Equity Trustees Wealth Services Ltd v Wedge

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 Trustees), seeks determination[1] of the question whether, in the events that have happened and on the proper construction of the will of Claire Edna Wedge (Claire), a contrary intention within the meaning of section 36 of the Wills Act 1936 (SA) (the Act) appears, so as to exclude the application of that section to the distribution of Claire’s estate.
[1] Pursuant to rule 232.2 of the Uniform Civil Rules 2020 (SA) or section 69 of the Administration and Probate Act 1919 (SA).
Claire and her husband John Wedge (John) (who died before her) had three children: Michael Anthony Wedge (Michael), Patricia Diane Wedge (Patricia) and David John Henry Wedge (David).
Michael and his wife Julie Christine Wedge (Julie) had two children: Kirsty Jane Wedge (Kirsty) and Damian John Wedge (Damian). Michael died before Claire. Julie is the executor of his estate.
Patricia, David and Julie are the third, fourth and fifth respondents. Kirsty and Damian are the first and second respondents.
Background
As at mid 1987 Michael’s two children Kirsty and Damian were seven and five years old respectively. Patricia had one child, who was one year old.
In May 1987 John and Claire were referred by the ANZ Bank to ANZ Executors & Trustee Company (South Australia) Limited (now renamed Equity Trustees Wealth Services Limited) (ANZ Executors) for the purpose of making wills.
On 21 May 1987 John and Claire attended an interview with ANZ Executors. An officer or employee of ANZ Executors recorded the assets of John and Claire, which included a house and another asset held as joint tenants valued at $120,000 in total, other assets of John valued at $30,000 in total and monies held at the ANZ Bank by Claire totalling $70,000. The officer or employee recorded that Claire’s monies held with the ANZ Bank were to be left to the children equally and the residue to John if he survived her by one month and if not for the children equally.
An officer or employee of ANZ Executors at the interview or subsequently handwrote the variable components of what became Claire’s will. The operative clauses (3 and 4) of the will are essentially in the same terms as the handwritten version.
On 3 July 1987 John and Claire executed their respective wills. Subject to one qualification, they were mirror wills. The qualification is that John’s will contains no equivalent of clause 3 of Claire’s will. Each appointed (by clause 2) ANZ Executors to be their executor and trustee.
Clauses 3 and 4 of Claire’s will (the Will) provided:
3 I DIRECT my Trustees to hold all moneys standing to the credit of my account with Australia & New Zealand Banking Group Ltd and all my Bank endorsed or accepted Bills of Exchange together with any interest due and accrued due thereon at my death to such of them my children MICHAEL ANTHONEY WEDGE PATRICIA DIANE WEDGE and DAVID WEDGE as shall survive me and if more than one in equal shares absolutely.
4 I GIVE the balance of my estate to my Trustees UPON TRUST TO PAY thereout my debts funeral testamentary and other expenses incurred in respect of my death and also Estate Succession and other duties whatsoever which shall be payable in consequence of my death in respect of my estate or any property deemed to form part of my estate for the purpose of assessment and payment of duty or any benefits conferred by this my Will or any Codicil hereto without recovering any portion of any such duties from any person AND TO STAND POSSESSED of the balance remaining (hereinafter referred to as “my residuary estate”) for my husband JOHN WEDGE if he shall survive me by one calendar month absolutely and if he shall not so survive me THEN for such of them my said children MICHAEL ANTHONEY WEDGE PATRICIA DIANE WEDGE and DAVID WEDGE as shall survive me and if more than one in equal shares absolutely.
Subsequently, Patricia’s second child and David’s child were born.
In May 1996 John died and in November 1996 probate was granted to ANZ Executors as his executor.
In July 2017 Michael died and in April 2020 probate was granted to Julie as his executor. By his will, he gave all of his estate to Julie.
In November 2019 Claire died and in July 2020 probate was granted to Equity Trustees as executor. Her principal assets were an accommodation bond and managed investments managed on her behalf by the Public Trustee. She was also the beneficial owner of approximately $13,000 held in a bank account on her behalf by the Public Trustee. It is not disclosed with which bank that account was held.
On or before 11 January 2021 solicitors for Kirsty and Damian foreshadowed an intention to issue a family inheritance claim pursuant to the Inheritance (Family Provision) Act 1972 (SA).
On 21 January 2021 Equity Trustees wrote to the solicitor for Patricia saying that, pursuant to section 36 of the Act, the residuary estate was to be distributed equally between Patricia, David and the estate of Michael (of whom Julie was the executor).
On 3 February 2021 Patricia’s solicitor wrote to Equity Trustees enclosing an advice from Queen’s Counsel and contending that section 36 of the Act had no application and Equity Trustees would be acting unlawfully if it proceeded to distribute the estate in the manner contemplated.
On 18 and 19 February 2021 respectively, Equity Trustees’ solicitor wrote to the solicitor acting for Kirsty and Damian and the solicitor acting for Patricia saying that, in her opinion, based on the decision of the Full Court of the Supreme Court of Victoria in Bassett v Hall,[2] section 36 of the Act does not apply to Claire’s will.
[2] [1994] 1 VR 432.
Equity Trustees subsequently instituted this proceeding seeking, amongst other things, determination of the question set out above.
Hearing
I received three affidavits sworn by Shona Hoskins, solicitor for Equity Trustees, exhibiting documents and correspondence, and one affidavit by Mercia Chapman, senior legal counsel employed by Equity Trustees, exhibiting documents and correspondence and explaining the practice of ANZ Trustees.
I also received the grant of probate in respect of John’s will and his will attached.
Patricia made submissions contending that the Will evinces a contrary intention and section 36 of the Act therefore does not apply. The other respondents made no submissions and agreed to abide the event. Equity Trustees made submissions to assist the Court without contending for or against the application of section 36 of the Act.
Section 36
Section 36 of the Act provides:
36—Gifts to children or other issue who leave issue living at the testator's death do not lapse
Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of that person dies in the lifetime of the testator leaving issue and any such issue of that person is living at the time of the death of the testator, the devise or bequest does not lapse, but takes effect as if the death of that person had happened immediately after the death of the testator unless a contrary intention appears by the will.
Section 36 modified the common law and must be understood in the context of the common law.
