395 Succession Title Coordinators Rosalind F Atherton AMusA, BA(Hons), LLB(Syd), PhD(UNSW) Associate Professor of Law, University of Sydney

y Prue Vines BA(Syd), MA(Syd), Dip Ed(Syd Teachers Coll), LLB(UNSW) Senior Lecturer in Law, University of New South Wales Contributors

I testate succession updated in Service 279 by Alan Leaver LLB (Hons) (Adel) BA (Flinds) GDLP (Uni SA) Barrister and Solicitor of the Supreme Court of South Australia Senior Lecturer, School of Law, Flinders University

II intestacy updated in Service 262 by Stephen Janes BEc LLB (Hons) PhD (Syd) Barrister of the Supreme Court of New South Wales Senior Lecturer, University of Western Sydney

III grants Ch (1) Probate updated in Service 318 by Anna-Louise Katter BA/LLB(Hons), BA(Hons), Grad Dip Legal Practice, LLM Barrister of the Supreme Court of Queensland Ch (2) Adminisration updated in Service 341 by Anna-Louise Katter BA/LLB(Hons), BA(Hons), Grad Dip Legal Practice, LLM Barrister of the Supreme Court of Queensland

IV administration of estates Ch (1) Devolution on the personal representative - Ch (7) Appropriation updated in Service 335 by Marcus Katter BBUS(Man) LLB(Qld), GradDipIL(Syd)

Barrister-at-Law

Ch (8) Litigation by or against personal representatives - Ch (14) Proceedings relating to the internal administration of the estate updated in Service 322 by Marcus Katter BBUS(Man) LLB(Qld), GradDipIL(Syd) Barrister-at-Law

V family provision updated in Service 347 by Bonnie Allan BA LLB(ANU), Grad Dip Legal Practice(ANU) Casual Lecturer/Tutor, Australian National University

Original and Previous Contributors Bonnie Allan BA LLB(ANU), Grad Dip Legal Practice(ANU) Casual Lecturer/Tutor, Australian National University Rosalind F Atherton AMusA, BA(Hons), LLB(Syd), PhD(UNSW) Associate Professor of Law, University of Sydney Bryan Brown BCom(UNSW) Dip Law (SAB) Senior Lecturer, College of Law (NSW) Adrian Coorey BEc/LLB(Hons I)(Macq), LLM(Hons)Cantab), BCom(Macq) Principal Lawyer, Australian Competition and Consumer Commission Lecturer, Macquarie University and University of Western Sydney Gino Dal Pont BCom LLB(Hons)(Tas) LLM(Mich) CPA FTIA Associate Professor, Faculty of Law, University of Tasmania Stephen Janes BEc LLB (Hons) PhD (Syd) Barrister of the Supreme Court of New South Wales Senior Lecturer, University of Western Sydney Anna-Louise Katter BA/LLB(Hons), BA(Hons), Grad Dip Legal Practice, LLM Barrister of the Supreme Court of Queensland Alan Leaver LLB (Hons) (Adel) BA (Flinds) GDLP (Uni SA) Barrister and Solicitor of the Supreme Court of South Australia Senior Lecturer, School of Law, Flinders University

James McConvill LLB(Hons), PhD Solicitor, McConvill Lawyers Charles Rowland BA LLB(Natal) Adjunct Reader, Australian National University Adjunct Professor, James Cook University of North Queensland Marie Snodgrass BA(Hons), LLB(Hons)(Syd) Publisher, Butterworths Robert Watt BCom(UNSW) LLB DipLib(Syd) Solicitor of the Supreme Court of New South Wales Senior Lecturer, University of Technology, Sydney AMBIT OF TITLE The title succession states the law in relation to succession in Australia, including testate and intestate succession, grants of probate and letters of administration, the administration of a deceaseds estate and family provision. Related Titles family law trusts charities contract; mental health charities equity trusts equity coroners public health charities deeds and other instruments family law conflict of laws equity evidence conflict of laws conflict of laws evidence bankruptcy insurance limitation of actions family law family law conflict of laws partnerships and joint ventures perpetuities and accumulations personal property real property adopted children advancement, presumption of bequests to charities capacity charitable trusts choses in action constructive trusts conversion coronial inquests cremation and burial cy-prs schemes deeds, formal requirements divorce domicile election extrinsic evidence foreign law, proof of foreign property, devolution of informal evidence insolvency life insurance limitation of actions marriage maternity and paternity, proof of moveable and immoveable property partners, deceased perpetuities personal property real property

religion perpetuities and accumulations trusts equity trusts family law superannuation negligence taxation and revenue conflict of laws PUBLISHERS ACKNOWLEDGMENT

religious trusts remoteness, rules against resulting trusts satisfaction and ademption secret and half secret trusts status of children superannuation funds survival of actions in the hands of legal personal representative taxation implications of administration validity of foreign wills

The publisher is indebted for aspects of this titles structure and content to the authors and editors of Halsburys Laws of England and to R Atherton and P Vines, Australian Succession Law Commentary and Materials, Butterworths, Sydney, 1996. The publisher also acknowledges the contribution of: Marion Carpenter BA LLB Deanne Castellino BA LLB Jason Harris BA LLB Jennifer Ireland BA LLB Dianne Lloyd BA (Vis A) LLB Christa Mobbs LLB Kirsten Morrin Kerrie Phipps BA LLM Fred Smith BE (Hons) LLB (Hons) Marie Snodgrass BA (Hons) LLB (Hons) The publisher acknowledges the contribution of Mr John K Arthur BA LLB (Monash), Barrister at Law, Owen Dixon Chambers West, Melbourne, Victoria, as Reviewer of Guidecard III Grants (1) Probate. The Authors of Service 239 wish to dedicate IV Administration of Estates to Elizabeth Allen, Lecturer in Law at the Australian National University who died tragically in a motor vehicle accident while working on this Service. Statement of Currency I Testate Succession [395-1]-[395-1230]: 20 September 2007 II Intestacy [395-1500]-[395-2095]: 21 June 2006 III Grants: (1) Probate [395-2400]-[395-2695]: 24 July 2010 (2) Administration [395-3000]-[395-3475]: 6 January 2012

IV Administration of Estates (1) Devolution on the Personal Representative [395-4000]-[395-4080]: 28 July 2011 (2) Administration of Assets [395-4135]-[395-4370]: 28 July 2011 (3) Trusts and Powers of the Personal Representative [395-4450]-[395-4560]: 28 July 2011 (4) Distribution of Assets [395-4600]-[395-4730]: 28 July 2011 (5) Residuary Estate [395-4785]-[395-4845]: 28 July 2011 (6) Assents and Acknowledgments [395-4900]-[395-4940]: 28 July 2011 (7) Appropriation [395-4995]-[395-5005]: 28 July 2011 (8) Litigation By or Against Personal Representatives [395-5500]-[395-5540]: 29 September 2010 (9) Limitation Periods [395-5595]-[395-5605]: 29 September 2010 (10) Parties [395-5660]-[395-5670]: 29 September 2010 (11) Liabilities of Personal Representatives [395-5725]-[395-5740]: 29 September 2010 (12) Devastavit [395-5795]-[395-5865]: 29 September 2010 (13) Duty To Account [395-5920]-[395-5940]: 29 September 2010 (14) Proceedings Relating to the Internal Administration of the Estate [395-5995]-[395-6035]: 29 September 2010 V Family Provision [395-6500]-[395-7210]: 16 May 2012. Subsequent developments may be located by referring to the Australian Current Law Reporter and Legislation: for further details consult the how to use in Volume 1 of Halsburys Laws of Australia.

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[Halsbury's Laws of Australia]

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I TESTATE SUCCESSION (1) TESTAMENTARY INSTRUMENTS (A) Wills The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-1] General A will is an instrument stating the intention of its creator, the testator 1 in relation to matters, such as the disposition of the testators property,2 to take effect after the testators death.3 A will is valid if the testator possessed the requisite testamentary capacity 4 and intention5 and if it meets certain formal requirements.6 A will which disposes of property is admissible to a grant of probate by the relevant court.7 A will that does not dispose of property is not usually admissible to probate because the jurisdiction of any probate court is usually activated only by the presence of property within the relevant jurisdiction.8A will which only appoints a testamentary guardian9 or only appoints an executor,10 or which revokes other wills is not usually admissible to a grant of probate.11 A will usually appoints a person or persons to act as executor to carry out the testators wishes as set out in the will.12 A will is ambulatory during the testators lifetime and revocable at any time. 13 It takes effect upon the death of the testator.14 A will is not required to be in any particular form. A document which on its face appears to be an inter vivos instrument15 may be testamentary if it does not take effect until death, 16 in which case it will be subject to the formal requirements of a will.17 Notes 1 That is, the maker of a testamentary disposition.2 A testamentary instrument need not provide solely for the disposition of property; it may appoint an executor, a trustee or a guardian, or it might revoke a previous will. As to the roles of executors, trustees and guardians see III grants [395-2400]-[395-3475]. See further K Mason and L G Handler, Wills Probate and Administration Service New South Wales, Butterworths, Sydney, 1985 to current (looseleaf), Vol 1, [10,085], [10,101]; The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [2255]-[2325], Prr 20.110-20.141 and note 8 below. As to revocation see [395-595][395-645].3 For the statutory definitions of wills see: (ACT) Wills Act 1968 Dictionary (will includes a codicil) (NT) Wills Act 2000 s 3 (includes a codicil and any other testamentary disposition) (NSW) Wills, Probate and Administration Act 1898 s 3; (NSW) Succession Act 2006 (opn on proc) s 3 (definition of will to become includes a codicil and any other testamentary disposition) (QLD) Succession Act 1981 s 5 (includes a codicil and any other testamentary disposition) (SA) Wills Act 1936 s 3 (TAS) Wills Act 1992 s 3

(WA) Wills Act 1970 s 4. If the Wills Amendment Bill 2006 cl 4 is enacted then (WA) Wills Act 1970 s 4 will have the same effect but will include disposition to the definition of will so that a will includes a codicil and any testamentary instrument or disposition. The term will is not defined in the (VIC) Wills Act 1997 s 3. As to codicils see [395-760]. See also The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [3235], Prr 20.890-20.900. 4 As to testamentary capacity see [395-175]-[395-225].5 As to testamentary intention see [395195].6 As to the formal requirements for a valid will see [395-280]-[395-385].7 As to the admission of wills to probate see [395-2400]-[395-2695]. As to grants of probate and letters of administration in respect of foreign wills see conflict of laws [85-1645], [85-1650].8 But see (QLD) Succession Act 1981 s 6(2) discretion to issue grants of representation notwithstanding no estate left in Queensland or elsewhere.9 As to the appointment of guardians see K Mason and L G Handler, Wills Probate and Administration Service New South Wales, Butterworths, Sydney, 1985 to current (looseleaf), Vol 1, [10,101]; The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [3070]-[3155], Prr 20.830-20.845. As to powers of appointment in the context of foreign wills see conflict of laws [85-1780]-[85-1800].10 Re Estate of Smith [2004] NTSC 15; BC200401578 . For wills containing no dispositions but merely appointing an executor yet admissible to probate see Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J ; Brownrigg v Pike (1882) 7 PD 61 ; In the Goods of Jordan (1868) LR 1 P & D 555. See also Magarry v Kiely (unreported, SC(QLD), Thomas J, 3 July 1990, BC9003245) granting probate to that portion of a will which appointed an executor to revoke the appointment of an executor in an earlier will.11 Goods of Fraser (1869) LR 2 P & D 40; 21 LT 680 . As to revocation of wills see [395-595]-[395-645].12 As to executors generally see [395-2400]-[3953475].13 However, a testator may bind herself or himself contractually not to revoke a will: see [395-120]. See also [395-595]-[395-645]. However, testators cannot enter into binding contracts to circumvent the provisions of testamentary family provision legislation: see Barnes v Barnes (2003) 214 CLR 169; 196 ALR 65; [2003] HCA 9; BC200300694 , Hamersley v Newton (2005) 30 WAR 568; [2005] WASC 221; BC200507603 at [8] per Heenan J .14 As to time of death see [395-1155].15 See [395-10].16 See, for example, In the Goods of Morgan (1866) LR 1 P & D 214.17 See [395-280]-[395-385]. The paragraph below is current to 20 September 2007 [395-5] Joint wills A joint will is the embodiment of the wills of two or more persons in a single document.1 Provided each person executes the will properly2 the one document operates as the separate will of each testator.3 Each testator may revoke his or her will without the consent of the other persons whose wills are contained in the joint document,4 unless they have contracted not to revoke their wills.5 Upon the death of each testator, probate is granted in relation to so much of the joint document as is relevant to the deceased testator.6 However, given the practicalities of grants of representation, be they for probate or letters of administration with the will attached, especially the requirement of the relevant probate court to retain original documents,7 it is preferable to draft separate rather than joint wills. In addition, computer software programmes facilitate the creation of testamentary documents. To be taken into account also, given contemporary legislative arrangements for domestic relationships, are complications to the joint will flowing from the ending of any those relationships. Consideration should also be given to whether jurisdictions other than Australia recognise joint wills.8 Notes 1 In the Goods of Lovegrove (decd) (1862) 2 Sw & Tr 453; 164 ER 1072. A joint will is sometimes used to execute a joint power of appointment: Re Duddell (decd); Roundway v

