8.1 DISPOSITION TO UNINCORPORATED ASSOCIATIONS OF PERSONS1
STATE | SECTION |
ACT | s7 |
NSW | s5 |
NT | s5 |
QLD | s7 |
SA | s4 |
TAS | s5 |
VIC | s5 |
VIC (1994) | s4 |
WA | s6 |
If the aims, objects or purposes of an unincorporated association of persons are not charitable in law (for example, of a social or sports club), a legacy or devise on trust for those aims or purposes would fail for want of charity. This question is dealt with in detail in Ford & Lee Principles of the Law of Trusts2 and was considered by the Queensland Law Reform Commission in its Report on the Law relating to Succession.3 The following comment was made in that Report:4
A lay testator, minded to include in his will a legacy or devise for an unincorporated association of persons, has a phenomenal series of legal obstacles to overcome. If he leaves the benefit to the members of the association for the time being the legacy will take effect. But, if he leaves it to the present and future members of the association, it will fail. If he leaves it to augment the general funds of the association the legacy will take effect; but, if he leaves it for the purposes of the association, then, unless the purposes are charitable, it will fail. None of the problems arise if the association of persons happens to be incorporated. Perhaps, even less explicable, in layman’s terms, is the fact that one may easily make a gift in one’s lifetime to an unincorporated association of persons, but, if one attempts the same thing by one’s will inordinate technicalities block the way. Further, how is anyone to understand why it is that a legacy to “the Communist Party of Australia ... for its sole use and benefit” should fail,5 ... the same fate would, of course, await the same legacy to any [unincorporated] political party ... whereas a legacy “for the general purposes of the Loyal Orange Institution of Victoria”,6 or a Masonic Lodge,7 or the Old Bradfordians Club,8 should succeed?
In Queensland section 63 of the Succession Act 1981 (Qld) was inserted to relieve testators, who clearly wish to provide a benefit for a lawful, non charitable unincorporated association of persons, from these often fatal technicalities.
Subsection (1) provides that a disposition to:
(a) an unincorporated association of persons, which is not a charity; or
(b) to or upon trust for the aims, objects or purposes of an unincorporated association of persons, which is not a charity; or
(c) to or upon trust for the present and future members of an unincorporated association of persons, which is not a charity,
has effect “as a legacy or devise in augmentation of the general funds of the association”.
Legacies or devises coming under (b) and (c) would almost certainly fail without the gloss of this provision. A legacy coming under (a) may be effective, if it can be interpreted as a legacy or devise in augmentation of the general funds of the association, that is, not upon trust for the aims or purposes of the association, or on trust for present and future beneficiaries. As the Privy Council said in Leahy v A-G (NSW):9
In law a gift to such a society simpliciter (ie, where, to use the words of Lord Parker in Bowman v. Secular Society Ltd.,10 neither the circumstances of the gift nor the directions given nor the objects expressed impose on the donee the character of a trustee) is nothing else than a gift to its members at the date of the gift as joint tenants or tenants in common. It is for this reason that the prudent conveyancer provides that a receipt by the treasurer or other proper officer of the recipient society for a legacy to the society shall be a sufficient discharge to executors.
The provision is intended to marshall these principles so as to ensure the validity of gifts intended for unincorporated associations of persons.
Subsection (3) takes care of the problem where a testator fails to include, in a will, provisions respecting the giving of a receipt by a Treasurer or other officer.
The benefits of the provision are very clear and the Victorian Law Reform Committee’s proposed Wills Act 1994 contains a similar provision, but makes it clear, unlike the Queensland precedent, that the provision only applies to unincorporated associations which are “not a charity”. The Queensland provision should have contained such a provision. If an unincorporated association has aims, objects or purposes which are exclusively charitable, or which can be considered to be exclusively for charitable purposes,11 then the law relating to charities should govern not only the validity but also the administration of that gift.
Subsection (4) of the Queensland provision reads:
It shall not be an objection to the validity of a legacy or devise to an unincorporated association of persons that a list of persons who were members of the association at the death of the testator cannot be compiled.
The provision is worthy of comment. It might be argued that if a complete list of all the members of an unincorporated association of persons could not be compiled at the date of death of the testator a disposition to them could not take effect because it could not be divided amongst them in equal shares. That is, the assumption is that the gift must be divisible amongst the members before it can be valid. This assumption stems from a principle, as formerly understood, of the law of trusts that to be valid all the beneficiaries of a trust must be listable, or, in the case of a gift to a class, that each member of the class must be identifiable. Although that principle is no longer insisted upon in the law of trusts, since McPhail v Doulton,12 this provision is intended to stave off arguments based on the former understanding of that principle.