Common law context
Under the common law, if a testator left property to a person (whether named or described by reference to a class) who died before the testator, ordinarily the gift to that person lapsed[3] and there was an intestacy in respect of that property unless it fell under another provision of the will (such as a gift of the residue of the estate if the gift in question was of specific property).[4]
[3] Technically, if the gift was made to more than one person collectively (named or members of a class), the gift did not “lapse” because it passed to the survivor(s). However, it is convenient to describe the gift from the perspective of the deceased’s intended beneficiary as lapsing.
[4] Elliott v Davenport (1705) 1 P. WMS. 84 (24 ER 304) per the Lord Keeper; Maybank v Brooks (1780) 1 Bro. C.C. 84 (28 ER 1000) per Lord Thurlow LC.
If the testator manifested an intention that, if the intended beneficiary died before the testator, the gift was to pass to the intended beneficiary’s estate, the gift did not lapse but passed to the legal personal representative in that capacity.[5] For example, in Sibley v Cook[6] the gift was expressed to be to “Ann the wife of Richard Wensley, and to her executors or administrators” and Lord Hardwicke LC held that the gift passed to Ann’s executor.
[5] Sibley v Cook (1747) 3 Atk. 572 (26 ER 1130) per Lord Hardwicke; Long v Watkinson (1852) 17 Beav. 471 (51 ER 1116) at 474 per Sir John Romilly MR.
[6] (1747) 3 Atk 572 (26 ER 1130).
If the testator manifested an intention to discharge a moral obligation by making the gift, the gift did not lapse but passed to the legal personal representative of the deceased beneficiary. Originally this exception applied to debts that were not legally enforceable because they were statute barred, discharged by the operation of bankruptcy or for another reason.[7] Subsequently, it was applied to any moral obligation.[8] Thus, in Stevens v King[9] Farwell J said:
… the rule that, if the Court finds, upon the 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 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.[10]
[7] Williamson v Naylor (1838) 3 Y. & C. Ex. 208 (160 ER 676) at 208 per Alderson B; Philips v Philips (1844) 3 Hare 281 (67 ER 388) at 299-301 per Sir James Wigram VC; In the Trusts of Sowerby (1856) 2 Kay & J. 630 (69 ER 935) at 632-634 per Sir W. Page Wood VC; Turner v Martin (1857) 7 De G.M. & G. 429 (44 ER 168) at 432-433 per Lord Cranworth LC.
[8] Stevens v King [1904] 2 Ch 30 at 33 per Farwell J; Re Leach [1948] Ch 232 at 237-238 per Vaisey J.
[9] [1904] 2 Ch 30.
[10] At 33.
A will can provide that, in the event that an intended beneficiary does not take a gift, the gift is to pass to an alternative beneficiary (a gift over). For example, a will might give a gift to the testator’s daughter but, if she should die before the testator, the gift is to pass to the testator’s daughter’s child.
A provision in a will is to be construed objectively, by reference to its text, context and evident purpose, rather than by reference to the subjective unexpressed intention of the testator.[11] In this respect, the approach is the same as that to the construction of a provision in a contract or deed or, indeed, in a statute.
[11] Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC (with whom Lord Atkin agreed), 416 per Lord Thankerton and 421 per Lord Romer (with whom Lord Russell of Killowen agreed).
In the eighteenth and nineteenth centuries, and even into the twentieth century, what would today be regarded as indications of objective intention tended to be expressed, and regarded, as rigid or semi-rigid rules of the common law. Thus, in the mid-twentieth century, in Perrin v Morgan,[12] Lord Romer was obliged to observe, in the context of settled rules of construction as to the meaning of particular words and phrases:
the rules of construction … 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.[13]
[12] [1943] AC 399.
[13] At 421.
The considerations referred to at [25] to [27] above originally tended to be framed in terms of rigid rules of the common law. Today, they should be seen as aspects of the proper construction of the will. At common law (ie subject to statute), if a will manifests an intention that a gift is to lapse if the donee dies before the testator, the gift will lapse. If a will manifests an intention that a gift is not to lapse, but is to vest in the donee’s legal personal representative, if the donee dies before the testator, the gift will not lapse. If the gift is merely expressed to be to the donee without any manifestation of intention that the gift is not to lapse, the gift will lapse.
Statutory history
Section 36 re-enacted (with only grammatical changes) section 33 of the Wills Act 1837 (1 Vict c 26) (Eng & Wales), which was adopted as part of the law of South Australia by the Wills Act 1842 (No 16 of 1842). The 1842 Act was repealed by the Act in 1936. Section 33 of the 1837 English Act provided:
XXXIII. And be it further Enacted That where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue and any such issue of such persons shall be living at the time of the death of the testator such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator unless a contrary intention shall appear by the will.
The law in South Australia has effectively been unchanged since 1842. The other States originally had similar statutory provisions. However, the statutory provisions in the other States and in the Territories and in the United Kingdom have been very substantially modified.
In 1947 Victoria enacted a new section 31 of the Wills Act 1928 (Vic) in substitution for the previous section 31 which was largely identical to section 36 of the Act. It made several changes. One change was that, when the section operated, the gift passed to the issue of the deceased intended beneficiary (provided they attained 21 years or married) rather than their estate. Like the original section 33, it was subject to a contrary intention. In 1958 section 31 was re-enacted as section 31 of the Wills Act 1958 (Vic).
In 1981 Queensland enacted the Succession Act 1981 (Qld), which repealed the Succession Act 1867 (Qld), section 65 of which had been largely identical to section 36 of the Act. Subsections 33(1) and (2) of the Succession Act 1981 (Qld) originally provided:
33 Statutory substitutional provisions in the event of lapse
(1)Unless a contrary intention appears by the will, where any beneficial disposition of property is made to any issue of the testator (whether as an individual or as a member of a class) for an estate or interest not determinable at or before the death of that issue and that issue is dead at the time of the execution of the will or does not survive the testator for a period of thirty days, the nearest issue of that issue who survive the testator for a period of thirty days shall take in the place of that issue and if more than one nearest issue so survive, shall take in equal shares and the more remote issue of that issue who survive the testator for a period of thirty days shall take by representation.
(2)A general requirement or condition that such issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section.
In 1982 the United Kingdom enacted the Administration of Justice Act 1982 (UK), which amended the Wills Act 1837, including by substituting a new section 33 for the existing section 33 of the 1837 Act. The substituted section 33 relevantly provided:
33    Gifts to children or other issue who leave issue living at the testator’s death shall not lapse.
(1)Where—
(a)     a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b)     the intended beneficiary dies before the testator, leaving issue; and
(c)     issue of the intended beneficiary are living at the testator’s death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.