Roundway [1932] 1 Ch 585; [1932] All ER Rep 714; (1932) 146 LT 565 ; Hudson v Gray (1927) 39 CLR 473; 1 ALJR 126 . A joint will may dispose of the parties separately owned property or their jointly owned property: Re Hagger; Freeman v Arscott [1930] 2 Ch 190; (1930) 143 LT 610 ; Re Kerr [1948] 3 DLR 668 (approved Re Kerr [1949] 1 DLR 736); Re Duddell (decd); Roundway v Roundway [1932] 1 Ch 585; [1932] All ER Rep 714; (1932) 146 LT 565 . Where property is jointly owned, the instrument governs the distribution of the parties interests in the property: Szabo v Boros (1967) 60 DLR (2d) 186; Benjamins v Chartered Trust Co (1965) 49 DLR (2d) 1.2 As to execution see [395-310]-[395-340].3 Re Duddell (decd); Roundway v Roundway [1932] 1 Ch 585 at 592; [1932] All ER Rep 714; (1932) 146 LT 565 per Farwell J.4 In the Goods of Fletcher (1883) 11 LR Ir 359.5 See [395-120] (mutual wills). Note that the creation of joint wills does not lead to a conclusion that there exists an agreement to make mutual wills: see Osborne v Osborne [2001] VSCA 228; BC200107833 .6 Re Duddell (decd); Roundway v Roundway [1932] 1 Ch 585 at 592; [1932] All ER Rep 714; (1932) 146 LT 565 per Farwell J; Will of Rowston [1917] QWN 39 . See also Re Neal (decd) (1914) 33 NZLR 1421 ; Re MLaren (1874) 5 AJR 162.7 Re MLaren (1874) 5 AJR 81. See Haines D M, Succession Law in South Australia, LexisNexis Butterworths, Sydney, 2003, Ch 4.8 See Hudson v Gray (1927) 39 CLR 473 at 500; 1 ALJR 126 per Higgins J stating that the English law does not recognise joint wills. For recent use of joint wills see Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227; BC200304834 ; Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934 ; Prince v Argue [2002] NSWSC 1217; BC200208083 ; Baird v Smee [2000] NSWCA 253; BC200005399 .

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[Halsbury's Laws of Australia]

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(B) Non-testamentary Transactions The paragraph below is current to 20 September 2007 [395-10] Gifts inter vivos A gift inter vivos is a transaction taking effect during the lifetime of the giver or donor. It is distinguishable from a testamentary disposition in that a will only takes effect on death.1 Gifts inter vivos are not subject to the same formal requirements as a will.2 Death may be a relevant event in inter vivos transactions but such transactions will not be regarded as wills unless the transaction involves a transfer of the testators property which only takes effect on death.3 For example, it may occur that the prospective testator intends to make a gift inter vivos but does not complete that gift before death even though the intention to do so

remains at death.4 In those circumstances, and if the donee of the gift is appointed executor to the will, then equity will assist the donee (known as the rule in Strong v Bird).5 Notes 1 Cock v Cooke (1866) LR 1 P & D 241 at 243; 15 LT 296; 15 WR 89 per Sir J P Wilde. For illustration see Nolan v Nolan [2004] VSCA 109; BC200403476 ; Re DDM File No 02/0352; Ex Parte The Full Board of the Guardianship and Administration Board (2003) 27 WAR 475; [2003] WASCA 268; BC200306823 per Anderson J .2 For the formal requirements of a will see [395-280]-[395-385]. For inter vivos gifts see Papathanasopoulos v Vacopoulos [2007] NSWSC 502; BC200703723 ; Haines D M, Succession Law in South Australia, LexisNexis Butterworths, Sydney, 2003, [3.16].3 Russell v Scott (1936) 55 CLR 440 at 454; [1936] ALR 375; (1936) 10 ALJ 211 per Dixon and Evatt JJ. As to donationes mortis causa see [395-30]-[395-45].4 See Blackett v Darcy (2005) 62 NSWLR 392; 189 FLR 1; [2005] NSWSC 65; BC200500367 . See also Nolan v Nolan (2003) 10 VR 626; [2003] VSC 121; BC200301947 ; Bassett v Bassett (2003) 58 NSWLR 258; [2003] NSWSC 691; BC200304386 ; Gray v Guardian Trust Australia [2002] NSWSC 1218; BC200208063 ; Dawson v Howard [1999] NSWSC 729; BC9904034 .5 Strong v Bird (1874) LR 18 Eq 315; [1874-80] All ER Rep 230. Compare Blackett v Darcy (2005) 62 NSWLR 392; 189 FLR 1; [2005] NSWSC 65 BC200500367 at [32]-[38] per Young CJ in Eq . The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-15] Jointly owned property Where a person transfers property to another person so that they become joint tenants, the creation of the joint tenancy is not testamentary in nature.1 Although under the right of survivorship, one joint tenant becomes entitled to the whole of the property upon the death of the other joint tenant, the survivor is not treated as succeeding to the property.2 The survivor acquires his or her interest in the property at the time of the creation of the joint tenancy; the death of one joint tenant means merely that the property is released from the control of one of the owners.3 These common law rights regarding real property may also be affected by statutes, in that the rules of survivorship may be overridden or modified. To illustrate, joint tenants may be entitled to register on the title the words no survivorship4 and proceedings may survive against or for the benefit of an estate of a joint owner despite the rules of survivorship.5 In New South Wales the (NSW) Conveyancing Act 1919 provides that disposition of the beneficial interest in any property whether with or without the legal estate to or for two or more persons together beneficially shall be deemed to be made to or for them as tenants in common, and not as joint tenants.6 This provision does not apply to persons who by the terms or by the tenor of the instrument are executors, administrators, trustees, or mortgagees, nor in any case where the instrument expressly provides that persons are to take as joint tenants or tenant by entireties.7 The effect of this provision is that in New South Wales, if a trust is created by an instrument the beneficial interest will be deemed to be held by the beneficiaries as tenants in common.8 As to wills, where a survivor takes the testators interest in a home unit company, a person takes as a joint tenant only when the instrument expressly provides that they are to take as joint tenants, otherwise it will be a tenancy in common.9 It has been held that on the true construction of s[ection] 26 [of the (NSW) Conveyancing Act 1919] if it plainly or clearly appears, not by implication or inference as to the intention but from the plain or clear language of the instrument, that persons are intended to take as joint tenants, they will take as joint tenants

although the words used are not as joint tenants but other words more appropriate to the particular class of property which is the subject matter of the disposition. But the words [j]oint legatees were not enough.10 Again in New South Wales, statutory provisions affecting transfers under survivorship rules are found in the (NSW) Family Provision Act 1982.11 Property so transferred may be deemed a prescribed transaction12 for the purpose of determining the deceaseds notional estate subject to a testamentary family claim.13 The transfer must have occurred within three years before death in order to prevent provision from the deceased estate for an eligible person,14 or within one year of death when the deceased had a moral obligation to provide for a person and that obligation was greater than the obligation to enter the prescribed transaction.15 As a matter of contract a joint banking account enables the account holders to operate the account during their joint lifetimes,16 the survivor being entitled to any balance of the account. As the account holders each hold a chose in action at common law, each may assign his or her rights against the bank to himself or herself and another jointly,17 resulting in an assignment of a chose in action.18 The common law rights regarding joint bank accounts may be affected by equity, in that the survivor may be regarded as a trustee of his or her rights for the estate of the deceased joint account holder.19 Where the funds in the account were deposited solely by one of the account holders, a resulting trust may arise in favour of the contributor.20 Where the funds were contributed by two or more of the account holders, a resulting trust may arise in favour of each in accordance with the proportion the contribution bears to the whole account.21 Such a trust may be rebutted by evidence of intention22 or where the circumstances give rise to a presumption of advancement. 23 However, if the joint account was set up merely for the convenience of the parties with no intention that the balance should be subject to survivorship, the presumption of the resulting trust is rebutted and the proportion of funds contributed by each form part of each contributors estate.24 Notes 1 Earl of Zetland v Lord Advocate (1878) LR 3 App Cas 505 at 516; 38 LT 297 per Lord Hatherley.2 This is because the joint tenants together own the whole of the property and no part of it is owned separately by one joint tenant, so that there cannot be said to be any succession by one to the property of another: see generally real property [355-11500]-[355-11710].3 Earl of Zetland v Lord Advocate (1878) LR 3 App Cas 505 at 521; 38 LT 297 per Lord Selborne. For a recent commentary on the role of equity in relation to joint ownership of property see Aitken L, Re-calibrating interests: Co-ownership in equity (2007) 81 Australian Law Journal 266.4 (ACT) Land Titles Act 1925 s 180; (NSW) Real Property Act 1900 s 84; (SA) Real Property Act 1886 ss 163, 164; (TAS) Public Trustee Act 1930 s 34(5); (VIC) Transfer of Land Act 1958 s 38, (VIC) State Aid To Religion Abolition Act 1871 s 8; (WA) Transfer of Land Act 1893 s 61, (WA) Property Law Act 1969 s 67(4).5 (NSW) Conveyancing Act 1919 s 66G(1A).6 Ibid s 26(1).7 Ibid s 26(2)8 Delehunt v Carmody (1986) 161 CLR 464; 68 ALR 253; 61 ALJR 54; BC8601383 per Gibbs CJ . See also Registrar-General (NSW) v Wood (1926) 39 CLR 4; BC2600020. 9 Rule v Mallon (2000) 10 BPR 18,005; [2000] NSWSC 346; BC200002685 .10 Mole v Ross (1950) 1 BPR 9101 at 9102 per Sugerman J . See also Mitchell v Arblaster [1964-1965] NSWR 119 at 120 per Hardie J.11 (NSW) Family Provision Act 1982 s 22(1). See Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896 ; Sang v Choy [2004] NSWSC 1121 ; Pont v Morris [2003] NSWSC 982 ; Button v Lynch [2002] NSWSC 1148 .12 (NSW) Family Provision Act 1982 s 22(4)(b). See also New South Wales Law Reform Commission Report 110 (2005) Uniform Succession Laws: Family Provision Part 3 Notional Estate Orders New South Wales Law Reform Commission Sydney.13 (NSW) Family Provision Act 1982 Div 2.14 Ibid s 23(b)(i).15 Ibid s 23(b)(ii). See, for example, James v James [2006] NSWSC 1151 per Macready AJ ; Cetojevic v Cetojevic [2006] NSWSC 431 per Campbell J ; Moller v Allen [2006] NSWSC 39 per McLaughlin AJ .16 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; (1936) 10 ALJ

