Bain v Demarchi

A difficult issue, and one which would have significant consequences for the applicant, arose in this case, namely whether upon the proper application of s 33B Succession Act 1981, a contrary intention was disclosed in a will. It was clear that the deceased wished to gift the entirety of the estate to his mother, who was the sole executor and the applicant’s wife, unfortunately she died thirteen days after he did. Complicating matters, the “Simultaneous Death Clause” in the deceased’s will was incomplete. The applicant claimed that on its proper construction, s 33B Succession Act 1981 had been excluded and that the estate passed to the deceased’s mother because she had survived the deceased. Justice Crow held that as the mother had not survived the deceased for 30 days her estate did not take under the will.

Crow J

4 September 2023

Briefly, the testator made his last will utilising a will kit. [1]. The pro forma will had eleven clauses and included many lines with no information. He appointed his mother the sole executor and left the entire residuary to her. [2]. Relevantly, the will had a heading “Simultaneous Death Clause” which was left as is:

“If any beneficiary / ies should die at the same time as I should die or within ……… days of my death, then he / she / they shall be deemed to have predeceased me.”

The deceased omitted to specify the number of days, leaving it incomplete.

The applicant, who had been left nothing by his wife (the deceased’s mother), and brought a claim for family provision from her estate, claimed that on its proper construction, s 33B Succession Act 1981 had been excluded and the estate passed to the deceased mother because she had survived the deceased.

The Legislation

Section 33B Succession Act 1981 provides:

“33B Beneficiaries must survive testator for 30 days

(1)If a disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

(3)A general requirement or condition that a beneficiary survive the testator is not a contrary intention.”

Was s 33B(2) satisfied?

In Donald v Guillesser [2016] 1 Qd R 583, [13], Morrison JA observed that for s 33B to apply, there are two preconditions, namely there must be a disposition of property in the will, to a person and the person must die within 30 days after the testator. If they are both met, then s 33B directs that the will takes effect as if the person died before the testator. [5].

Here, it was the case that the operation of s 33B(1) was of critical importance, since if it applied, the result would be that the deceased’s mother would be deemed to have pre-deceased him, with the consequence that the deceased executed a valid will but with no qualifying beneficiaries. That being so, and in the absence of his having had a spouse or issue, his residue would pass to his only relative, the respondent. On the other hand, if s 33B(1) did not apply then since the deceased’s mother survived him, the entirety of his estate would pass into hers and as such it would mean the applicant had a potential financial interest in the deceased’s estate in view of his pending claim for family provision. [6], [7].

The primary question for his Honour was whether “a contrary intention appears in the will” – a question raised in each case: see Bassett v Hall [1994] 1 VR 432, 434-435. Previously the courts have accepted (albeit with respect to the predecessor to s 33B and an equivalent provision), that the inclusion in a will of the wording “that in the event of one of the two named beneficiaries pre-deceasing the testator, the surviving beneficiary would take the whole of the gift” would ordinarily suffice to demonstrate a contrary intention (see Bassett v Hall [1994] 1 VR 432), or the words “if more than one in equal shares” (see Public Trustee of Queensland v Jacob [2007] 2 Qd R 165.

The specific quandary here was that it was the absence of any words in the “Simultaneous Death Clause” which manifested the contrary intention. The applicant argued that, since the deceased did not specify any number of days in that clause, the 30-day survivor rule ought to yield “due to the invitation given to Paulo in the clause to nominate a number of days – any number of days – in which Rhonda, as the only beneficiary named anywhere in the will, should die within Paulo’s death so as to deem a pre-decease. Which invitation Paulo palpably declined to avail himself of”. [13].

His Honour formed the view that the absence of any nominated beneficiary in the Residuary Estate clause (for the scenario where his mother predeceased him) did not in itself suffice to demonstrate a contrary intention. [14]. In addition, he was unprepared to accept the submission that the deceased’s failure to specify any number of days indicated that he intended for his estate to pass to his mother if she survived him “by any measure of time”. [15]. As his Honour pithily put it:

“The argument for Mr Bain is that the failure to nominate any days ought to be interpreted as Paulo evincing an intention in his will that there ought to be no timeline for survivorship. If that were in fact Paulo’s intention, he could have easily inserted ‘zero’ or ‘nil’ in clause 9. The fact that Paulo did not insert anything in Clause 9, in my view, cannot be interpreted as Paulo evincing an intention appearing in his will not to apply the 30-day survivorship rule in s 33B(1). In my view, such a step would amount to speculation... It is uncompelling and does not rise to the level of a contrary intention appearing in the will”. [17].

He considered it more likely that the omission of any words in cl 9 was more compatible with an intention not to disapply the s 33B(1) survivorship rule, noting that the precedent clause is drafted to alert the reader of the clause to direct their attention to a choice of survivorship period of time. It follows that if a person then elects not to nominate any period, logically their intention must be to have the clause read as if the gap in the wording of the clause did not exist, so that the words of the clause are given their ordinary meaning. In those circumstances, the clause in the current matter had the effect of deeming the deceased’s mother to have predeceased him if she died “within days” of his passing. The statutory presumption in s 33B(1) would have the same effect. Either way it did not, in his Honour’s view, amount to a contrary intention within the meaning of s 33B(2). [18]. Accordingly, as the mother had not survived the deceased for 30 days her estate did not take under the will.

In disposing of the matter his Honour also rejected the respondent’s contention that the applicant lacked standing to bring the application. He considered that the determination of the deceased’s estate affected both the quantum of the applicant’s estate and his interest in the estate. Both of those matters supported standing. [19].

Disposition

The application was dismissed.

A Jarro