(2)Where—
(a)     a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator; and
(b)     a member of the class dies before the testator, leaving issue; and
(c)     issue of that member are living at the testator’s death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included the issue of its deceased member living at the testator’s death.
(3)Issue shall take under this section through all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent would have taken and so that no issue shall take whose parent is living at the testator’s death and so capable of taking.

In 1991 the Australian Capital Territory substituted a new section 31 for existing section 31 of the Wills Act 1968 (ACT). The original section 31 was largely identical to section 36 of the Act. The new section 31 was broadly along similar lines to the Queensland provision, although it was much more complex. Subsection 31(4) was equivalent to subsection 33(2) of the Queensland provision:
(4)A general requirement or condition in a will that an original beneficiary survive the testator or attain a specified age shall not be taken to be an expression of a contrary intention for this section.
In 1994 the Law Reform Committee of the Victorian Parliament published a report entitled Reforming the Law of Wills. It recommended, amongst other things, adopting a provision similar to subsection 33(2) of the Queensland Act to avoid the result in Re King. It said:
It is quite common for a testator to refer to a beneficiary’s surviving. But if the beneficiary is issue of the testator the policy of the legislation is that the disposition should not lapse if there are issue of the beneficiary who survive the testator. A contrary intention must therefore be more explicit and a mere reference to surviving. It will usually take the form of an explicit gift over, that is “to A, but if A predeceases me, to B”.
…
The [proposed] wording is an attempt to meet the problem which occurred in Re King. The Committee considers that it would be better to use the usual language and say:
The provisions of this section do not apply if a contrary intention appears in the will
but to add:
but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purpose of this section.
This is the provision in Queensland and should have the effect that Re King would not be decided in the same way in future.
…
The Working Party notes the decision in Re King deceased …, in which it was held that a gift to such of two sons as was living at the testator’s death indicated a contrary intention for the purposes of Section 32 of the Wills Act1958, has been the subject of a good deal of criticism. The Working Party is of the view that, when the proposed new section is drafted, care needs to be taken to ensure that wording such as that considered in Re King deceased is not held to constitute a “contrary intention”.
Recommendation 25
That the substance of Section 31 be retained but that the draft set out above be adopted as the model for the new section and that the effect of the decision in Re King deceased be negatived.[14]
[14] At 193, 194 and 275. (Footnotes omitted)
In 1997 Victoria enacted the Wills Act 1997 (Vic), which repealed the Wills Act 1958 (Vic). Section 45 (as amended shortly after its enactment) provided:
45    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—
(a)the disposition is not a disposition to which section 43 applies; and
(b)one or more of the issue do not survive the testator for thirty days; and
(c)     the interest in the property is not determinable at or before the death of the issue—
the issue of the deceased issue who survive the testator for 30 days take the deceased issue's share of the disposition in place of the deceased issue in the same manner as if the testator had died intestate and as if the testator had died leaving only issue surviving.
(2)Subsection (1) applies to dispositions to issue either as individuals or as members of a class.
(3)Subsection (1) does not apply if a contrary intention appears in the will, but a general requirement or condition that a beneficiary survive the testator or attain a specified age does not indicate a contrary intention for the purposes of this section.
(4)If an original beneficiary under a will—
(a)is issue of the testator; and
(b)did not survive the testator by 30 days; and
(c)     did not fulfil a contingency required by the will—
subsection (1) does not operate to entitle issue of that beneficiary to a disposition under the will.
In 1997 the National Committee for Uniform Succession Laws provided a Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (authored by the Queensland Law Reform Commission). It contained a model Wills Bill 1997, clause 40 of which was closely modelled on section 45 of the 1997 Victorian Act. It said amongst other things:
There are substantial arguments both for retaining a general anti-lapse rule and for a provision that the benefit saved should be distributed per stirpes among the surviving issue of the intended beneficiary.
One argument is that the anti-lapse rule corrects testaments that have failed to express the reasonably predictable intention of testators in the unforeseen event of their children predeceasing them leaving issue surviving them. Parents ordinarily assume, even when making a will, and particularly if they make a will without legal advice, that their children will survive them. It is not improper for the law to consider what should be done if it appears that the testator has not contemplated the possibility that he or she is not survived by his or her children.
Secondly, an anti-lapse rule ensures that grandchildren take the share intended for their parent. Submissions received in connection with this project and other succession law projects, suggest that nothing causes greater disharmony within the family than a will which, as far as those disappointed by it are concerned, gives some family members an unfairly large share of the estate and others an unfairly small share.
It has always been an accepted principle of equity, when it has concerned itself with the disposition of benefits, persons in the same position, that is, relations in the same degree, such as brothers and sisters, should be treated equally.
For example, suppose that a testator makes a will leaving the estate to “such of my children as survive me and if more than one in equal shares”. The testator dies leaving one surviving child, A, and four grandchildren, A1 (A’s child), B1 (the child of B, a pre-deceased child of the testator’s), and C1 and C2 (the children of C, another predeceased child of the testator’s). If there were no anti-lapse rule, A would take the entire estate, which would presumably pass to A1 on A’s death. B1, C1 and C2 would take nothing. Under the anti-lapse rule, however, B1 will take the share the testator intended for B, and C1 and C2 will take between them the share intended for C. The fairness of that outcome scarcely needs justification.[15]
[15] At 84-85.
In 2000 the Northern Territory enacted the Wills Act 2000 (NT). Section 40 was closely modelled on clause 40 of the model Wills Bill 1997.
In 2006 Queensland enacted the Succession Amendment Act 2006 (Qld), which replaced Part 2 of the Succession Act 1981 (Qld) which addressed wills. New section 33N replaced existing section 33. It was modelled on the model Wills Bill 1997 but contained modifications to it. It provided:
33N Dispositions not to fail because issue have died before testator
(1)This section applies if—
(a)     a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator (an original beneficiary); and
(b)     under the will, the interest of the original beneficiary in the property does not come to an end at or before the original beneficiary’s death; and
(c)     the disposition is not a disposition of property to the testator’s issue, without limitation as to remoteness; and
(d)     the original beneficiary does not survive the testator for 30 days.
(2)The issue of the original beneficiary who survive the testator for 30 days take the original beneficiary’s share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving.
(3)Subsection (2) does not apply if—
(a)     the original beneficiary did not fulfil a condition imposed on the original beneficiary in the will; or
(b)     a contrary intention appears in the will.