211 .17 See banking and finance [45-895].18 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; (1936) 10 ALJ 211 ; Standing v Bowring (1885) 31 Ch D 282; [1881-85] All ER Rep 702 . As to choses in action generally see equity [185-430], [185-435].19 Russell v Scott (1936) 55 CLR 440 at 450; [1936] ALR 375; (1936) 10 ALJ 211 per Dixon and Evatt JJ; Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 .20 Russell v Scott (1936) 55 CLR 440 at 450; [1936] ALR 375; (1936) 10 ALJ 211 per Dixon and Evatt JJ. As to resulting trusts generally see trusts. See also Logan v Gardiner [2006] NSWSC 1069; BC200608217 per Young CJ in Eq .21 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; (1936) 10 ALJ 211 .22 Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; (1936) 10 ALJ 211 ; Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 .23 As to the presumption of advancement see family law [205-1885], trusts.24 See Mathews v National Trust Co Ltd [1925] 4 DLR 774; Re Reid (1921) 64 DLR 598; 50 OLR 595 at 604 per Hodgins JA; Shortilli v Grannan (1920) 55 DLR 416; Van Wart v Synod of Fredericton (1912) 5 DLR 776. See also Larondeau v Larondeau [1954] 4 DLR 293; Re Aylward; Aylward v Aylward [1955] 5 DLR 753; Owens v Greene [1932] IR 225 . See generally on co-ownership Aitken L, Re-calibrating interests: Coownership in equity (2007) 81 Australian Law Journal 266. The paragraph below is current to 20 September 2007 [395-20] Covenant for disposition on death A deed entered into during a persons lifetime may involve payment on the death of the covenantor,1 and may be testamentary if it does not take effect until the death of the covenantor.2 To determine testamentary effect the relevant court may need to consider the intentions of the covenantor. If testamentary, then the covenant must satisfy the formalities required for a will before being granted probate.3 A covenant for post-mortem disposition which is regarded as a valid inter vivos covenant4 creates a liability on the estate of the declarant which takes priority over the claims of beneficiaries under the declarants will.5 A partnership deed may provide that on the death of a partner the surviving partners will take the beneficial interest of the deceased partner in the assets, capital and goodwill of the partnership. Such a covenant is non-testamentary.6 Notes 1 A covenant for post-mortem disposition is a deed entered into during the lifetime of the declarant which confers an enforceable benefit on a third person to be conferred by the declarants personal representative who, upon the death of the declarant, executes a transfer of property or pays money to the third person: see, for example, Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564 .2 A covenant may be a will if it does not take effect until the death of the declarant, in which case it must comply with the formalities required of a will: see, for example, Milnes v Foden (1890) 15 PD 105; 62 LT 498 ; Bird v Perpetual Executors and Trustees Assn of Australia Ltd (1946) 73 CLR 140; [1946] ALR 13 . As to the formal requirements of a will see [395-280]-[395-385]. A covenant which merely contains a promise that is not to be performed before the death of the declarant is contractual in nature and may be subject to the doctrine of anticipatory breach: see contract [110-9245]. If the covenant was intended to be testamentary, it will probably be treated as testamentary: see Re Carile (decd); Dakin v Trustees, Executors and Agency Co Ltd [1920] VLR 427; (1920) 26 ALR 260; 42 ALT 82 , SC(VIC), Full Court.3 Goods of Morgan (1866) LR 1 P & D 214.4 See, for example, Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564 .5 Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564 . As to the priority of claims see IV administration of estates.6 Re Bubnich; Marian v Bubnich [1965] WAR 138 , SC(WA), Full Court (partnership agreement gave rise to a liability on the part of the deceased partners estate which was enforceable at the suit of the surviving partner; the covenant was an existing one and not a testamentary disposition). See further partnerships and joint ventures [305-265], [305-520]. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-25] Nominations Under some life insurance and pension or superannuation schemes it is possible for the person joining the scheme to nominate another person to take a death benefit if the insured or contributor dies in defined circumstances.1 Such arrangements are not testamentary since the funds to be paid to the nominated beneficiary upon the death of the insured or the contributor are not property of the policy holder which passes to the nominated beneficiary.2 The insured and the insurer, the contributor and the trustees of the fund, have a contractual arrangement whereby the insurer or trustees will pay an agreed amount to the nominated beneficiary upon the death of the insured or the contributor.3 Although nomination of the recipient has certain testamentary characteristics, including being ambulatory in nature, it takes effect as a contractual arrangement and not as a disposition by the deceased of the deceaseds property on death.4 Any contractual rights of the member in relation to the scheme do not pass to the recipient upon the members death; rather, the recipient receives the benefit by way of the exercise by the administrators of the scheme of their contractual right to obtain a good discharge.5 The nominated beneficiary is not a party to the contract and therefore has no right to enforce it.6 The authority of the nominee to claim the benefit payable upon the insureds or contributors death is part of the contract between the insured or the contributor and the party obliged to pay.7 Under some schemes the insured or contributor may contract with the administrators of the scheme as a trustee for named beneficiaries, so that the beneficiaries themselves may enforce the obligation to pay upon the members death as beneficiaries of the trust.8 This arrangement is not testamentary because the beneficiaries acquire their right upon creation of the trust, during the trustees lifetime.9 The terms of the superannuation trust deed determine the scope of the discretion able to be exercised by the trustee(s) of the superannuation trust. Under some superannuation schemes the relevant trust deed may permit the superannuant to issue a binding nomination (rather than a mere nomination under which the trustee exercises its discretion in relation to whom receives the benefit).10 The binding nomination binds the trustee(s) to pay, upon the death of the superannuant, any due benefits in the proportions designated to the person or persons nominated by the superannuant. Such nominations must be in writing in accordance with the requirements of the (CTH) Superannuation Industry (Supervision) Regulations 1994.11 Those requirements are for the superannuant to:12 (1) designate either the personal representative or a dependant of the member as beneficiary(ies); (2) designate the amount of the benefit, which may be distributed in proportions between beneficiaries; (3) sign , date and have the binding nomination witnessed in the presence of two witnesses; (4) sign and date a declaration to the effect that the notice was signed by the member in the

presence of the two witnesses who also sign and date the binding nomination. Binding nominations are effective for a limited period, being the shorter of either a period of three years or that period of time specified by the trust-deed. The superannuant may confirm, amend or revoke the binding nomination by giving the relevant trustee written notice in accordance with the same written formalities as required by the original binding nomination.13 The Superannuation Complaints Tribunal has issued some useful information regarding discretionary payments of superannuation funds after death.14 The Superannuation Complaints Tribunal applies a test: Who would/should have continued to benefit from the deceaseds income if he/she had not died prematurely?15 Those persons considered in priority to benefits are minors or children, and adults undertaking further study. Other factors taken into account are the:16 (1) existence of interdependency relationships17 those being close, living together, one or each providing the other with financial, domestic or personal care and support; (2) presence of adult children suffering from physical or psychiatric disability; (3) length of marriage-like relationships; (4) contributions made by the deceased during the period or a substantial period of any relationships; (5) strength of relationship between the deceased and any potential beneficiaries; (6) making of a will by the deceased and the intentions expressed in that will, especially regarding distribution of superannuation benefits; and (7) for de facto relationships, the duration, the knowledge of relationship to others particularly family and friends, the existence of joint financial arrangements, the existence of children, and the existence of sexual relations. If there exists no beneficiaries, whether under non-binding or binding nominations, or the trustee cannot exercise a discretionary payment, then the trustee of the superannuation trust will usually pay the benefits to the estate. If the deceased estate is insolvent or subject to litigation then the direct benefit of the superannuation payment may be lost to the beneficiaries of the estate.18 The payment of superannuation to a deceased estate may also precipitate the need to seek the grant of probate or letters of administration, especially as there are statutory requirements to pay benefits to specific persons as follows:19 (1) the spouse or de facto partner of the deceased;

the spouse or de facto partner of the deceased; (2) the child of the deceased regardless of age and of status, whether natural, lawful, adopted, step-child or ex-nuptial; (3) a person who was in an interdependency relationship with the deceased whether samesex or related;20 (4) a person financially dependent upon the deceased and/or the estate of the deceased; (5) a personal representative of the deceased, whether executor or administrator; or (6) another person when the trustee, after reasonable investigation, has been unable to find a dependent person, as described above, or a personal representative.21 Superannuation trustees, when determining whether two persons have an interdependency relationship, are required by the (CTH) Superannuation Industry (Supervision) Act 1993 to take into account the following:22 (1) the duration of the relationship; (2) whether or not a sexual relationship exists; (3) the ownership, use and acquisition of property; (4) the degree of mutual commitment to a shared life; (5) the care and support of children; (6) the reputation and public aspects of the relationship; (7) the degree of emotional support; (8) the extent to which the relationship is one of mere convenience;

(9) any evidence suggesting that the parties intend the relationship to be permanent; or (10) the existence of a statutory declaration signed by one of the persons to the effect that the person is or was in an interdependency relationship with the other person. Trustees must distinguish between the support and care given by a friend or flatmate and that provided in a close personal relationship. The provision of domestic support and personal care under an employment contract, contract for services, or on behalf of another person or organization, does not amount to an interdependency relationship.23 Where the requirements of the statutory requirements cannot be met, two persons may have an interdependency relationship if they have a close personal relationship and the reason they cannot meet the statutory requirements is due to: (1) the fact that they are temporarily living apart; or (2) one person having a disability.24 Notes 1 (CTH) Insurance Contracts Act 1984 s 48A. As to life insurance policies generally see insurance [235-1055]-[235-1125]. As to superannuation schemes generally see superannuation [400-90].2 See, for example, Baird v Baird [1990] 2 All ER 300; [1990] 2 WLR 1412, PC; McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 ; Re Danish Bacon Co Ltd Staff Pension Fund; Christensen v Arnett [1971] 1 All ER 486; [1971] 1 WLR 248 .3 Williams v FCT (1950) 81 CLR 359; [1950] ALR 572; (1950) 24 ALJ 232 ; McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 ; Re Danish Bacon Co Ltd Staff Pension Fund; Christensen v Arnett [1971] 1 All ER 486; [1971] 1 WLR 248 ; Baird v Baird [1990] 2 All ER 300; [1990] 2 WLR 1412.4 Re Danish Bacon Co Ltd Staff Pension Fund; Christensen v Arnett [1971] 1 All ER 486; [1971] 1 WLR 248 (benefits payable under scheme paid from fund to nominee, not to deceased member and thence to the nominee through his or her will or nomination); McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 .5 Williams v FCT (1950) 81 CLR 359 at 379; [1950] ALR 572; (1950) 24 ALJ 232 per Williams J. See also McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 ; Re Danish Bacon Co Ltd Staff Pension Fund; Christensen v Arnett [1971] 1 All ER 486; [1971] 1 WLR 248 ; Baird v Baird [1990] 2 All ER 300; [1990] 2 WLR 1412, PC. A different approach is reflected in In the Goods of Baxter [1903] P 12 ; Griffiths v Eccles Provident Society Ltd [1912] AC 483; (1912) 106 LT 465 ; Re MacInnes; MacInnes v MacInnes [1935] 1 DLR 401 (where employer and employee contributed to savings fund, and employee designated beneficiary to receive balance owing to employee on his death; employee could withdraw contributions at any time and could assign benefit as he chose; designation testamentary in character and failed because it did not comply with formalities required of a will).6 Williams v FCT (1950) 81 CLR 359; [1950] ALR 572; (1950) 24 ALJ 232 .7 Williams v FCT (1950) 81 CLR 359 at 379; [1950] ALR 572; (1950) 24 ALJ 232 per Williams J (the mandatory party is the party obliged to pay). If the contract only permits the member to nominate a new beneficiary with the consent of the party obliged to pay, the party obliged is not merely a mandatory (that is, a person to whom a command is given) of the member: Re Schebsman (decd); Ex parte Official Receiver, Trustee v Cargo Superintendents (London) Ltd [1944] Ch 83 at 92; [1943] 2 All ER 768 per Lord Greene MR, CA.8 See, for example, Bowskill v Dawson (No 2) [1955] 1 QB 13; [1954] 2 All ER 649; [1954] 3 WLR 275 , CA. The High Court of

Australia may be prepared to infer such a trust more readily since Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574; 62 ALJR 508 .9 Nomination by the trustee of new beneficiaries is also non-testamentary because the new beneficiaries acquire their rights during the trustees lifetime: McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 (act of nomination analogous to exercise of power of appointment conferred in a settlement).10 (CTH) Superannuation Industry (Supervision) Act 1993 s 59(1A).11 Ibid s 59(1A). 12 (CTH) Superannuation Industry (Supervision) Regulations 1994 reg 6.17A(4).13 Ibid reg 6.17A(7).14 Superannuation Complaints Tribunal (2005) 40 SCT Quarterly Bulletin 1 April 200530 June 2005. The Superannuation Complaints Tribunal and the Association of Superannuation Funds of Australia will be publishing a best practice paper for the purpose of guiding the gathering of evidence relating to claims: Superannuation Complaints Tribunal (2005) 40 SCT Quarterly Bulletin 1 April 2005-30 June 2005, p 3. For more detailed information, see Superannuation Complaints Tribunal Legal Issues in Death Benefits Forum Discussion Paper January at http://www.sct.gov.au.15 Superannuation Complaints Tribunal (2005) 40 SCT Quarterly Bulletin 1 April 2005-30 June 2005, p 1.16 Superannuation Complaints Tribunal (2005) 40 SCT Quarterly Bulletin 1 April 2005-30 June 2005, p 2.17 (CTH) Superannuation Industry (Supervision) Act 1993 s 10A; (CTH) Superannuation Industry (Supervision) Regulations 1994 regs 6.22, 6.22B, 6.26.18 (CTH) Bankruptcy Act 1966 s 249(1)(b). See also ibid s 58(6) regarding afteracquired property.19 Superannuation Complaints Tribunal (2006) 45 SCT Quarterly Bulletin 1 July 2006, p 2.20 (CTH) Superannuation Industry (Supervision) Act 1993 s 10A.21 (CTH) Superannuation Industry (Supervision) Regulations 1994 reg 6.22(3).22 (CTH) Superannuation Industry (Supervision) Act 1993 s 10A; (CTH) Superannuation Industry (Supervision) Regulations 1994 reg 1.04AAAA.23 (CTH) Superannuation Industry (Supervision) Act 1993 s 10A; (CTH) Superannuation Industry (Supervision) Regulations 1994 reg 1.04AAAA.24 (CTH) Superannuation Industry (Supervision) Act 1993 s 10A.

