Re: Rae

In the matter of *Re: Rae*, Carew J of the Supreme Court of Tasmania considered an application for the administration of the estate of the late Mr. Rae. The applicant sought directions from the court regarding the distribution of the deceased's assets, specifically concerning a bequest made to a beneficiary who had predeceased the testator.

The central legal issue before the court was whether the residuary bequest to the deceased's nephew, who had died before Mr. Rae, lapsed or if it passed to the nephew's children under the provisions of the *Wills Act 1840* (Tas). The court was required to interpret the relevant section of the Act concerning the disposition of gifts to issue of a deceased beneficiary.

Carew J reasoned that the *Wills Act 1840* was intended to prevent such bequests from lapsing where the beneficiary leaves issue. The court found that the nephew's children constituted "issue" within the meaning of the Act and were therefore entitled to take the share of the estate that their father would have received had he survived the testator. The court applied the principle that the Act operates to substitute the issue of a beneficiary for the beneficiary themselves in such circumstances, thereby avoiding intestacy for that portion of the estate.