The proposed Victorian Wills Act 1994 has a provision, section 34, based on the Queensland provision but which goes further by providing in subsection (5) as follows:
It is not an objection to the validity of a disposition to an unincorporated association of persons that a list of persons who were members of the association at the time the testator died cannot be compiled, or that the members of the association have no power to divide assets of the association beneficially amongst themselves. [emphasis added]
The reason for the addition of the underlined words is that there are, and have in the past been, many unincorporated associations of persons the members of which cannot terminate the association and divide the assets amongst themselves. Today these are associations which enjoy taxation benefits. In the case of such associations there is usually a requirement of the Commissioner of Taxation that in the case of termination of the association any assets must be distributed to a similar, tax exempt association and not divided amongst the members of the terminating association. Not all such associations are necessarily charitable, although the Courts use concepts from charity law to ensure the validity of such gifts over (see, for example, The Darwin Cyclone Tracy Relief Trust Fund).13
The Victorian Law Reform Committee proposal is intended to cover this point.
8.2 THE ADMISSION OF EXTRINSIC EVIDENCE IN THE CONSTRUCTION OF WILLS
STATE | SECTION |
ACT | s12B |
NSW | no provision |
NT | no provision |
QLD | no provision |
SA | no provision |
TAS | s43 |
VIC | s22A |
VIC (1994) | s23 |
WA | no provision |
Apart from statute the law of wills allows the admission of extrinsic evidence in the construction of wills in three cases.
First it recognises the “armchair” rule. The armchair rule allows to be admitted evidence of the circumstances in which a testator made a will, including the testator’s habits of language to assist in the construction of a will. The principle is examined in detail in Wills and Intestacy in Australia and New Zealand14 by Hardingham, Neave and Ford.
Secondly, evidence of the testator’s actual intention, whilst not ordinarily admissible to assist in the construction of a will, is admissible where there is what is described as “equivocation” in the will, that is, where a description, usually of a person, is equally capable of referring to more than one person. Extrinsic evidence of the testator’s actual intention is then admissible which may show that yet another person was intended by the testator.15
Thirdly, where equity raises a presumption of intention, for instance, where equity raises a presumption that a legacy is in satisfaction of a prior debt, or that a legacy is adeemed by a later portions payment, extrinsic evidence of the testator’s actual intention is admissible to fortify or rebut the presumption.16
The potentially restrictive nature of the concept of equivocation in the second principle, and the arcane nature of the third, has understandably led law reformers and legislatures to propose statutory rules respecting the admissibility of extrinsic evidence.
In 1981 Victoria inserted section 22A into its Wills Act 1958 (Vic). The section reads:
Provisions as to the construction of wills
22A. (1) In the construction of a will acts, facts and circumstances touching intention of the testator shall be considered and evidence of such acts, facts and circumstances shall be admitted accordingly but evidence of a statement by the testator declaring the intention to be effected or which had been effected by the will or any part thereof shall not be received in proof of the intention declared unless the statement would apart from this section be received in proof of the intention declared.
(2) Where in any matter relating to the construction of the will any evidence adduced by a party is admissible by reason of and by reason only of the provisions of subsection (1), the party or parties by which that evidence is adduced or relied upon shall bear such part of the costs of the proceedings as is attributable to the introduction of that evidence unless the Court or judge otherwise determines.
The 1994 Report on Reforming the Law of Wills of the Victorian Law Reform Committee recommended the retention of this provision which had been recommended by a Report on the Construction of Wills (1980) by the Victorian Chief Justice’s Law Reform Committee.
In 1982 the Wills Act 1837 (UK) was amended by making provision for the admission of extrinsic evidence in the construction of wills. It allows extrinsic evidence, including evidence of the testator’s intention, to be admitted only:17
(a) in so far as any part [of the will] is meaningless;
(b) in so far as the language used in any part [of the will] is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used [in the will] is ambiguous in the light of surrounding circumstances.
The provision represents a compromise between conservative and progressive voices to be found in a Report of the English Law Reform Committee on the Construction of Wills in 1973.
In 1986 the New South Wales Law Reform Commission recommended the English model in its Report on Wills - Execution and Revocation but the recommendation has not been acted upon.
In 1991 the Australian Capital Territory inserted section 12B in its Wills Act 1968 as follows:
Extrinsic evidence
12B. In proceedings to construe a will, evidence, including evidence of the testator’s dispositive intention, is admissible to the extent that the language used in the will renders the will, or any part of the will -
(a) meaningless;
(b) ambiguous or uncertain on the face of the will; or
(c) ambiguous or uncertain in the light of the surrounding circumstances;
but evidence of a testator’s dispositive intention is not admissible to establish any of the circumstances referred to in paragraph (c).
This provision, in identical terms, is found in the Tasmanian Wills Act 1992.
It is clear from the above that this is a matter which requires careful consideration. What is at stake is the fundamental principle that a will must be in writing; and the extent to which it is appropriate to compromise that principle where there is extrinsic evidence that the writing does not embody the testator’s intention.
