SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EQUITY TRUSTEES WEALTH SERVICES LTD v WEDGE
[2021] SASC 80
Judgment of the Honourable Justice Blue
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - STATUTORY RULES OF CONSTRUCTION
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - CONTINGENCY INVOLVING DEATH - DEATH COUPLED WITH CONTINGENCY
The applicant executor and trustee seeks determination of the question whether, on the proper construction of the will of Claire Wedge, a contrary intention within the meaning of section 36 of the Wills Act 1936 (SA) appears, so as to exclude the application of that section to the distribution of her estate.
Claire had three children: Michael, Patricia and David. Michael had two children. Michael died before Claire.
On 3 July 1987 Claire made a will giving the balance of her estate (if, as transpired her husband should not survive her) “for such of them my said children [Michael, Patricia and David] as shall survive me and if more than one in equal shares absolutely”.
Held:
1On its proper construction, a contrary intention appears in the will so as to exclude the application of section 36 of the Wills Act 1936 to the distribution of Claire’s estate (at [76]).
2Observations on the desirability of legislative review of section 36 (at [81]).
Wills Act 1936 (SA) s 36; Inheritance (Family Provision) Act 1972 (SA); Wills Act 1837 (UK) s 33; Administration of Justice Act 1982 (UK) s 33; Succession Act 1867 (Qld) s 65; Succession Act 1981 (Qld) ss 32, 33, 33N; Wills Act 1928 (Vic) s 31; Wills Act 1997 (Vic) s 45; Wills Act 1968 (ACT) s 31; Wills Act 2000 (NT) s 40; Wills Act 2008 (Tas) s 55; Wills, Probate and Administration Act 1898 (NSW) s 29, referred to.
Bassett v Hall [1994] 1 VR 432; Burman v Burman (Court of Appeal, Supreme Court of Queensland, McPherson and Pincus JJA, Helman J, 1 September 1998); Estate of Elizabeth Emily Jenkinson [2000] NSWSC 495; Hives v Machin [2017] EWHC 1414 (Ch); In re King, deceased; King v King [1953] VLR 648; In the Estate of Koppie [2019] ACTSC 106; Ling v Ling [2002] WTLR 553; Longmore v Longmore; The Estate of Jean Longmore [2018] NSWSC 90; Perrin v Morgan [1943] AC 399 ; Pohlner v Pfeiffer (1964) 112 CLR 52; Public Trustee of Queensland v Jacob [2007] 2 Qd R 165; Public Trustee of Queensland v Robertson [2005] 2 Qd R 444; Rainbird v Smith [2012] EWHC 4276 (Ch); Re Meredith [1924] 2 Ch 552; Re Paton (Supreme Court of Queensland, Byrne J, 15 December 1994); Re the Will of Macaudo [1993] 2 Qd R 269; Sibley v Cook (1747) 3 Atk 572; Stevens v King [1904] 2 Ch 30; The Public Trustee v Freeman; In re Lathbridge, deceased [1958] VR 366, considered.
EQUITY TRUSTEES WEALTH SERVICES LTD v WEDGE
[2021] SASC 80
BLUE J: The applicant, Equity Trustees Wealth Services Limited (Equity…
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- AGLC
- Equity Trustees Wealth Services Ltd v Wedge [2021] SASC 80
- Case
- [2021] SASC 80
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CaseChat Overview and Summary
The court conducted an objective construction of Claire's will and found that the will did indeed express a contrary intention to the statutory provisions. Clauses 3 and 4 of Claire's will explicitly directed that her estate should be distributed to her surviving children in equal shares, irrespective of whether any of them predeceased her. The court held that this expressed intention was clear and unambiguous, thereby excluding the application of section 36 of the Wills Act. The court also suggested that the legislature might consider reviewing the statute to address potential ambiguities in similar cases in the future. Consequently, the court ruled that the statutory provisions did not apply to the distribution of Claire's estate and that her estate should be distributed according to the explicit intentions set forth in her will.
Orders
Orders of the court
Held:
1 On its proper construction, a contrary intention appears in the will so as to exclude the application of section 36 of the Wills Act 1936 to the distribution of Claire’s estate (at [76]).
2 Observations on the desirability of legislative review of section 36 (at [81]).
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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