of a remnant from the days when words of limitation were required in devises even to trustees. That is, it is about old system conveyancing. It has already been covered by the general provision that the entire interest of the testator in property whether realty or personalty passes under the will - see paragraph 2.1 above. Its omission from the Western Australian and Queensland legislation, and the Victorian proposed Wills Act 1994 is clearly correct.
6.9 TRUSTEES UNDER AN UNLIMITED DEVISE TO TAKE THE FEE
STATE | SECTION |
ACT | s30 |
NSW | s27 |
NT | s34 |
QLD | no provision |
SA | s34 |
TAS | s39 |
VIC | s29 |
VIC (1994) | no provision |
WA | no provision |
This again is a provision dating from the time when a devise to trustees might be found not to have transferred the fee simple to them. That is it is a provision about old system conveyancing. It was intended to ensure that the fee simple was vested in the trustees. The same comments apply as in the case of the last paragraph. In the Tasmanian Wills Act 1992 this provision and the last have been conflated into one section.
6.10 DEVISES OF ESTATES TAIL SHALL NOT LAPSE
STATE | SECTION |
ACT | no provision |
NSW | s28 |
NT | s35 |
QLD | no provision |
SA | s35 |
TAS | s40 |
VIC | s30 |
VIC (1994) | no provision |
WA | no provision |
This is an anti-lapse provision designed to ensure that if a person to whom an estate tail was devised died in the lifetime of the testator the devise would not fail but would pass to those who would have taken had the person died immediately after the testator. Estates tail are now so anomalous as to cast doubt upon the utility of this provision. It has been justifiably omitted from the legislation in the Australian Capital Territory, Queensland and Western Australia and proposed legislation in Victoria.
A general anti-lapse provision (see paragraph 6.11 below) will take care of this kind of case where the issue is issue of the testator. Where a life interest and remainder is given, the intention of the testator will prevail and the death before the testator of a person intended to be a life tenant will not affect the rights of the remainderman who survives the testator. It is doubtful whether any attention has been paid to this provision for some time, so perhaps some consideration of it in general terms may be desirable; although it is probable that it should just be omitted from future legislation.
6.11 GIFTS TO CHILDREN OR OTHER ISSUE OF THE TESTATOR WHO LEAVE ISSUE LIVING AT THE TESTATOR’S DEATH SHALL NOT LAPSE - STATUTORY SUBSITUTIONAL PROVISION
STATE | SECTION |
ACT | s31 |
NSW | s29 + Conveyancing Act 1919, s37 |
NT | s36 |
QLD | s33 |
SA | s36 |
TAS | s41 |
VIC | s31 |
VIC (1994) | s32 |
WA | s27 |
The ordinary law of wills is that if a beneficiary dies before the testator the benefit left does not take effect. It is said to lapse. The reason for this is that it is conceived that the benefit is intended to be personal to the beneficiary and is not intended to go to a deceased beneficiary’s estate. The rule is old and is never questioned.
A testator who contemplates the possibility of a beneficiary predeceasing the testator may include a substitutional provision in the will naming another beneficiary to take in the event of the death before the testator of the original beneficiary. In the case of gifts to issue of a testator wills legislation furnishes a ready made substitutional provision, with the object of favouring issue of predeceased issue.
The history of the statutory substitutional (or anti-lapse) provision has not been without difficulties. In the Wills Act 1837 (UK) the rule was framed to provide that the issue was deemed to have survived the testator. The effect of that was that the property left to the issue would pass to the estate of that issue and then under the will, if any, of that issue. The difficulty of this was that the will might leave the property elsewhere, for instance to the spouse, to the exclusion of that person’s (and the testator’s) own issue.
Another difficulty was that the rule at one time was held not to apply in the case of a gift to a class - for example “to such of my children as survive me”. If one child died before the testator a statutory substitutional provision could not be applied for the benefit of that child’s issue because the child was considered not to be within the description of the “surviving” children.
Revisions of the anti-lapse rule have attempted to address these questions; but these attempts have the appearance of being piecemeal. What a statutory anti-lapse provision should ensure is that issue of predeceasing issue should take the property left as if the pre-deceasing issue had died intestate without leaving a spouse, that is, per stirpes. An anti-lapse provision should apply expressly to class gifts to issue; and although the rule should be subject to a contrary intention, a contrary intention should require stronger language than a mere reference to issue as having predeceased the testator. A draft provision recommended by the Victorian Law Reform Committee’s Report on Reforming the Law of Wills 1994 reads as follows:
Draft s32 - Dispositions not to fail because issue have died before the testator
(1) If a person makes a disposition to any of his or her issue, where the disposition is not a disposition to which section 30 applies, and where the interest in the property disposed is not determinable at or before the death of the issue, and the issue does not survive the testator for thirty days, the issue of that issue who survive the testator for thirty days take that disposition in the shares they would have taken of the residuary estate of the testator if the testator had died intestate leaving only issue surviving.
(2) Sub-section (1) applies so that issue who attain the age of 18 years or who marry take in the shares they would have taken if issue who neither attain the age of 18 years nor marry under that age had predeceased the testator.
(3) Sub-section (1) applies to dispositions to issue either as individuals or as members of a class.
(4) This section is subject to any contrary intention appearing in the will; but a general requirement or condition that issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section.
Comment
This provision addresses the difficulties which have been encountered as a result of the drafting of earlier provisions.
Of the provision in subsection (2) the Victorian Report says:1
It has been argued that consistency with the Committee’s views on s.30 requires the condition in s.32(2) of the 1991 Draft Wills Bill as to attaining the age of 18 years or marrying to be omitted because they have no place in Victoria’s law of intestate succession. However the point of s.30 is to identify persons included in the description of issue, whereas s.32 attempts to give effect to the presumed or most likely intention or preference of testators who have indicated the importance of survivorship. The Wills Working Party recommended the inclusion of the condition, and gave as a reason that it would prevent property of one side of the family going to the other side of the family on the intestacy of a minor. The Committee accepts that a testator would ordinarily prefer his or her property not to be distributed on the early death of an intestate minor who had never controlled it.
This is not found in other legislation, but the reason given for its inclusion warrants consideration for adoption.
The provision in subsection (4) is new for Victoria; but was included in the Queensland Succession Act 1981, section 33(2).
Under the existing Victorian law, if a testator leaves property to, for example, “such of my children as survive me and attain the age of 18”, and the testator is survived by one child and three grandchildren the children of a deceased child, the property will be taken only by the surviving child and the grandchildren will take nothing.2
Under the Queensland provision the grandchildren will take the property their parent would have taken had he or she survived the testator.3
Issues for consideration
(1) Should statutory anti-lapse provisions ensure that issue of predeceasing issue take the property left as if the predeceasing issue had died intestate without leaving a spouse, that is per stirpes?
(2) Should anti-lapse provisions apply expressly to class gifts to issue?
(3) For any contrary intention to affect such a provision, should that intention be expressed in stronger language than a mere reference to issue having predeceased the testator?
FOOTNOTES
1. Parliament of Victoria Law Reform Committee Reforming the Law of Wills May 1994 at 147.
2. See Bassett v Hall [1994] 1 VR 432.
3. See Re Macaudo [1993] 2 Qd R 269.