(4)A general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for subsection (3)(b).
(5)A disposition of property to issue as joint tenants does not, of itself, show a contrary intention for subsection (3)(b).
In 2006 the National Committee for Uniform Succession Laws provided a Supplementary Report to the Standing Committee of Attorneys General on Wills: The Anti-Lapse Rule (authored by the Queensland Law Reform Commission). It recommended adoption of section 33N of the Queensland Act in lieu of clause 40 of the Wills Bill 1997.
In 2008 Tasmania enacted the Wills Act 2008 (Tas). Section 55 was identical to section 33N of the Queensland Act.
Authorities in other jurisdictions
The parties do not cite any South Australian authorities concerning the meaning or application of the words “unless a contrary intention appears by the will” in section 36 of the Act (or its predecessor). They cite interstate authorities in relation to legislation that was either materially the same as section 36 of the Act or differed in material respects from that provision.
In Re Meredith,[16] the testator gave £100 to his son James and the residue of his estate to his five children (including James). James died before the testator, leaving children. The testator then made a codicil to the will, referring to James’ death, the testator’s (erroneous) belief that the gift to James had lapsed, and gave £100 to each of James’ children. Romer J held that, by the codicil, the testator displayed a contrary intention for the purposes of section 33 of the English Act. Although oft-cited, this decision turned on the existence and specific provisions of the codicil and is of no assistance in the present case.
[16] [1924] 2 Ch 552.
In Inre King, deceased; King v King[17] the testator gave her property, if (as transpired) her husband died before her, to “such of them my two sons Sydney Oliver King and Walter Randall King as shall be living at the date of my death and if both shall then be living as tenants in common in equal shares”. Walter died before the testator, leaving a child. O’Bryan J held that the will displayed a contrary intention for the purpose of section 31 of the Wills Act 1928 (Vic) [which, as described above, was in different terms to section 36 of the Act]. O’Bryan J said:
Now if sec 31 were to operate in favour of the son who predeceased the testatrix, Walter Randall Keane, the share which he would have taken if he had survived would go to his daughter. But the testatrix has said that in that event my will is that it shall go to the survivor, namely Sydney Oliver King.
In my opinion, that, as plainly as can be, indicate a contrary intention from what would happen if sec 31 is to be given operation. The testatrix has said in that event I want the property to go to my surviving son—not to the issue of the son who predeceased me. On the other hand, she has expressed no intention as to who is to take the property if both her sons were to predecease her; and so, if that event had happened, the last part of sub-sec. (2) would have come into operation and in that case she would not be taken as having expressed an intention that the section shall not operate merely because she has made survivorship a condition of their taking.[18]
[17] [1953] VLR 648.
[18] At 651.
In The Public Trustee v Freeman; In re Lathbridge, deceased[19] the testator gave her property, if (as transpired) her husband died before her, “to be divided between my surviving children equally”. Two children died before the testator, leaving one child each. Lowe J held that the will displayed a contrary intention for the purpose of section 31 of the Wills Act 1928 (Vic), following Re King.
[19] [1958] VR 366.
In 1962 an article by Professor Harold Ford entitled “Lapse of Devises and Bequests” was published in the Law Quarterly Review.[20] Professor Ford said:
Where the legislation is similar to section 33 of the English Act and does not apply to class gifts, a bequest to such of A and B as shall survive the testator may be thought to be outside the legislation if only one of the legatees predeceases the testator, since the testator has indicated what is to be done with the property if either A or B should predecease him. Even in that case a strict view of what is required for the expression of a contrary intent would demand that the testator should show that he is adverting to the very situation which section 33 is aimed at: that it is not enough for him to provide an alternative destination for the property if the legatee should predecease him; he must say what is to happen to the property if the legatee predeceases him leaving issue who survive the testator.[21]
Professor Ford referred to Re King and said:
With respect, it is submitted that the legislation could not be excluded unless the testatrix showed that she had in mind one son predeceasing her leaving issue who survived her.[22]
[20] (1962) 78 LQR 88.
[21] 104-105.
[22] 105.
In Re the Will of Macaudo[23] the testator by clause 8 of his will gave his house “for such and them my sons [Mario and Angelo] as shall be living at the date of my death and if more than one in equal shares as tenant in common.” The testator by clause 9 gave the residue of his estate “for such of my said children as shall be living at the date of my death and if more than one in equal shares as tenants in common”, subject to a proviso that if a child died before him leaving children, such grandchildren should take the share to which his or her parent would have otherwise been entitled. Mario died 13 days after the testator, leaving a child. Derrington J held that section 32 of the Succession Act 1981 (Qld) applied to deem Mario to have died before the testator but section 33 (extracted above) did not apply because the will was made before the 1981 Act came into operation. However, section 65 of the 1867 Act applied to the will. Derrington J held that a contrary intention was manifested in and in respect of clause 9 because of the proviso and this was clear. Derrington J held that a contrary intention was not manifested in respect of clause 8, saying:
The next and final question is whether the presumption of survival of his son would be contrary to the intention of the testator for by the section itself the presumption can arise in the in the absence of such contrary intention. The only basis upon which this could be argued is that there is an expression of substitution in cl. 9 in favour of children of any deceased child, and there is no such provision in cl. 8. However, the expressio unius principle does not apply here because the substitution effected by the statute does not correspond with that expressed in cl. 9. This alone is enough to exclude the above principle, but in any case, applying the appropriate caution, it is difficult to come to the conclusion that even if the first reason were not available, the testator would have manifested a contrary intention to a sufficient degree by this means particularly as in their ordinary meaning the words used lead to a conclusion identical to that reduced by the section. It may confidently be said that no such contrary intention appears.[24]
[23] [1993] 2 Qd R 269.
[24] At 274.
In Bassett v Hall[25] the testator gave her property, if (as transpired) her husband died before her, to “my two sons VICTOR ROBERT HALL … and LEWIS PONSFORD HALL … as shall be alive at the date of my demise. I direct that my estate shall be divided into two equal undivided parts or shares and each son of mine is to receive one equal undivided part or share”. Lewis died before the testator, leaving a child. In this respect, the will was in similar terms to the will in Re King. The Full Court of the Victorian Supreme Court held that the will displayed a contrary intention for the purpose of section 31 of the Wills Act 1958 (Vic) [which, as described above, was in different terms to section 36 of the Act]. Marks, Gobbo and Coldrey JJ said:
On this appeal, it was submitted on behalf of the appellants that … no contrary intention was manifested. It was further argued that it was not sufficient to provide that in the event of the death of one brother, the whole estate passed to the surviving brother. It had to appear that the testatrix had directed her mind to the existence of issue and to the question of issue taking the deceased brothers share. The testatrix, it was said, must specifically advert to the event which s 31 is designed to bring about and then negate its effect. That is, she must evince a specific intention that the children of her deceased issue shall not take.