Source

[Halsbury's Laws of Australia]

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(C) Donationes Mortis Causa The paragraph below is current to 20 September 2007 [395-30] General principles A gift made in contemplation of death is termed a donatio mortis causa. Although it becomes complete only upon the death of the donor, it is not regarded as a testamentary transaction and is not subject to the formal requirements of a valid will.1 There are three essential requirements for a valid donatio mortis causa:2

(1) the gift must be made in contemplation of the donors death;3 (2) the gift must not be intended to be absolute until the donors death;4 and (3) the donor must part with dominion over the subject matter of the gift.5 A donatio mortis causa can be made of personal property, including choses in action.6 Until recently it has been accepted generally that a donatio mortis causa cannot be made with respect to real property in Australia.7 However, it has been held that the requirements for donatio mortis causa applied to real property as well as to personal property.8 If the three elements are satisfied the subject matter of the gift does not form part of the deceased estate. Where formal aspects of transfer of title remain to be completed the donee of an effective donatio mortis causa has an equitable right to compel the legal personal representative of the donor to complete such transfer upon the donors death.9 However, if there are insufficient assets to cover the liabilities of the donors estate, the subject matter of the gift may be used in equity to discharge the liabilities in whole or in part.10 A donatio mortis causa may discharge a pre-existing debt owed by the donor to the donee.11 Notes 1 As to the formal requirements of a will see [395-280]-[395-385].2 Dufficy v Mollica [1968] 3 NSWR 751 at 758 per Holmes JA, CA(NSW); Public Trustee v Bussell (1993) 30 NSWLR 111 at 115; BC9303903 per Cohen J.3 See [395-35].4 See [395-40].5 See [395-45].6 Dufficy v Mollica [1968] 3 NSWR 751 (chattels); Harneiss v Public Trustee (1940) 40 SR (NSW) 414; 57 WN (NSW) 157 ; Public Trustee v Young (1940) 40 SR (NSW) 233 ; Watts v Public Trustee (1949) 50 SR (NSW) 130; 66 WN (NSW) 29 (bank savings accounts); Re Dillon; Duffin v Duffin (1890) 44 Ch D 76; [1886-90] All ER Rep 407 ; Wilkes v Allington [1931] 2 Ch 104; (1931) 144 LT 745; 47 TLR 307 (bills of exchange); Public Trustee v Bussell (1993) 30 NSWLR 111; BC9303903 (valid donatio mortis causa in respect of shares effected where envelope containing share scrip was handed to the donee); Dufficy v Mollica [1968] 3 NSWR 751 at 752 per Wallace ACJ, at 759 per Holmes JA, CA(NSW) (shares). As to what constitutes real property see real property [355-5]-[355-25]. For the meaning of personal property see personal property. As to choses in action see equity [185-430], [185-435].7 Bayliss v Public Trustee (1988) 12 NSWLR 540 ; Watts v Public Trustee (1949) 50 SR (NSW) 130; 66 WN (NSW) 29 . Compare Sen v Headley [1991] Ch 425; [1991] 2 All ER 636; [1991] 2 WLR 1308 (delivery of title deeds to unregistered land held to be a valid donatio mortis causa). A debt secured over land can be the subject of a donatio mortis causa (as a chose in action): Duffield v Elwes (1827) 1 Bli NS 497; 4 ER 959 (delivery of title deeds).8 Sen v Headley [1991] Ch 425; [1991] 2 All ER 636; [1991] 2 WLR 1308 . See Baker PV (1993) 109 Law Quarterly Review 19 and Public Trustee v Bussell (1993) 30 NSWLR 111 at 118; BC9303903 per Cohen J in Eq .9 Delgoffe v Fader [1939] Ch 922 at 927-8; [1939] 3 All ER 682 per Luxmoore LJ; Staniland v Willott (1852) 3 Mac & G 664 at 676; 42 ER 416 at 420 per Truro LC.10 Re Korvines Trust; Levashoff v Block [1921] 1 Ch 343 at 348; (1920) 124 LT 500 per Eve J; Smith v Casen (1718) 1 P Wms 406; 24 ER 447; Ward v Turner (1752) 2 Ves Sen 431 at 434; 28 ER 275 at 278 per Lord Hardwicke LC; Tate v Hilbert (1793) 2 Ves 111 at 120; 30 ER 548 at 552 per Lord Loughborough LC; Tate v Leithead (1854) Kay 658; 69 ER 279. As to the application of assets to discharge liabilities of the estate in an administration see IV administration of estates.11 Harneiss v Public Trustee (1940) 40 SR (NSW) 414; 57 WN (NSW) 157 .

The paragraph below is current to 20 September 2007 [395-35] In contemplation of death The language used by the donor and the surrounding circumstances of the gift are relevant in determining whether the gift was made in contemplation of the donors death and was conditional upon it.1 The intention need not be expressly stated.2 Contemplation of death involves something more than a mere recognition of the inevitability of death at some time; the donor must contemplate an impending, but not necessarily immediate, death.3 The mere fact that the donee is elderly is not sufficient.4 If the gift is made in contemplation of death, it may still be valid notwithstanding that the donor died of a cause different from that contemplated.5 Notes 1 Dufficy v Mollica [1968] 3 NSWR 751 at 758 per Holmes JA, CA(NSW); Public Trustee v Bussell (1993) 30 NSWLR 111 at 116; BC9303903 per Cohen J.2 Cartledge (decd) v Heales (1898) 24 VLR 576; 5 ALR 7 ; Dufficy v Mollica [1968] 3 NSWR 751 .3 Public Trustee v Bussell (1993) 30 NSWLR 111; BC9303903 ; Re Cravens Estate; Lloyds Bank v Cockburn (No 1) [1937] Ch 423 at 426; [1937] 3 All ER 33; (1937) 106 LJ Ch 308; 157 LT 283 per Farwell J; Duffield v Elwes (1827) 1 Bli NS 497; 4 ER 959 . Contemplation of ones death by suicide has been held to be sufficient: Mills v Shields (No 1) [1948] IR 367.4 Smallacombe v Elders Trustee & Executor Co Ltd [1963] WAR 3 .5 Wilkes v Allington [1931] 2 Ch 104; (1931) 144 LT 745; 47 TLR 307 . The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-40] Conditional on death The operation of a valid donatio mortis causa is conditional upon the death of the donor and only at that time does it become absolute.1 While the donor is alive, the donatio mortis causa confers no interest on the donee.2 It operates subject to a condition, express or implied, that its effect is to manifest itself only upon the survivorship of the donee.3 Where the donors intention is not expressly stated, the court looks to the language used by the donor as well as all the surrounding circumstances to ascertain the donors intention.4 The condition will normally be implied from the fact that the gift was made when the donor was ill and in expectation of death.5 If the court cannot infer from the surrounding circumstances that the gift was intended to be conditional upon death then it is a gift inter vivos6 and must comply with any formalities required to make the gift operative.7 If the gift is conditional upon death, the donor retains the power to revoke the gift.8 A clear intention to revoke must be illustrated.9 The intention to revoke may be express or implied and is to be ascertained from all the surrounding circumstances.10 In Queensland, revocation may also eventuate under statutory requirements that expressly render donatio mortis causa available to pay the debts of the deceased when all other classes of assets are insufficient for that purpose.11 Notes 1 If the donor intends that the gift should be complete before his or her death, it is not a donatio mortis causa and will not be effective unless the donor does everything the donor is required to do

under statute or common law to transfer the legal ownership: see Milroy v Lord (1862) 4 De GF & J 264; [1861-73] All ER Rep 783; (1862) 45 ER 1185 . See further [395-45].2 In this respect it is similar to a legacy: see [395-1080]-[395-1145].3 Harneiss v Public Trustee (1940) 40 SR (NSW) 414; 57 WN (NSW) 157 .4 Dufficy v Mollica [1968] 3 NSWR 751 , CA; Cartledge (decd) v Heales (1898) 24 VLR 576; 5 ALR 7 ; Re Lillingston (decd); Pembery v Pembery [1952] 2 All ER 184; [1952] 1 TLR 1622 .5 Re Lillingston (decd); Pembery v Pembery [1952] 2 All ER 184; [1952] 1 TLR 1622 ; Dufficy v Mollica [1968] 3 NSWR 751 .6 As to gifts inter vivos see [39510].7 Milroy v Lord (1862) 4 De GF & J 264; [1861-73] All ER Rep 783; (1862) 45 ER 1185 (for an inter vivos gift by the donor to take effect everything must be done, both at common law and in accordance with statute, to facilitate the completion of the gift). Compare Strong v Bird (1874) LR 18 Eq 315; [1874-80] All ER Rep 230.8 For example, by reasserting dominion over the subject matter of the gift: see [395-45].9 Harneiss v Public Trustee (1940) 40 SR (NSW) 414; 57 WN (NSW) 157 .10 Watts v Public Trustee (1949) 50 SR (NSW) 130; 66 WN (NSW) 29 .11 (QLD) Succession Act 1981 s 59(1) class 4. The paragraph below is current to 20 September 2007 [395-45] Parting with dominion In order for a donatio mortis causa to be valid, the donor must intend to part with dominion in the property the subject of the gift.1 Delivery by the donor to another for safekeeping,2 or a delivery which does not give the donee full and exclusive control over the property, is not sufficient.3 Once the requisite intention is established, the court will consider whether there has been a sufficient act of delivery.4 For the delivery to be effective there must be actual delivery to the donee or the donees agent5 and the delivery must be made by the donor or by the donee taking possession of the gift at the instigation of the donor.6 If the person to whom the gift is made already has possession of the gift, there must be a visible act to demonstrate delivery.7 Delivery may occur either before or after the donors expression of intention to make the gift.8 Where actual physical delivery is not possible,9 a valid donatio mortis causa may be effected by the delivery of the indicia of title10 or the means of access to the property the subject of the gift. 11 Notes 1 Public Trustee v Bussell (1993) 30 NSWLR 111 at 115; BC9303903 per Cohen J; Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 ; In the Estate of Wood (1904) 21 WN (NSW) 254. As to property capable of disposition by donatio mortis causa see [395-30].2 See, for example, Re Johnson; Sandy v Reilly [1904-7] All ER Rep 539; (1905) 92 LT 357, CA; Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 ; Dufficy v Mollica [1968] 3 NSWR 751 , CA(NSW).3 Re Cravens Estate; Lloyds Bank v Cockburn (No 1) [1937] Ch 423 at 428; [1937] 3 All ER 33; (1937) 106 LJ Ch 308; 157 LT 283 per Farwell J. See also Sen v Headley [1991] Ch 425; [1991] 2 All ER 636; [1991] 2 WLR 1308 , CA.4 Public Trustee v Bussell (1993) 30 NSWLR 111 at 115; BC9303903 per Cohen J. As to intention see [395-40].5 Dufficy v Mollica [1968] 3 NSWR 751 , CA(NSW); Mathie v McDonald (1916) 16 SR (NSW) 446; 33 WN (NSW) 131 .6 See, for example, Re Weston; Bartholomew v Menzies [1902] 1 Ch 680; [1900-3] All ER Rep 283; (1902) 86 LT 551 .7 National Trustees, Executors & Agency Co Ltd v OHea (1904) 29 VLR 814 at 825; 10 ALR 81 per ABeckett J.8 Re Weston; Bartholomew v Menzies [1902] 1 Ch 680 at 684; [1900-3] All ER Rep 283; (1902) 86 LT 551 per Byrne J; Cain v Moon [1896] 2 QB 283; [1895-99] All ER Rep Ext 1952 .9 For example, where the property the subject matter of the gift is a chose in action (see Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 ; Dufficy v Mollica [1968] 3 NSWR 751 , CA(NSW)) or real property. As to whether real property can be the subject of a donatio mortis causa see [395-30].10 The documents evidencing indicia to title need not, it appears, contain a record of the essential terms of the transaction: Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 ; Dufficy v Mollica [1968] 3 NSWR 751 , CA(NSW).11 Public Trustee v Bussell (1993) 30 NSWLR 111 at 116; BC9303903