8.3 REFERENCE IN A WILL TO A VALUATION
STATE | SECTION |
ACT | no provision |
NSW | no provision |
NT | no provision |
QLD | s67 |
SA | s38 |
TAS | no provision |
VIC | s22B |
VIC (1994) | s36 |
WA | no provision |
There are provisions in Queensland, South Australian and Victorian wills legislation, which are intended to clarify the law in relation to a reference in a will to the taking of a valuation. The issue needs to be considered since it is arguable that in Queensland the provision was linked to estate duty considerations, but in Victoria it is a more general enabling provision.
8.4 WHO MAY SEE A WILL?
STATE | SECTION |
ACT | no provision |
NSW | no provision |
NT | no provision |
QLD | no provision |
SA | no provision |
TAS | no provision |
VIC | no provision |
VIC (1994) | s39 |
WA | no provision |
There is a novel provision in the Victorian proposed Wills Act 1994 which reads as follows:
Draft 39 - Consequential and further amendments to the Administration and Probate Act 1958 ...
66A - Who may see a will?
Any person having the possession or control of a will (including a purported will) of a deceased person must -
(a) produce it in Court if required to do so;
(b) allow the following persons to inspect and, at their own expense, take copies of it, namely -
(i) any person named or referred to in it, whether as beneficiary or not;
(ii) the surviving spouse, any parent or guardian and any issue of the testator;
(iii) any person who would be entitled to a share of the estate of the testator if the testator had died intestate; and
(iv) any creditor or other person having any claim at law or in equity against the estate of the deceased.
A major reason for the proposed insertion of this provision is that sometimes a person having control of a will is reluctant to show it to anyone. The reluctance may be caused by a misconceived view that a will is a private document. Since not all wills are brought to Court for probate, particularly where the estate is small and not worth the expense of taking to Court, possible beneficiaries and other claimants can be placed in an invidious position because they may not know anything. A person with a claim under family provision legislation may not be able to discover whether the testator has made provision for him or her by will and so will not be able to begin to consider whether to make a claim. An intestacy beneficiary may need to know whether the will lacks a valid residuary provision; and a creditor may need to know whether the testator had assets, information which may be discoverable to a certain extent from a will.
The provision does not allow persons not interested to see the will, for instance the press, or creditors of small sums which can be paid quickly by the representative. In any case persons entitled to share in the estate should be able to see the contents of a will. This information is always available once the will has been admitted to probate. This provision is intended to ensure the same thing before the will is admitted to probate.
8.5 DEPOSIT OF WILL IN REGISTRY BY TESTATOR DURING LIFETIME
STATE | SECTION |
ACT | s32 |
NSW | s32 |
NT | no provision |
QLD | no provision |
SA | no provision |
TAS | no provision |
VIC | no provision |
VIC (1994) | no provision |
WA | no provision |
There is a provision in the New South Wales Wills, Probate and Administration Act 1898, section 32, and in the Australian Capital Territory Wills Act 1968, section 32, which permits a testator to deposit a will in the Registry. There is no such provision in the wills legislation of other States; but there may be in administration legislation.
The New South Wales provision raises not only the general issue of whether it is desirable to deposit wills in the Probate Registry before the death of the testator but also the question of whether there should be insistence that all wills, after death, should be brought into Court, whether intended to be admitted to probate or not. That leads to the question of whether there should be a national register of wills of deceased persons. This is a large issue which belongs not to the law of wills as such but to the more general issue of the administration of deceased estates.
FOOTNOTES
1. See Lee, W A “Trusts and Trust-like Obligations with Respect to Unincorporated Associations” Ch 10 of Essays in Equity (Ed P D Finn Law Book Co 1985) at 179.
2. 2nd ed Law Book Co 1990 at 527-531.
3. Report 22 1978.
4. Id at 46.
5. Bacon v Pianta (1966) 114 CLR 634.
6. Re Goodson [1971] VR 801.
7. Re Turkington [1937] 4 All ER 501.
8. Re Drummond [1914] 2 Ch 90.
9. [1959] AC 457 at 477.
10. [1917] AC 406 at 437.
11. For instance, by statute, eg Conveyancing Act 1919 (NSW) s37D; Trusts Act 1973 (Qld) s104; Trustee Act 1936 (SA) s69a; Property Law Act 1958 (Vic) s131; Trustees Act 1962 (WA) s102.
12. [1971] AC 424.
13. (1979) 39 FLR 260.
14. Law Book Co 2nd ed 1989 at para 1103.
15. Re Fleming [1963] VR 17 is a remarkable illustration of this rule.
16. Re Tussaud’s Estate (1878) 9 Ch D 363 at 373-375.
17. Administration of Justice Act 1982 (UK) s21.