…
It will be a question in each case as to whether a contrary intention is disclosed in the will. There is no warrant for reading into the statute a requirement that there must be manifested in specific terms an intention to exclude known issue of any beneficiary who does not survive the testator.
In our opinion, where the will provides that in the event of one of the two named beneficiaries predeceasing the testator, the surviving beneficiary was to take the whole gift, this would ordinarily suffice to demonstrate a contrary intention for the purposes of s 31. It is not necessary that there be an exclusion of a gift over to the issue of the beneficiary who predeceased the testator. Such a requirement would be tantamount to saying that the only effective contrary intention would be an express exclusion of s. 31.
… In our view, notwithstanding the criticism that the decision has received from some academic writers [referring to Ford’s article and subsequent textbook co-authored with Hardingham and Neave], the decision in Re King is in our opinion no more than a reasonable example of what was found to be, in the context of that will, a sufficient indication of a contrary intention.[26]
[25] [1994] 1 VR 432.
[26] At 433-434, 434-435, 435.
In Re Paton[27] the testator gave her estate to “such of them my children [Noel, Rosemary, Evon, and Wendy] as shall be living at my death and if more than one in equal shares”. Noel and Rosemary died before the testator, leaving children. Byrne J held that a contrary intention for the purposes of section 65 of the Succession Act 1867 (Qld) was manifested.
[27] (Supreme Court of Queensland, Byrne J, 15 December 1994).
In Burman v Burman[28] the testator by clause 3(p) of her original will left the residue of her estate to such of her three sons as should survive her and provided for gifts to an alternative beneficiary (different in each case) if each son should die before her. After her son Neville died leaving seven children, she made a codicil in which she gave a specific legacy of $6,000 to Neville’s widow and substituted a new clause 3(p) which effectively replicated the original clause but deleted any reference to Neville. The Court of Appeal held that a contrary intention was manifested for the purpose of section 33 of the Succession Act 1981 (Qld). This decision turned on the specific provisions of the will and codicil and the facts of the case and is of no assistance in the present case.
[28] (Court of Appeal, Supreme Court of Queensland, McPherson and Pincus JJA, Helman J, 1 September 1998).
In Estate of Elizabeth Emily Jenkinson[29] the testator gave the residue of her estate “to my said daughter SYLVIA TAYLOR but if she should predecease me then to her husband ALAN LLEWELLYN TAYLOR”. Both Sylvia and Alan died before the testator, leaving a son Stephen. Section 29 of the Wills, Probate and Administration Act 1898 (NSW) was in similar terms to section 36 of the Act. Young J held that the gift over to Alan evinced a contrary intention for the purposes of the statutory provision. This decision turned on the specific provisions of the will and is of no assistance in the present case. However, as to the general approach to the meaning of a contrary intention, Young J said:
There is academic opinion to the effect that s 29 should be strictly construed. [referring to Hardingham Neave & Ford, Wills and Intestacy in Australia and New Zealand] …
The Victorian Supreme Court Appeal Division did not accept that view in Bassett v Hall. Their Honours indicated that to take that view was "tantamount to saying that the only effective contrary intention would be an express exclusion of" the section.
There has not been any reported case as far as I am aware on the point since Bassett v Hall which, as a decision of an interstate Full Court, should normally be followed as of course.
Thus in my view I should not adopt any "strict view" of s 29 but follow the line of cases that indicates that it is ordinarily a sufficient contrary intention if the testator has in the will made a gift over in the event that a particular child does not survive the testator.[30]
[29] [2000] NSWSC 495.
[30] At [11]-[14]. (Citations omitted)

In Ling v Ling[31] the testator gave his residuary estate, if his wife died before him (which occurred) for “all or any of my children or child living at my death or at the expiry of one calendar month therefrom who attain or shall then have attained the age of twenty one years and if more than one then as tenants in common in equal shares absolutely”. His son Ralph died before the testator, leaving a son. Etherton J held that the will did not evince a contrary intention for the purpose of section 33 of the Wills Act 1837 (UK). Etherton J said, amongst all things, that the expression “living at my death or at the expiry of one calendar month therefrom”
gives no indication of an intention to exclude Ralph’s issue (as distinct from Ralph himself) taking Ralph’s share under the provisions of subsection 33(2) of the 1837 Act.[32]
[31] [2002] WTLR 553.
[32] At [28].
In Public Trustee of Queensland v Robertson[33] the testator gave his estate to his children Louis and Suzette “as shall survive me for a period of 30 days and if both in equal shares”. Louis left Australia and Douglas J found that the executor was entitled to act on the basis that he had died not later than 30 days after the death of the testator (leaving a child) and, by reason of section 32 of the Succession Act 1981 (Qld), was deemed to have died before the testator. Douglas J held that the will manifested a contrary intention for the purpose of subsection 33(1) and provided more than “a general requirement or condition that such issue survive the testator” within the meaning of subsection 33(2) of the Succession Act 1981. Douglas J said:
The problem with the application of s. 33 particularly arises because of the language of s. 33(2) that a general requirement or condition that such issue survive the testator is not a contrary intention for the purpose of the section.
…
The language in this will goes beyond a general requirement or condition that the issue survived the testator in specifying that the residue goes to such of the children "as shall survive me for a period of 30 days" and goes on to say and "if both in equal shares". The clear inference from that use of language is that if one child does not survive the testator for 30 days the other child takes the whole of the residuary estate.
That seems to me to be something more than a general requirement or condition that the issue survive the testator and if it were necessary I would prefer the views of Justice Byrne [in Re Paton] to those of Justice Kneipp [in Re Trenfield] in the two single Justice decisions to which I have just referred.[34]
[33] [2004] QSC 331, [2005] 2 Qd R 444.
[34] At 447.