per Cohen J (valid donatio mortis causa in respect of shares effected where envelope containing share scrip was handed to the donee); Re Beaumont; Beaumont v Ewbank [1902] 1 Ch 889; [1900-3] All ER Rep 273; (1902) 86 LT 410 ; Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 (test of whether there has been a transfer is whether instrument handed over is the essential indicia of title, possession of which entitles possessor to the money purported to be given); Public Trustee v Young (1940) 40 SR (NSW) 233 (delivery of bank account passbooks sufficient for donatio mortis causa of balance in bank account); Re Wasserberg; Union of London and Smiths Bank Ltd v Wasserberg [1915] 1 Ch 195; [1914-15] All ER Rep 217 (valid donatio mortis causa effected where the key to a bank deposit box was given with the intention that the donee should have its contents, even though no written authority was given). Although the delivery of a savings bank passbook is sufficient delivery of the balance in the account for the purposes of donatio mortis causa (see Birch v Treasury Solicitor [1951] Ch 298; [1950] 2 All ER 1198 ), the deposit book for a cheque or current account is merely a symbol of ownership and transfer of possession of it does not constitute delivery: see Delgoffe v Fader [1939] Ch 922; [1939] 3 All ER 682 . Similarly, a cheque drawn by the donor in favour of the donee is merely an order by the donor to his or her bank to pay the amount indicated on the cheque to the donor or drawee of the cheque: see Re Beaumont; Beaumont v Ewbank [1902] 1 Ch 889; [1900-3] All ER Rep 273; (1902) 86 LT 410 .

Source

[Halsbury's Laws of Australia]

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(2) CONTRACTS RELATING TO WILLS The paragraph below is current to 20 September 2007 [395-100] General A person may enter into an agreement to make a will, to include specific provisions in a will,1 or to leave specific property or residue by will to the promisee.2 He or she may also enter into an agreement not to revoke a will.3 The validity of such agreements is determined under ordinary contractual principles.4 However, because a will is always revocable as a matter of probate law,5 the agreement will not disturb the grant of probate 6 or of letters of administration upon an intestacy,7 for the property the subject of the agreement will remain part of the estate of the promisor.8 Breaches of agreements with respect to wills are matters to be dealt with at law or in equity.9 Whether a testamentary contract is enforceable depends on the facts of the case.10 The terms of

the contract must be certain11 and, unless the contract is under seal,12 there must be valuable consideration.13 If these requirements are met, the agreement may be valid and enforceable notwithstanding the grant of probate in respect of a will which breaches the agreement, or a grant of letters of administration where no valid will was executed.14 If the testamentary contract is not enforceable,15 a quasi-contractual claim16 or a constructive trust may arise if the promisee has acted upon the promise.17 The rights of a promisee under a testamentary instrument do not arise under the will, but rather by virtue of the contract between the parties; that is, the rights exist independently of the will.18 The promisees rights depend on the nature of the particular promise.19 Notes 1 See [395-105]. For a standard form contract to make a will or to dispose of particular assets by will see The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills Prr 20.905-20.906.2 See [395-105].3 See [395-120].4 Remedies include damages and specific performance: see generally contract. As to the enforceability of testamentary contracts relating to land see [395-105].5 As to revocation of wills generally see [395-595]-[395645].6 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 . As to the grant of probate see [395-2400]-[395-2695].7 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 . As to letters of administration see [395-3000]-[395-3475].8 Barns v Barns (2003) 214 CLR 169; 196 ALR 65; [2003] HCA 9; BC200300694 .9 See Synge v Synge [1894] 1 QB 466; [1891-94] All ER Rep 1164 ; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 ; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 , CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ). See also Re Estate of Bristow: Dalton v Ellis [2005] NSWSC 1252; BC200510762 at [27] per Young CJ in Eq for a general discussion of testamentary contracts; Bonaventura v Bonaventura [2005] QSC 270; BC200507369 .10 Schaefer v Schuhmann [1972] AC 572; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC.11 Horton v Jones (1935) 53 CLR 475; 35 SR (NSW) 397; [1935] ALR 177 ; Maddison v Alderson (1883) LR 8 App Cas 467; [1881-85] All ER Rep 742; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 (within the terms of the Statute of Frauds, a contract to make a will in relation to land is a contract for the sale or disposition of land, but a contract not to revoke a will does not fall within its ambit); Staib v Powell [1979] Qd R 151 ; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 , CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Schaefer v Schuhmann [1972] AC 572 at 585; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC. As to certainty of contractual terms generally see contract [110-475]-[110-507].12 As to contracts under seal see deeds and other instruments [140-1]-[140-425].13 Synge v Synge [1894] 1 QB 466; [1891-94] All ER Rep 1164 (marriage held to be good consideration in equity for an ante nuptial promise to leave certain land by will); Horton v Jones (1935) 53 CLR 475; 35 SR (NSW) 397; [1935] ALR 177 ; Maddison v Alderson (1883) LR 8 App Cas 467; [1881-85] All ER Rep 742; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 . As to consideration generally see contract [110-545]-[110-805].14 Wakeham v Mackenzie [1968] 1 WLR 1175 ; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 .15 For example, if the contract is found to be void for uncertainty: see Stinchcombe v Thomas [1957] VR 509; [1957] ALR 1027 (recovery under quantum meruit).16 Under which the promisee may recover on a quantum meruit for any work performed for the promisor: see Deglman v Guaranty Trust Co of Canada [1954] 3 DLR 785 at 794 per Cartwright J (quasi-contractual claim), at 788 per Rand J, SC(Canada) (quantum meruit). As to quasi-contractual claims generally see restitution.17 Ogilvie v Ryan [1976] 2 NSWLR 504 . As to constructive trusts see trusts.18 Schaefer v Schuhmann [1972] AC 572; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC (following Re Richardsons Estate (1934) 29 Tas LR 149 overruling Dillon v Public Trustee of New Zealand [1941] AC 294; [1941] 2 All ER 284; (1941) 165 LT 357 (promisee viewed as a beneficiary)).19 See [395-105]-[395-120].

The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-105] Contract to leave specific property If there is a testamentary promise to leave specific property to the promisee, and the promisor sells the property during his or her lifetime, the promisee may treat the contract as repudiated and seek damages for anticipatory breach of contract.1 Damages are measured according to the value of the assets promised less the amount of the acceleration of the benefit.2 If the contract is personal to the promisee, the possibility of the promisee failing to survive the promisor may be taken into account.3 If a testamentary promise to make specific provisions in a will is not fulfilled upon the death of the promisor, the promisee is entitled to sue for damages, taking into account the value of the subject matter of the promise.4 Alternatively, the promisee may seek a decree of specific performance 5 and, if the decree of specific performance is maintained, will have an equitable interest in any assets claimed.6 The equitable interest may be asserted against volunteers who have taken the assets.7 Contracts for the sale or disposition of real property require a note or memorandum in writing of the contract, signed by the party to be charged or by some other person authorised by him or her.8 A similar requirement applies to testamentary contracts containing a promise to devise land to a specified person.9 A contract not to revoke a provision in the testators will relating to land, however, does not need to comply with the formalities required by the legislation.10 Where the requirement of writing is not met, the contract may be enforceable in equity through the equitable doctrine of part performance.11 Notes 1 Synge v Synge [1894] 1 QB 466; [1891-94] All ER Rep 1164 ; Schaefer v Schuhmann [1972] AC 572 at 586; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 248-9 per Hardie JA, CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Alcott v Alcott [2007] NSWSC 11; BC200700141 ; Bonaventura v Bonaventura [2005] QSC 270; BC200507369 . As to anticipatory breach of contract see further contract [110-9220]-[110-9275]. 2 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 254 per Hutley JA, CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Schaefer v Schuhmann [1972] AC 572 at 586; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC.3 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 254 per Hutley JA, CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Schaefer v Schuhmann [1972] AC 572 at 586; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC.4 Schaefer v Schuhmann [1972] AC 572 at 585-6; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC; Hammersley v Baron de Biel (1845) 12 Cl & Fin 45; 8 ER 1312 . See also Coverdale v Eastwood (1872) LR 15 Eq 121; 27 LT 646.5 As to specific performance see contract [110-11840]-[110-11895].6 Synge v Synge [1894] 1 QB 466; [1891-94] All ER Rep 1164 .7 Staib v Powell [1979] Qd R 151 ; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 248-9 per Hardie JA, CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Schaefer v Schuhmann [1972] AC 572 at 587; [197273] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC; Re Edwards

(decd); Macadam v Wright [1958] Ch 168; [1957] 2 All ER 495; [1957] 3 WLR 131 at 176 per Jenkins LJ, at 179, 181 per Romer LJ, CA; Reynolds v Marshall [1952] NZLR 384 ; Hoeppner v Kautz (1908) 8 SR (NSW) 186; 25 WN (NSW) 65 ; Synge v Synge [1894] 1 QB 466 at 470-1; [1891-94] All ER Rep 1164 per Kay LJ, CA. In New South Wales see Bogdanovic v Koteff (1988) 12 NSWLR 472 (registered proprietor of Torrens title land who takes land as volunteer, without notice, takes title free from prior equities).8 (ACT) Land Titles Act 1925 s 171 (NT) Law of Property Act 2000 s 10 (NSW) Conveyancing Act 1919 s 54A(1) (QLD) Property Law Act 1974 s 59 (SA) Law of Property Act 1936 s 26(1) (TAS) Conveyancing and Law of Property Act 1884 s 36(1) (VIC) Instruments Act 1958 s 126 (WA) Property Law Act 1969 s 34(1). As to the requirement that contracts relating to land be evidenced in writing see contract [1101005] and real property [355-4540]-[355-4550]. 9 Horton v Jones (1935) 53 CLR 475; 35 SR (NSW) 397; [1935] ALR 177 .10 Staib v Powell [1979] Qd R 151 ; Schaefer v Schuhmann [1972] AC 572 at 585; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 (a testamentary contract which does not relate to specific property but to the estate as a whole, even though that includes real property, is not a contract for the sale of land). As to the relevant legislation see note 8 above.11 As to the doctrine of part performance see contract [110-1065]. The paragraph below is current to 20 September 2007 [395-110] Contract to leave a legacy If a testator enters into a contract to leave a legacy to the promisee,1 he or she is free to dispose of his or her property during his or her lifetime irrespective of the contract.2 The contract, upon the death of the testator, creates a debt against the estate enforceable by the promisee against the executors.3 Notes 1 As to legacies see [395-1080]-[395-1145].2 Palmer v Bank of New South Wales (1975) 133 CLR 150 at 159; 7 ALR 671; 50 ALJR 320 per Barwick CJ.3 Graham v Wickham (1863) 1 De GJ & Sm 474; 46 ER 188 ; Hammersley v Baron de Biel (1845) 12 Cl & Fin 45; 8 ER 1312 . As to the payment of debts see IV administration of estates. The paragraph below is current to 20 September 2007 [395-115] Contract to leave residue Where there is a testamentary promise to leave the residue of an estate to the promisee, the promisee is only entitled to so much of the estate as remains after all the creditors have been satisfied.1 If the testator dies insolvent and after administration there is no residuary estate, the promisee takes nothing.2 The promisors ability to dispose of his or her property during his or her lifetime is restricted to a limited extent, in that he or she cannot fraudulently circumvent the agreement by making specific legacies or will-like gifts inter vivos, thereby reducing the residue promised to the promisee.3

