The notable issue in this decision concerned the proper construction of a contingent gift under a will which named the testator’s brother as his sole beneficiary, unless he had separated or divorced his wife, in which case the beneficiaries were to be their three children. The brother predeceased the testator. Atkinson J considered the rules of construction in respect of contingencies in wills, finding that the real contingency here was that the brother was not living with his wife at the time of the testator’s death. As the real contingency had been satisfied her Honour concluded that the gift over to the brother’s three children should operate.
6 April 2018
In this matter Atkinson J considered whether a handwritten document referred to as “my Will” and deposited with a firm of solicitors was a valid will and if so, how the will ought to be construed.
The deceased, who was one of four children, died in November 2016 at the age of 72, never having married and without issue. . The deceased had deposited documents with a firm of solicitors in Kingaroy in 1994. . Included in those documents was a handwritten document which purported to be a will dated 15 January 1984. .
The document was not witnessed and, accordingly, failed to comply with the formal requirements of s 10 of the Succession Act 1981. . However, Atkinson J considered whether, pursuant to s 18 of the Succession Act, her Honour should declare that the document formed the will of the deceased.
Her Honour was ultimately persuaded that the document purported to state the testamentary intentions of the deceased and made the order. . Her Honour noted that (i) the document was referred to in his handwriting as “my Will”; (ii) it was dated and signed; (iii) it appeared to state the assets which were then available for distribution on his death; (iv) it identified the beneficiaries to whom the property was to be disposed; and (v) the deceased had deposited the document into safe custody with a firm of solicitors, which gave him a receipt describing it as a will. –.
As for the construction of the Will, her Honour referred to the “golden rule” that “if it is possible, the court should prefer a construction which avoids intestacy”. . An issue arose in the present case because the will nominated the testator’s brother as his sole beneficiary, provided that he was not separated or divorced from his wife, in which case the beneficiaries were to be their three children. . The testator’s brother had in fact pre-deceased him.
Atkinson J noted that this was a contingent gift to the three children but the “general rule” was that “when there is a gift over upon a certain contingency, it will not take effect unless the exact contingency happens”. . However, one exception to this rule is the rule in Jones v Westcomb (1711) Prec Ch 316; [24 ER 149], which has been described as applying to:
“a class of cases where, though the exact event upon which the gift over is to take effect does not happen, the gift over must a fortiori have been intended to take effect in the event that happens.” .
Atkinson J considered that the “real contingency” in this case was that the brother might not be living with his wife at the time of the testator’s death. . Her Honour posited that if the testator had been asked what was to happen to his estate if his brother separated from his wife not by choice but by death, it seemed apparent that he would have said “a fortiori his estate was to go to [his brother’s] children”. . Her Honour concluded that the real contingency had been satisfied and the gift over should operate, and made orders accordingly. .