In Public Trustee of Queensland v Jacob[35] the testator gave the residue of her estate to “such of them my children [Leslie, William, Margaret, Leonard and Robert] as shall survive me for a period of thirty (30) days and if more than one in equal shares”. Leslie died before the testator, leaving a child. The will was effectively in the same terms as the relevant provision of the will in Public Trustee of Queensland v Robertson. White J held that the will manifested a contrary intention for the purpose of subsection 33(1) and provided more than “a general requirement or condition that such issue survive the testator” within the meaning of subsection 33(2) of the Succession Act 1981 (Qld). White J referred to many of the authorities addressed above and concluded:
The words "if more than one in equal shares" cannot be surplusage. Without s 33(2) the plain meaning is that the testatrix wished to benefit survivors. The mischief sought to be remedied by the inclusion of s 33(2) is also plain. But the meaning contended for, namely, that the words are descriptive of the size of the gift is not compelling. Anything other than equality of shares would need to be specified not the reverse. Whatever the commentators might wish and what might be the practice and without adhering to form over substance, when a testatrix says "to those of my children [who are named] as shall survive me for a period of thirty (30) days and if more than one in equal shares" she must intend to benefit by those words only her surviving children and not their issue. This conclusion is amply supported by the authorities to which I have referred.[36]
[35] [2006] QSC 372, [2007] 2 Qd R 165.
[36] At [48].
In Rainbird v Smith[37] the testator gave her residuary estate for “such of them my Daughters, [Jacqueline, Janet and Gwendoline] as shall survive me and if more than one in equal shares absolutely”. Janet died before the testator, leaving two daughters. Janet’s daughters were joined as defendants but did not appear and consented to the order sought by Jacqueline. Mr John Baldwin QC (sitting as a Deputy Judge) declined to follow Ling v Ling and held that the will evinced a contrary intention for the purpose of section 33 of the Wills Act 1837 (UK). Mr John Baldwin QC said:
When I looked at this Will it seemed to me perfectly clear that the intention of the testatrix was to leave her estate only to those daughters which survived her… Had the intention been to leave the bequest merely to the daughters, the language would not have included the words “such of them as shall survive”, it would have been upon trust for my daughters A, B and C.
Furthermore, the use of the language “and if more than one in equal shares” shows to my mind that the amount each one of them might get is in the nature of a movable feast in that it will increase if any of the other daughters pre-decease the testator.[38]
[37] [2012] EWHC 4276 (Ch), [2013] WTLR 1609.
[38] At [9]-[10].
In Hives v Machin[39] the testator, by clause 5 of her will, gave her residuary estate for “such of my son [Peter] my said son [Eric] and my said son [Christopher] who shall be living at the date of my death and if more than one in equal shares absolutely”. Eric died before the testator, leaving a daughter. Christopher also died before the testator. Timothy Fancourt QC (sitting as a Deputy Judge) followed Ling v Ling and declined to follow Rainbird v Smith and held that the will did not evince a contrary intention for the purpose of section 33 of the Wills Act 1837 (UK). Timothy Fancourt QC said:
Where a codicil made after the death of a beneficiary showed that the gift should indeed lapse, there was a sufficient contrary intention. In other circumstances, what appears to be necessary is language of the will to show that the devise or bequest in question should not take effect, in the specified circumstances, as a devise or bequest to the living issue of the deceased’s beneficiary. Thus, an express provision for a different substitution (or none) in the event of death would be sufficient. But the mere fact that the will would otherwise have a different effect will not suffice, as that is merely the trigger for the application of section 33.
…
The words of clause 5 relied upon do say that the residuary estate will be shared equally by such of Marjorie’s three sons who shall survive her. There is no ambiguity about them. If section 33 does not apply, the words of clause 5 have the effect of sharing the estate between the survivors. But clause 5 says nothing about whether the statutory substitution provisions of section 33 are to be excluded, any more than if the gift had been “to all or any of my sons who shall survive me in equal shares” or simply “to my 3 sons”.
In my judgment, the effect of clause 5 is that, upon the death of one son, the other 2 sons are presumptively entitled to a half share each of the residue, but subject to any further provision made by Marjorie before her death and subject to the operation of section 33. There is nothing to show that surviving issue cannot take a share by substitution. The fact that the words of clause 5 will prevent a share of the residue from collapsing entirely is not, in my view, sufficient to exclude the operation of section 33, which does not depend for its operation on a total lapse of a gift.
The words that Peter relies upon are a standard form of bequest, generally understood to have a particular purpose and effect in a gift of residue. This is, first, as words of severance, so that each beneficiary takes individually, rather than jointly with the others, and, secondly, to avoid a partial intestacy that could otherwise result from such separate gifts. If those words, used for that purpose, also have the effect of excluding section 33, it would follow that some further words are needed to enable issue to take in substitution. Mr Ashwell suggested an express reference to the issue of each beneficiary being able to take the gift in substitution for a deceased beneficiary. While that could doubtless be drafted, it seems to me to have the effect of reversing the presumption underlying section 33, and requiring a testator who wishes to make a conventional gift of residue in that form to ‘contract into’ section 33.[40]
[39] [2017] EWHC 1414 (Ch).
[40] At [25], [28]-[30]. (Citations omitted)
In Longmore v Longmore; The Estate of Jean Longmore[41] the testator gave her estate “equally between such of my children as survive me in equal shares as tenants in common”. Robert, one of the testator’s four children, died before her, leaving a son. Slattery J held that the will evinced a contrary intention for the purposes of section 29 of the Wills, Probate and Administration Act 1898 (NSW). Slattery J declined to follow Re Macaudo. Slattery J considered that he was bound by the decision of the Full Court of the Victorian Supreme Court in Bassett v Hall as to the approach to construction of the will.
[41] [2018] NSWSC 90.
In In the Estate of Koppie[42] the testator gave her estate to “such of my children as shall survive me and attain the age of eighteen (18) years and if more than one in equal shares”. Margaret, one of her children, died before the testator, leaving three children. McWilliam AsJ held that the will did not evince a contrary intention for the purposes of section 31 of the Wills Act 1968 (ACT) principally because subsection 31(4) prevented the requirement that her children survive her and the requirement that they attain a specified age giving rise to a contrary intention. In this respect, McWilliam AsJ did not follow Public Trustee of Queensland v Jacob or Kavanagh v Reardon (recognising that they were decided under different statutory provisions). McWilliam AsJ also said:
In Hives v Machin, Fancourt QC was of the view (at [25]) that what appears to be necessary for a finding of ‘contrary intention’ is language of the will to show that the devise or bequest in question should not take effect, in the specified circumstances, as a devise or bequest to the living issue of the deceased’s beneficiary. An express provision for a different substitution (or none) in the event of death would be sufficient, but the mere fact that the will would otherwise have a different effect will not suffice, as that is merely the trigger for the application of the statute. I respectfully adopt this reasoning as a general principle regarding where a contrary intention might arise.