A testamentary contract to leave the residue of an estate to a promisee cannot be defeated by a disposition which is substantially testamentary, even though technically it is made inter vivos.4 If the promisor does enter into a substantially testamentary transaction, he or she will be in breach of the testamentary promise and the promisee may seek a remedy for breach of the contract.5 Notes 1 Jervis v Wolferstan (1874) LR 18 Eq 18; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 ; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 , CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ).2 Schaefer v Schuhmann [1972] AC 572 at 586-7; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 per Lord Cross, PC; Jervis v Wolferstan (1874) LR 18 Eq 18 at 24; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 per Jessel MR.3 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 , CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ); Schaefer v Schuhmann [1972] AC 572 at 586 per Lord Cross, at 599 per Lord Simon; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC; Gregor v Kemp (1722) 3 Swan 482; 36 ER 926 . However, only an express provision in the testamentary agreement to the effect that the promisor will not deplete the assets of the estate will protect the promisee from other inter vivos dispositions: Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671 at 676; 50 ALJR 320 per Barwick CJ. As to gifts inter vivos see [39510].4 Logan v Wienholt (1833) 1 Cl & Fin 611; 6 ER 1046 ; Fortesque v Hennah (1812) 19 Ves 67 at 71; 34 ER 443 at 445 per Grant MR; Jones v Martin (1798) 5 Ves 276; 31 ER 582n ; Gregor v Kemp (1722) 3 Swan 482; 36 ER 926 ; Turner v Jennings (1708) 2 Vern 612; 23 ER 1000. A transaction is substantially testamentary if the promisor places his or her property in the name of another person but in reality retains the property for his or her own use during his or her lifetime: see Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671 at 676; 50 ALJR 320 per Barwick CJ.5 See [395-105]. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation [395-120] Mutual wills Two persons may agree to make wills in certain terms and may further agree that the wills are not to be revoked.1 Such wills are called mutual wills and may take the form of a joint mutual will2 or separate mutual wills.3 The agreement not to revoke each will is essential: two wills made at the same time with substantially similar provisions will not necessarily be mutual wills.4 The agreement may be oral, unless legislation requires it to be in writing.5 As a matter of probate law, a will remains revocable notwithstanding the agreement.6 If a will is revoked contrary to the agreement, the revocation may attract remedies in consequence of breach of contract.7 Where one testator dies without having revoked his or her will, the survivor is treated as constructive trustee of the property the subject of the agreement.8 Where the first testator dies and has altered his or her will, the survivor may alter her or his own will.9 Where a mutual will is revoked by marriage10 it may not amount to a breach of contract 11 but the estate of the first testator to die may nevertheless be bound by the constructive trust imposed according to the terms of the mutual will.12 The intention and expected effect of mutual wills had been, until recently, to exclude from a deceased estate property subject to contract, including property contained by mutual wills. Consequently, that property could not be included within the deceased estate challenged under testamentary family provision legislation, unless the contract protecting that property was not bona fide because it attempted to circumvent legislation and court jurisdiction. That is no longer the situation since the Australian High Court dealt with mutual wills in Barns v Barns.13

In Barns v Barns, the High Court held that, in the context of the definition of estate in the (SA) Inheritance (Family Provision) Act 1972,14 the property the subject of mutual wills was amenable to the testamentary family legislation. The decision in Barns v Barns does not alter the fact that remedies for breaches of agreements within mutual wills remain available in equity and contract.15 The decision affects primarily the scope of contracts within mutual wills, especially their impact upon testamentary family legislation.16 Notes 1 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 . In Aslan v Kopf (unreported, CA(NSW), Gleeson CJ, Kirby P and Priestley JA, No 40114/93, 9 May 1995, BC9504562) Gleeson CJ (with whom Kirby P and Priestley JA agreed) suggested that the contractual undertaking may extend to an unconditional prohibition against revocation at any time. See further The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [3245]-[3270], Prr 20.905-20.915, Atherton R F and P Vines, Succession: Family, Properties and Death, LexisNexis Butterworths, Sydney, 2003, pp 106-110.2 See, for example, Re Hagger; Freeman v Arscott [1930] 2 Ch 190; (1930) 143 LT 610 . As to joint wills see [395-5].3 See, for example, Re Green (decd); Lindner v Green [1951] Ch 148 at 155; [1950] 2 All ER 913 per Vaisey J, Ch; Nowell v Palmer (1993) 32 NSWLR 574 ; Low v Perpetual Trustees (WA) Ltd (1995) 14 WAR 35 . See also Prince v Argue [2002] NSWSC 1217; BC200208083 ; Carrick v Public Trustee [2002] NSWSC 1000; BC200206556 ; Kelso v Salvation Army [2001] NSWSC 191; BC200101164 ; Albrow v Cunningham [2000] NSWSC 103; BC200000663 ; Osborne v Osborne [2001] VSCA 228; BC200107833 ; Osborne v Osborne [2000] VSC 95; BC200001130 ; Baird v Smee [2000] NSWCA 253; BC200005399 ; Sykes v Equity Trustees Executors and Agency Co Ltd [1999] VSCA 199; BC9908087 . See also Cassidy J, Osborne v Estate of Osborne (2003) 27 Melbourne University Law Review 217.4 Gray v Perpetual Trustee Co Ltd (1928) 40 CLR 558; [1928] AC 391; [1928] ALR 238; [1928] All ER Rep 758 , PC; Re Cleaver (decd); Cleaver v Insley [1981] 2 All ER 1018; [1981] 1 WLR 939 , Ch; Nowell v Palmer (1993) 32 NSWLR 574 (admissibility of statements of surviving testator).5 For example, agreements involving a disposition of land, which are required to be evidenced in writing: see generally real property [355-2000]-[355-3525]. See also Horton v Jones (1935) 53 CLR 475; 35 SR (NSW) 397; [1935] ALR 177 ; Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 ; Schaefer v Schuhmann [1972] AC 572; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC.6 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 (it is a fundamental principle that wills are revocable). As to revocation of wills generally see [395-595]-[395-645].7 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 .8 Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 ; Dufour v Pereira (1769) 1 Dick 419; 21 ER 332 ; Re Cleaver (decd); Cleaver v Insley [1981] 2 All ER 1018; [1981] 1 WLR 939 , Ch. See also Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 254 per Hutley JA, CA(NSW) (affirmed Palmer v Bank of New South Wales (1975) 133 CLR 150; 7 ALR 671; 50 ALJR 320 ) (the principles laid down in Birmingham v Renfrew (1937) 57 CLR 666; [1937] VLR 327; [1937] ALR 520; (1937) 11 ALJ 188 , apply only in special circumstances). It has been suggested that the agreement gives rise to a floating trust: see, for example, Re Goodchild (decd); Goodchild v Goodchild [1996] 1 All ER 670 . As to constructive trusts see trusts. As to secret and half secret trusts see [395-445]-[395-465].9 Stone v Hoskins [1905] P 194 . Compare Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11.10 See [395-600]. The same principle may apply to revocation by divorce: see [395-610].11 Re Marsland [1939] Ch 820 ; Clausen v Denson [1958] NZLR 572 .12 Re Green (decd); Lindner v Green [1951] Ch 148 at 155; [1950] 2 All ER 913 per Vaisey J, Ch. 13 Barns v Barns (2003) 214 CLR 169; 196 ALR 65; [2003] HCA 9; BC200300694 .14 (SA) Inheritance (Family Provision) Act 1972 s 7.15 Alcott v Alcott [2007] NSWSC 11; BC200700141 at [9] per Adams J . For mutual wills decisions since Barns v Barns see Borgese v Papasidero [2006] NSWSC 407; BC200603105 ; Goyal v Chandra [2006] NSWSC 239; BC200602066 .16 See also Coomber v Stott [2007] NSWSC 513; BC200703899 . See generally Croucher R F, Contracts to Leave Property by Will and Family Provision after Barns v

Barns (2003) 196 ALR 65 (2005) 27 Sydney Law Review 263; Cassidy J, Osborne v Estate of Osborne (2003) 27 Melbourne University Law Review 217; Cassidy J, Mutual Wills, Federation Press, 2000. For a recent commentary on the tension between the doctrine of freedom of testamentary intention and testamentary family legislation (conferring a statutory entitlement to claim against a deceased estate) see Croucher R F, Conflicting narratives in succession law A review of recent cases (2007) 14 Australian Property Law Journal 179.

Source

[Halsbury's Laws of Australia]

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(3) TESTAMENTARY CAPACITY (A) General Principles The paragraph below is current to 20 September 2007 [395-175] Introduction It is an essential requirement of a valid will that the testator possess the requisite testamentary capacity.1 In determining capacity, often after the death of the testator when applications for grants are made, the court considers whether the testator: (1) was of full age;2 (2) possessed the necessary mental capacity;3 and (3) knew and approved of the contents of the will.4 The testator must, in addition, possess the necessary testamentary intention.5 Capacity and intention may be affected by suspicious circumstances surrounding the making of the will,6 undue influence7 or fraud.8 The paramount issue is whether the will is the product of a free and capable testator9 and was made with his or her knowledge and approval.10 A testator does not lack capacity merely because he or she executes a document suggesting eccentricity, capriciousness

or spite.11 Notes 1 Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47; Bailey v Bailey (1924) 34 CLR 558 at 571; 30 ALR 230; [1924] VLR 294; BC2400030 per Isaacs J. But see Kerr v Badran [2004] NSWSC 735 at [49]; BC200406537 per Windeyer J stating that the test in Banks v Goodfellow must take account of the differences between life in 1870 and life in 1995 (the date of the will in dispute). See also Pratt v OSullivan [2005] NSWSC 1046; BC200507812 ; Allen v Kroll-Simmul [2005] NSWSC 453; BC200503158 ; Re Estate of Maclauchlan; Peters v Dick [2007] NSWSC 414; BC200703146 ; Romano v Romano [2004] NSWCA 37; BC200400642 (affirmed Romano v Romano [2003] NSWSC 436; BC200302921 ); Dore v Billinghurst [2006] QSC 140; BC200604315 (affirmed Dore v Billinghurst [2006] QCA 494; BC200609632 ); Harrison v Petersen [2000] QSC 415; BC200007325 ; Re Ellul (decd); Ellul v Ellul [2005] VSC 351; BC200506494 ; Dowling v Clynes [2004] VSC 517; BC200408680 ; Re Nicholls (decd) Equity Trustees Ltd v Nicholls [2004] VSC 430; BC200408363 ; Di Cecco v Contini [2004] VSC 211; BC200403486 ; Trust Co of Australia Ltd v Daulizio [2003] VSC 358; BC200305588 ; Norris v Tuppen [1999] VSC 228; BC9903881 ; Clancy v Santoro [1998] VSC 196; BC9807388 ; Public Trustee v Ferguson [2006] WASC 180; BC200607303 ; Nicholas v Penn [2004] WASC 227; BC200407274 ; Guy v Guy [2004] WASC 69; BC200401787 ; Public Trustee v Kita [2004] WASC 38; BC200400987 ; Seale v Cross [2003] WASC 237; BC200307353 ; Public Trustee v Poulter [2003] WASC 233; BC200307282 ; Public Trustee v Head [2003] WASC 91; BC200308326 . See generally Collier B, Coyne C and Sullivan K, Mental Capacity, Federation Press, Sydney, 2005; Darzins P, Molloy D W and Strand D (eds), Who Can Decide: The six step capacity assessment process, Memory Australia Press, Adelaide, 2000. See further mental health and intellectual disability [285-35]. As to capacity in the context of foreign wills see conflict of laws [85-1725].2 See [395-180].3 See [395185], [395-190].4 See [395-200].5 See [395-195].6 See [395-205].7 See [395-210], [395-215].8 See [395-220], [395-225].9 Bagots Executor & Trustee Co Ltd v Bathern (1982) 15 NTR 3; 62 FLR 177 ; Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706; [1968] ALR 161; (1967) 41 ALJR 213; [1967] 3 All ER 915 sub nom Re Reschs Will Trusts [1969] 1 AC 514 , PC.10 Timbury v Coffee (1941) 66 CLR 277; 15 ALJ 159 .11 Pilkington v Gray [1899] AC 401 ; Frere v Peacocke (1846) 1 Rob Eccl 442; 163 ER 1095 ; Earl of Sefton v Hopwood (1855) 1 F & F 578; 175 ER 860. However, it may be that eccentricity in one person amounts to incapacity in another: Mudway v Croft (1843) 3 Curt 671; 163 ER 863.

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[Halsbury's Laws of Australia]

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(B) Age The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-180] Minimum age In all jurisdictions the minimum age for making a valid will is 18 years.1 In all jurisdictions except Western Australia, a minor who is, or has been, married may make a valid will2 and a will executed by a minor in contemplation of marriage is valid upon solemnisation of the marriage.3 In some jurisdictions the Supreme Court may make an order declaring a minor to be entitled to make a valid will.4 The minimum age requirement may be varied in the case of a privileged will.5 Notes 1 (ACT) Wills Act 1968 s 8 (NT) Wills Act 2000 s 7(1) (NSW) Wills, Probate and Administration Act 1898 ss 6, 6A, 6B; (NSW) Succession Act 2006 (opn on proc) s 5 (QLD) Succession Act 1981 s 9 (SA) Wills Act 1936 s 5 (TAS) Wills Act 1992 s 6 (VIC) Wills Act 1997 s 5 (WA) Wills Act 1970 s 7. If the Wills Amendment Bill 2006 cl 4 is enacted then (WA) Wills Act 1970 s 7 shall make wills made by persons under the age of 18 years invalid. 2 (ACT) Wills Act 1968 s 8(2) (NT) Wills Act 2000 s 7(2) (NSW) Wills, Probate and Administration Act 1898 s 6; (NSW) Succession Act 2006 (opn on proc) s 5(2)(b), 5(2)(c) (QLD) Succession Act 1981 s 9(2)(b), 9(2)(c) (SA) Wills Act 1936 s 5(2) (TAS) Wills Act 1992 s 6(2) (VIC) Wills Act 1997 s 6(b), 6(c). There are no equivalent provisions in Western Australia. For the definition of minor see:

(ACT) Age of Majority Act 1974 ss 5, 6(2)(a person who, on or after the commencing day, attains the age of 18 years attains full age and full capacity on attaining that age) (NT) Wills Act 2000 s 3 (a person who is less than 18 years of age) (NSW) Wills, Probate and Administration Act 1898 s 3; (NSW) Interpretation Act 1987 s 21 (defines minor as an individual who is under the age of 18 years, being the same definition as in the (NSW) Wills, Probate and Administration Act 1898 s 3) (QLD) Law Reform Act 1995 s 17 (the age of majority is 18 years) (SA) Wills Act 1936 s 3(1) (a person under the age of 18 years) (TAS) Wills Act 1992 s 3 (a person under the age of 18 years) (VIC) Wills Act 1997 s 3 (a person who is less than 18 years old) (WA) Age of Majority Act 1972 s 5 (a person who, on or after the commencing day, attains the age of 18 years attains full age and full capacity on attaining that age). 3 (ACT) Wills Act 1968 s 8(3) (NT) Wills Act 2000 s 7(2)(b) (NSW) Wills, Probate and Administration Act 1898 s 6B; (NSW) Succession Act 2006 (opn on proc) s 5(2)(a) (QLD) Succession Act 1981 s 9(2)(a) (SA) Wills Act 1936 s 5(3) (TAS) Wills Act 1992 s 6(3) (VIC) Wills Act 1997 s 6(a). There are no equivalent provisions in the other jurisdictions. The (WA) Wills Amendment Bill 2006 contains no provision for wills made by minors other than to render them invalid: ibid cl 6. Ibid cl 24 inserts (WA) Wills Act 1970 s 40 which confers power upon the Supreme Court to make wills for persons lacking testamentary capacity. However, this provision appears to be for the making of statutory wills not for minors but for those who are not sui juris, according to the Second Reading of the Bill in the Legislative Assembly by the Honourable Kim Chance, Leader of the House, on Wednesday 28 June 2006. For statutory wills of persons lacking capacity see Hockley J, Statutory Wills in Australia: Wills for Persons Lacking Capacity (2006) 80 Australian Law Journal 68. 4 (ACT) Wills Act 1968 ss 8A, 8B (Supreme Court enabling revocation of will by minor) (NT) Wills Act 2000 s 18. See also ibid s 18(1)(b) (Supreme Court may order revocation of will by minor). See Re Pitts [2005] NSWSC 887; BC200506551 . (NSW) Wills, Probate and Administration Act 1898 s 6A. See Application of M (2000) 50 NSWLR 401 re (NSW) Wills, Probate and Administration Act 1898 s 6A; (NSW) Succession Act 2006 (opn on proc) ss 5(3), 16 (QLD) Succession Act 1981 s 19. See also ibid s 19(1)(b) (Supreme Court may order revocation of will by minor. (SA) Wills Act 1936 s 6. See also ibid s 6(5) (Supreme Court may order revocation of will by minor).

(TAS) Wills Act 1992 ss 6(5), 8; see also ibid ss 6(4), 7 (Public Trustee may approve application by minor to make a valid will) (VIC) Wills Act 1997 ss 20(1), 20(8)(a) (Supreme Court may order revocation of will by minor). There are no equivalent provisions in the other jurisdictions. 5 Re Wernher [1918] 2 Ch 82; (1918) 118 LT 388; 34 TLR 391 ; Re Elliott (decd) [1917] VLR 322; (1917) 23 ALR 163 ; In the Will of Vernon (decd) [1915] VLR 699; (1915) 21 ALR 477 ; In the Will of Thompson (1910) 10 SR (NSW) 406; 27 WN (NSW) 113 . As to privileged wills see [395-520]-[395-540]. See (TAS) Wills Act 1992 s 50; (WA) Wills Act 1970 ss 17-19 permitting privileged wills to be made irrespective of age, all to be repealed when the (WA) Wills Act Amendment Bill 2006 cl 16 is enacted.

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[Halsbury's Laws of Australia]

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(C) Mental Elements (I) Mental Capacity The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-185] Sound mind, memory and understanding In order to make a valid will the testator must possess the necessary mental capacity; that is, he or she must be of sound mind, memory and understanding.1 Essentially, the testator must:2 (1) understand his or her acts, the nature of those acts, and the extent of his or her testamentary dispositions;

(2) comprehend the claims to which he or she ought to give effect; and (3) not be influenced by any insane delusion3 in the disposition of his or her property. The testator need not understand each provision in the will but must execute the will with sufficient knowledge and approval of its contents.4 Similarly, he or she must possess a general idea of the property the subject of the will, although it is not necessary for him or her to recall each specific item mentioned.5 Further, the testator need not immediately and fully comprehend the exact meaning of a testamentary instrument which has been couched in technical legal language,6 although he or she must understand that he or she is executing his or her own will.7 A testator must possess the necessary mental capacity at the time of execution of the will.8 However, where a testator gives instructions to a solicitor to draw up a will and at the time of execution lacks capacity, the relevant time for determining whether the testator was capable is the time at which the instructions were given.9 If the instructions were given to a lay intermediary to be relayed to a solicitor, they must have been unambiguous, clearly understood by the intermediary, faithfully reported to and correctly apprehended by the solicitor, so that the court may be satisfied that there is no ground for suspicion.10 The onset of senility, old age11 or infirmity does not necessarily negate mental capacity12 because dementia may manifest as an imperfect recollection but leave intact awareness and ability.13 Nor does the fact that the testator was an alcoholic,14 suicidal,15 suffering schizophrenia,16 or subject to a protection order.17 Assessment of the will-makers testamentary capacity is usually made by the drafter of the will, usually a legal practitioner, at the time of taking instructions18 and at the time of execution. 19 This does not generally require a medical evaluation for the test is a legal one since any determination is made by the relevant court.20 A medical examination may be required 21 when doubts arise for there exists a presumption of testamentary capacity.22 Expert medical evidence may be important but it is not determinative of the issue of competency.23 If a medical examination is required, the examining medical practitioner should be asked to make an evaluation that satisfies list items (1)-(3) above.24 The Mini-Mental-State Questionnaires, often used by medical practitioners, are not appropriate because they were not intended for diagnosis and are culturally biased.25 A better evaluation is the Six Step Capacity Assessment Process formulated by Darzins, Molloy and Strang.26 Most jurisdictions now provide the relevant courts with powers to make wills for person lacking capacity to do so.27 Such persons include those with (1) inability to communicate through disability or injury; (2) developmental disorders or disabilities;28 (3) mental illness or disorder including psychological conditions;

(4) incapacity caused by injury or disease;29 or (5) under guardianship orders.30 Notes 1 Banks v Goodfellow (1870) LR 5 QB 549 at 565; [1861-73] All ER Rep 47 per Cockburn J. For recent commentary on contemporary applicability of test in Banks v Goodfellow see Kerr v Badran [2004] NSWSC 735 at [49]; BC200406537 per Windeyer J ; Public Trustee v Bick [1973] 1 NZLR 301 at 303 per Turner P, CA(NZ); Re White (decd); Brown v Free [1951] NZLR 393 at 409 per OLeary CJ, CA(NZ); Timbury v Coffee (1941) 66 CLR 277 at 283; 15 ALJ 159 per Dixon J; Silvester v Tarabini (unreported, SC(WA), Anderson J, CIV 1141/95, 13 February 1996, BC9600204). In (SA) Wills Act 1936 s 7(12) testamentary capacity also includes incapacity arising from physical incapacity to communicate testamentary intentions. The test of mental capacity has been described as the condition where the testators mind is free to act in a natural, regular and ordinary manner: In the Will of Wilson (1897) 23 VLR 197 at 199; 3 ALR 181 per Hood J. See also mental health and intellectual disability [285-35]. For recent reports on sound mind memory and understanding see In the Estate of Raig [2006] ACTSC 96; BC200607715 ; Karwala v Skrzypczak [2006] NSWSC 203; BC200602034 ; Szabo v Battye [2006] NSWSC 1351; BC200610127 ; Becker v Public Trustee (NSW) [2006] NSWSC 1146; BC200608858 ; Donato v Mangravite [2005] NSWSC 488; BC200503636 ; Seeley v Back [2005] NSWSC 68; BC200500475 ; Smith v Sahner [2007] QSC 102; BC200703425 ; Dore v Billinghurst [2006] QCA 494; BC200609632 ; Scattini v Matters [2004] QSC 459; BC200409184 ; Challen v Pitt [2004] QSC 365; BC200407017 ; Conroy v Unsworth-Smith [2004] QSC 81; BC200401737; Kantor v Vosahlo [2004] VSCA 235; BC200408810 ; Dowling v Clynes [2004] VSC 517; BC200408680 ; Smurthwaite v Stratford [2007] WASC 68; BC200702057 ; Belcastro v Belcastro [2004] WASC 111; BC200402966 ; Worth v Clasohm (1952) 86 CLR 439; 26 ALJ 626; BC5200490 . 2 Banks v Goodfellow (1870) LR 5 QB 549 at 565; [1861-73] All ER Rep 47 per Cockburn CJ. See also OConnell v Shortland (1989) 51 SASR 337 ; Re Brokenshire (decd); Equity Trustees Executors and Agency Co Ltd v Worts (1998) 8 VR 659; [1998] VSC 183; BC9807204 . 3 Clemens v Byrnes [2007] NSWSC 421; BC200703307 ; Shine v Neville [1997] QSC 168; BC9704784 ; Dowling v Clynes [2004] VSC 517; BC200408680 ; Re Brokenshire (decd); Equity Trustees Executors and Agency Co Ltd v Worts (1998) 8 VR 659; [1998] VSC 183; BC9807204 at [7]-[8] per Smith J stating that the presence of a delusion is not enough in itself but that the delusion must influence dispositions made; Radalj v Di Francesco [2003] WASC 57; BC200301170 . As to insanity and insane delusion see [395-190]. For the definition of mental illness see mental health and intellectual disability [285-1].4 Nock v Austin (1918) 25 CLR 519; 25 ALR 88 ; In the Will of Wilson (1897) 23 VLR 197 at 199; 3 ALR 181 per Hood J. As to knowledge and approval see [395-200].5 McDonald v Watson (1871) 11 SCR (NSW) L 4 at 33 per Faucett J; Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 .6 Browne v McElhone (1883) 15 LR (NSW) B & P 154 at 159 per Martin CJ, SC(NSW), Full Court.7 In the Goods of Coles (1871) LR 2 P & D 362; 25 LT 852; 20 WR 214; Cock v Cooke (1866) LR 1 P & D 241; 15 LT 296; 15 WR 89.8 See Arthur v Bokenham (1708) 11 Mod Rep 148; 88 ER 957 ; Palmer v Dent (1850) 2 Rob Eccl 284; 163 ER 1319. As to execution see [395-310]-[395-340].9 Parker v Felgate (1883) 8 PD 171 at 173; 32 WR 186; Perera v Perera [1901] AC 354 ; Landers v Landers (1914) 19 CLR 222 ; Boreham v Prince Henry Hospital (1955) 29 ALJ 179.10 Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152 , PC. As to suspicious circumstances surrounding the preparation of a will see [395-205]. See further Bailey v Bailey (1924) 34 CLR