It must be noted that in Hives v Machin, the relevant provision of the English statute was s 33 of the Wills Act 1937 (UK) and although the anti-lapsing effect of that section is the same as s 31 of the Wills Act, it does not contain an additional deeming provision in terms similar to s 31(4) of the Wills Act. However, such a provision might be seen as an example of what the legislature has deemed to be insufficient to amount to a contrary intention. It does not affect the general principle.
…
I have given consideration to whether a contrary intention can be discerned from the words that follow the general condition: “and if more than one in equal shares as tenants in common”, as some of the authorities discussed below have looked to similar words. Such general words do not affect the deemed construction of the general condition of survivorship and attaining 18 years. They speak to how the estate is to be apportioned if the general condition is satisfied. They do not say anything from which a Court could infer an intention (conscious or otherwise) that the bequest not take effect as a bequest including the living issue of the Testatrix’s beneficiary.
Those words are not mere surplusage on a construction of the Will that favours statutory substitution of living issue. Such words mean that if Margaret died leaving no children, the residue is to be divided into 3 equal shares which could then be passed on to whomever each chooses (as opposed to a joint tenancy). As Margaret has surviving children, the words operate to divide the residue into 4 equal shares.
Alternatively, if those words are considered to be relevant to the specific intention of the Testatrix as to the condition that a child of the Testatrix also reach the age of 18, then I would have found that the words confirm the operation of s 31 of the Wills Act, rather than giving any indication of a contrary intention. The apportionment is of equal shares ‘as tenants in common’ rather than joint tenants. Such an arrangement allows the beneficiary to pass the benefit or bequest to his or her issue, or someone else of the beneficiary’s choosing. Dividing the residue as tenants in common is therefore inconsistent with the benefit only being made to the living issue of the Testatrix and no further.[43]
[42] [2019] ACTSC 106.
[43] At [36]-[37], [40]-[42].
Construction of clause 4 of the Will
Clause 3 of the Will only applies to money (in the broadest sense) held with the ANZ Bank. It is not apparent that any of Claire’s property at her death comprised money held with the ANZ Bank and, if it did, it would only have been a small proportion of the total estate. Further, the question whether a contrary intention appears is the same in respect of clause 3 as it is in respect of clause 4. I therefore address only clause 4.
To discern whether a contrary intention appears, it is necessary to construe the Will and the Will must be construed objectively as explained above. The objective approach to the question whether a contrary intention appears is confirmed by the approach of the High Court in Pohlner v Pfeiffer,[44] in which the High Court considered whether a contrary intention appears within the meaning of section 27 of the Act (which provides that a will speaks with reference to the property comprised in it as if executed immediately before death “unless a contrary intention appears by the will”). Windeyer J said:
[T]he correct view is, I think, that whether or not a contrary intention appears depends upon the meaning of the will construed according to ordinary principles of construction, and in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time he made his will.[45]
[44] (1964) 112 CLR 52.
[45] At 77.
Although clause 4 must be construed as a whole (and in the context of the Will as a whole), the relevant operative provision is
I GIVE the balance of my estate to my Trustees UPON TRUST … for such of them my said children MICHAEL ANTHONEY WEDGE PATRICIA DIANE WEDGE and DAVID WEDGE as shall survive me and if more than one in equal shares absolutely.
Patricia contends that clause 4 manifests a contrary intention to the operation of section 36 of the Act because, by providing that the residue of the estate passes to such of her three children as survive her and if more than one in equal shares, Claire explicitly contemplated that one or more of her children might die before her and provided that, in that event, her estate should pass only to her surviving children or child.
No party puts a contrary contention and it is necessary to articulate what the contrary contention might be. That contention is that clause 4 only makes explicit what would otherwise be implicit, namely that under the common law a gift does not pass to an intended beneficiary who dies before the testator; clause 4 only addresses what is to happen if one of Claire’s children dies without issue, leaving section 36 to operate if that child dies with issue; and for there to be a contrary intention the Will would need to evince affirmatively an intention that in the circumstances that have occurred, namely one child dying before Claire leaving children, the interest that would otherwise have passed to that child is not to pass to that child’s estate (for the benefit, directly or indirectly, of those children).
In construing clause 4, it is relevant to take into account the surrounding circumstances known to Claire. Although no direct evidence was adduced, I infer that Claire knew, when she made her will, that two of her three children had children themselves and there was a reasonable prospect that all three children would have children themselves by the time that Claire died. Objectively assessed, this surrounding circumstance tends to support Patricia’s contention because, knowing that she had grandchildren and (as evidenced by clause 4 itself) contemplating that one of her children might die before her, Claire nevertheless provided for the residue of her estate to pass to such children as survived her.
None of the authorities referred to above are strictly binding on me. A decision of an Australian intermediate appellate court on the interpretation of uniform national legislation would be binding on me (unless I were convinced that it was plainly wrong).[46] The only relevant intermediate appellate court decision is the decision of the Full Court of the Victorian Supreme Court in Bassett v Hall.[47] However, that decision addressed the construction of section 31 of the Wills Act 1958 (Vic), which was then in quite different terms to the equivalent provisions of the legislation of the other States and the Territories. Moreover, the wills legislation as a whole of the States and Territories was not uniform. It is not necessary to consider the extent to which Bassett v Hall addressed the construction of the legislation as opposed to the construction of the will.
[46] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[47] [1994] 1 VR 432.
The legislation the subject of the decisions considered above falls into three categories. First, there is legislation that, like section 36 of the Act, effectively enacts section 33 of the 1837 English Act. Secondly, there is legislation that differs substantially from section 33 of the 1837 English Act but contains the same provision referring to a contrary intention appearing in the will where the question of the existence of a contrary intention is essentially the same as in the first category. Thirdly, there is legislation that includes a provision modelled on the former subsection 33(2) of the Succession Act 1981 (Qld) which negates a general requirement that the testator’s issue survive the testator or attain a specified age amounting to a contrary intention for the purpose of the operative section.
The following authorities falling within the first and second categories support Patricia’s contention: Re King (1953), Public Trustee v Freeman; Re Lathbridge (1958) and Bassett v Hall (1994) in Victoria, Re Paton (1994) in Queensland, Rainbird v Smith (2012) in England and Longmore v Longmore (2018) in New South Wales.
The following authorities support the opposing contention: Re the Will of Macaudo (1993) in Queensland and Ling v Ling (2001) and Hives v Machin (2017) in England.
Of the authorities falling within the third category, Public Trustee of Queensland v Robertson (2004) and Public Trustee of Queensland v Jacob (2006) support Patricia’s contention. On the other hand, In the Estate of Koppie (2019) in the Australian Capital Territory supports the opposing contention but the Court relied also on the equivalent of subsection 33(2) of the 1981 Queensland Act.
If I were permitted to have regard to Claire’s subjective intention, although there is no evidence as to what her subjective intention was, it is inherently likely that, if she had been asked when making her will what would happen if one of her children died before her leaving their own children, she would have replied that the interest that would otherwise have gone to her deceased child should pass to those grandchildren. However, it is impermissible to speculate about Claire’s subjective intention and I must apply an objective test to ascertain the intention that appears from the text, context and evident purpose of clause 4 of the Will.

When applying an objective test, it is very difficult to escape the logic that, by the provision contained in clause 4, the Will explicitly prescribes what is to happen if one of Claire’s children should die before her, namely that the residue is to be divided between her two surviving children and this is inconsistent with the interest of the deceased child passing to their estate (or to their own children). The fact that clause 4 makes provision for the event of one of Claire’s children dying before her shows that, in an objective sense, the person making the will turned their mind to that event and dictated what should happen.
It is true, as posited above, that if clause 4 had merely said that Claire left the residue of her estate to Michael, Patricia and David, the common law would have implied an intention that the residue should pass only to the survivor; as far as the common law is concerned, Michael’s estate would not have taken a share; and section 36 of the Act would then have operated on the Will with the effect that Michael’s estate would have taken a share. It can then be argued that the mere fact that clause 4 made explicit what would otherwise at common law have been implicit should not make a difference to the operation of section 36 of the Act. However, for the reasons given in the previous paragraph, by making it explicit that, if he or she were to die before her, one of her children would not take the share to which he or she would otherwise have been entitled, the Will itself dictated what should happen in that event.
Applying an objective construction of clause 4 of the Will, a contrary intention to the operation of section 36 of the Act appears.
Legislative reform
South Australia is the only Australian jurisdiction which retains a provision in terms of section 33 of the 1837 English Act. The legislation of all other jurisdictions is now substantially different.
Some of the differences between the South Australian provision and the provisions of the other jurisdictions involve questions of policy. For example, the South Australian provision provides that, when it operates, the share of the deceased child passes to their estate; whereas the provisions in the other jurisdictions provide that, when the provision operates, the share of the deceased child passes to their issue (although there is variation as to the identification of the issue taking). This is purely a question of policy for the legislature.
However, five other jurisdictions have enacted provisions modelled on subsection 33(2) of the 1981 Queensland Act as originally enacted, which provide that a general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for the purposes of the operative provision.[48] The purpose of these provisions (as demonstrated by the Law Reform Committee/Commission reports that preceded the enactments extracted above) was to avoid a provision in a will, such as clause 4 of the Will, that gives property to such of the testator’s children as survive the testator and, if more than one, in equal shares, from being treated as evincing a contrary intention. However, in Public Trustee of Queensland v Robertson and Public Trustee of Queensland v Jacob, it transpired that that provision did not have the intended effect.
[48] Succession Act 1981 (Qld) section 33N(4); Wills Act 1968 (ACT) section 31(4); Wills Act 1997 (Vic) section 45(3); Wills Act 2000 (NT) section 40(3); Wills Act 2008 (Tas) section 55(4).
The number of authorities referred to above which contain clauses giving property to such of the testator’s children as survive the testator suggest that clauses to that effect are common. If regard is had to the subjective intention of testators who execute wills containing such clauses, it is likely that, if asked, they would say that of course the share of a child who dies before them should pass in turn to that child’s children (or alternatively to that child’s estate) if that child should die leaving children. However, the objective test makes assumptions about the testator, such as they think through the consequences rationally and the permutations comprehensively, that are not necessarily true subjectively. A testator making a will may well be overawed by the contemplation of their own death and the process and formality of making a will and may find it a daunting task emotionally and intellectually. If the will is prepared by a lawyer, the testator may be overawed by the legal process; if the will is prepared by a trustee company, the testator may simply accept precedential wording; if the will is prepared by the testator themselves, the testator may not have sufficient knowledge to understand the consequences of the wording contained in the will. In all cases, the testator may not understand the consequences for their grandchildren (born or unborn) of leaving property to their children depending on the wording of the relevant clause in their will.
It is desirable that the legislature review, and give consideration to legislative reform of, section 36 of the Act at least to address clauses such as clause 4 of the Will. One option would be to adopt a provision modelled on subsection 33N(4) of the Succession Act 1981 (Qld) although, as observed above, this might not be effective to achieve its intended purpose. Another option would be to adopt a provision that section 36 operates unless the will provides explicitly for a gift over in the event of a child dying before the testator or explicitly provides that the share that the child would otherwise take is not to pass to that child’s estate or issue (as the case may be depending on whether section 36 is amended to substitute the child’s issue for the child’s estate). Another option would be to adopt a provision worded more broadly than subsection 33N(4) of the Queensland Act to catch with greater certainty clauses such as clause 4 of the Will.
Conclusion
On the proper (objective) construction of the Will, a contrary intention to the operation of section 36 of the Act appears.
Rule 232.2 of the Uniform Civil Rules 2020 (SA) provides that, amongst others, an executor or trustee may apply to the Court for determination of a question that could be determined in a general administration action. This type of procedure was adopted in Pohlner v Pfeiffer[49] and in several of the authorities considered above.
[49] (1964) 112 CLR 52.
It is appropriate to exercise the discretion to determine the question in this case because Equity Trustees, as the executor and trustee under the Will, is in a genuine state of uncertainty as to whether section 36 of the Act applies to the Will and hence how it should distribute the estate.
Accordingly, I determine the question whether, in the events that have happened and on the proper construction of the Will, a contrary intention within the meaning of section 36 of the Act appears so as to exclude the application of that section to the distribution of Claire’s estate in the affirmative.
I will hear the parties as to the orders (including as to costs) to be made to finalise this proceeding and any residual issue remaining to be determined.

[2021] SASC 80

5 July 2021