558 at 567 per Knox CJ and Starke J, at 572 per Isaacs J; 30 ALR 230; [1924] VLR 294; BC2400030 , HC of A, Full Court.11 Clemens v Byrnes [2007] NSWSC 421; BC200703307 ; Harrison v Carey [2006] VSC 104; BC200601513 ; Willmott v McCourt [2002] WASC 210; BC200205177 .12 Bailey v Bailey (1924) 34 CLR 558; 30 ALR 230; [1924] VLR 294; BC2400030 , HC of A, Full Court. See also McGrath v de Plater [2004] QSC 021; BC200400509 .13 Norris v Tuppen [1999] VSC 228; BC9903881 . See also Scattini v Matters [2004] QSC 459; BC200409184 ; Challen v Pitt [2004] QSC 365; BC200407017 ; Conroy v Unsworth-Smith [2004] QSC 81; BC200401737; McGrath v de Plater [2004] QSC 021; BC200400509 ; Whiteside v Smyth [2003] QSC 374; BC200306468 ; Re Pill [2001] QSC 447; BC200107534 .14 See Timbury v Coffee (1941) 66 CLR 277; 15 ALJ 159 (testator an habitual drunkard). See also Seeley v Back [2005] NSWSC 68; BC200500475 .15 Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47; Bull v Fulton (1942) 66 CLR 295 at 299; [1942] ALR 221; (1942) 16 ALJ 186 per Latham CJ; Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698 ; In the Estate of TLB (2005) 94 SASR 450; [2005] SASC 459; BC200510563 .16 Hyslop v Hyslop [2006] NSWSC 1237; BC200609511 ; Donato v Mangravite [2005] NSWSC 488; BC200503636 ; Flynn v Roccisano [2004] VSC 346; BC200405998 . For a useful review of the common law relating to persons under a disability generally, and those under protection particularly, see Owners of Strata Plan No 23007 v Cross (2006) 233 ALR 296 at [53][85] per Edmonds J .17 Perpetual Trustee Co Ltd v FairlieCunninghame; Estate of Service (1993) 32 NSWLR 377 . See also Re Irving [2003] VSC 351; BC200305332 ; Re DDM File No 02/0352; Ex Parte The Full Board of the Guardianship and Administration Board (2003) 27 WAR 475; [2003] WASCA 268; BC200306823 . As to protection orders see mental health and intellectual disability [285-550]-[285-580].18 In the Estate of Tucker (decd) [1962] SASR 99 at 102 per Mayo J requiring will to be prepared from seeing the client not solely from written instructions. See also Woodley-Page v Simmons (unreported, SC(NSW), Young J, 23 September 1987, BC8701133) at [17] per Young J regarding seeing client alone.19 Esterhuizen v Allied Dunbar Assurance PLC [1988] 2 FLR 668 at 676-677 per Longmore J, QB regarding duty to ensure proper attestation. See also Pates v Craig (unreported, SC(NSW), Santow J, 28 August 1995, BC9505250) at [147] per Santow J; Summerville v Walsh (unreported, CA(NSW), Mason P, Sheller and Beazley JJA, 28 February 1998, BC9800342); Dufaur v Croft (1840) 3 Moo PCC 136, 13 ER 59; Ponder v Burmeister [1909] SALR 62 at 89 per Way CJ regarding duty to prepare a will.20 Norris v Tuppen [1999] VSC 228; BC9903881 . See also In the Estate of Vauk (decd) (1986) 41 SASR 242 at 251 per Legoe J requiring the presence of another if capacity doubted.21 Ryan v Public Trustee [2000] 1 NZLR 700 at 717718 per Ellis J .22 Ryan v Public Trustee [2000] 1 NZLR 700 at 717-718 per Ellis J .23 Ryan v Public Trustee [2000] 1 NZLR 700 at 717-718 per Ellis J .24 Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47.25 Jee v Goodman [2001] QSC 474; BC200108007 at [94] per Holmes J .26 Darzins P, DW Molloy and D Strong, Who Can Decide? The six step capacity assessment process, Memory Australia Press, Adelaide, 2000.27 (NT) Wills Act 2000 ss 18-26 (NSW) Succession Act 2006 (opn on proc) ss 18-26 (QLD) Succession Act 1981 ss 21-28, 33Y (SA) Wills Act 1936 s 7. See also Public Trustee v Phillips [2004] SASC 142; BC200403089 regarding revocation of will of person lacking testamentary capacity. (TAS) Wills Act 1992 ss 27A-27H (VIC) Wills Act 1997 ss 21-30. See Hayden v State Trustees [2002] VSCA 11; BC200200906 , CA; State Trustees Ltd v Hayden (2002) 4 VR 229; [2002] VSC 98; BC200201547 ; Monger v Taylor [2000] VSC 304; BC200005219 . (WA) Wills Amendment Bill 2006 cl 24 inserting (WA) Wills Act 1970 Pts XI (wills of persons who lack testamentary capacity), XII (wills of persons who lack testamentary capacity made under the law of another place) when enacted.

28 Hill v Hill [2001] VSC 83; BC200101482 ; Re Palmer [2003] VSC 21; BC200300448 .29 Bryant v Blake [2004] SASC 369; BC200407824 ; Plowright v Burge [2005] VSC 490; BC200510876 ; Secretary Department of Human Services v Nancarrow [2004] VSC 450.30 Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 ; Boulton v Sanders [2003] VSC 405; BC200306052 . The paragraph below is current to 20 September 2007 [395-190] Insanity and insane delusions The mental condition of the testator may be such as to deprive him or her of the capacity to make a valid will.1 The testator may be affected by a general condition of mental imbalance2 or may suffer from particular delusions.3 An insane delusion is a fixed and incorrigible false belief which the sufferer cannot be reasoned out of.4 A delusion only affects the testators capacity if it relates to the testamentary act and the fact that the testator suffers from delusions therefore does not necessarily deprive him or her or the requisite mental capacity.5 If the testator lacks capacity in relation to any part of a will, that part cannot be severed from the rest of the will, with the result that the entire will is invalid.6 If the will is made during a lucid interval (that is, at a time when the testator is not affected by insanity or by any insane delusion) the will may be valid.7 Where there is evidence to show that the testator suffered from an insane delusion which affected the will, the onus of proving capacity lies with the person seeking to uphold the will.8 Capacity must be proved on the balance of probabilities.9 The onus of proof of lack of capacity, or incapacity, rests on the person alleging it. That onus must be discharged before the relevant court can pronounce against the force and validity of the will. Caselaw has found comprehensive criteria for incapacity where:10 (1) the onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument;11 (2) this onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence;12 (3) the proponent's duty is, in the first place, discharged by establishing a prima facie case;13 (4) a prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator;14 (5) a man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments;15 (6)

the quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances;16 (7) as instances of such material circumstances may be mentioned (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries,17 (b) the exclusion of persons naturally having a claim upon the testator,18 and (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence, taking a substantial benefit;19 (8) once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof;20 (9) to displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property;21 (10) the opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue;22 (11) while, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions;23 and (12) the instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.24 Notes 1 See, for example, Bull v Fulton (1942) 66 CLR 295; [1942] ALR 221; (1942) 16 ALJ 186 ; Hyslop v Hyslop [2006] NSWSC 1237; BC200609511 . See also mental health and intellectual

disability [285-35].2 Re Estate of Griffith (decd); Easter v Griffith (unreported, CA(NSW), Gleeson CJ, Kirby P and Handley J, No 40495/94, 7 June 1995, BC9504790) (it is not necessary to find a clinical disorder of the mind); Bull v Fulton (1942) 66 CLR 295 at 297; [1942] ALR 221; (1942) 16 ALJ 186 per Latham CJ. For the definition of mental illness see mental health [2851]. As to the effect of intellectual disability see mental health [285-10].3 Bull v Fulton (1942) 66 CLR 295; [1942] ALR 221; (1942) 16 ALJ 186 (testator suffered from a false belief that her nephews had forged her signature in respect of various business transactions); Worth v Clasohm (1952) 86 CLR 439; 26 ALJ 626; BC5200490 ; Anthony v Sanderson (unreported, CA(QLD), Pincus and Davies JJA, No 94/94, 7 December 1994, BC9404198) (testator suffered from paranoid delusion regarding her sister). See also Shaw v Crichton (unreported, SC(NSW), Bryson J, No 113127/92, 22 July 1994, BC9402836). See Di Cecco v Contini [2004] VSC 211; BC200403486 .4 Worth v Clasohm (1952) 86 CLR 439 at 449; 26 ALJ 626; BC5200490 per Dixon CJ, Webb and Kitto JJ. See also Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698 at 706 per Powell J. This must be assessed in the context of the testators education and culture (see Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698 at 706 per Powell J), including religious beliefs: Re Crooks; Akerman v Brown (unreported, SC(NSW), Young J, No 107881/93, 14 December 1994, BC9403413).5 Tipper v Moore (1911) 13 CLR 248; 18 ALR 341 ; Timbury v Coffee (1941) 66 CLR 277; 15 ALJ 159 (testator liable to drinking bouts which left him in a state of mental disturbance); Bull v Fulton (1942) 66 CLR 295 at 342; [1942] ALR 221; (1942) 16 ALJ 186 per Williams J; Norris v Tuppen [1999] VSC 228; BC9903881 .6 Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 at 274 per Needham J. Compare In the Estate of Bohrmann; Caesar v Bohrmann [1938] 1 All ER 271; (1938) 158 LT 180 (codicil made under an insane delusion held to be severable from will and other codicils).7 Timbury v Coffee (1941) 66 CLR 277 at 281; 15 ALJ 159 per Dixon J.8 Bull v Fulton (1942) 66 CLR 295; [1942] ALR 221; (1942) 16 ALJ 186 .9 Bull v Fulton (1942) 66 CLR 295; [1942] ALR 221; (1942) 16 ALJ 186 ; Bailey v Bailey (1924) 34 CLR 558; 30 ALR 230; [1924] VLR 294; BC2400030 .10 Bailey v Bailey (1924) 34 CLR 558; 30 ALR 230; [1924] VLR 294; BC2400030 .11 Baker v Batt (1838) 2 Moo PCC 317 at 319-320; 12 ER 1026 ; Bremer v Freeman (1857) 10 Moo PCC 306 at 357; 14 ER 508 ; Durnell v Cornfield (1844) 1 Rob Ecc 51; 163 ER 961 .12 Symes v Green (1859) 1 Sw & Tr 401 at 402; 164 ER 785 ; Baker v Batt (1838) 2 Moo PCC 317 at 319; 12 ER 1026 .13 Bremer v Freeman (1857) 10 Moo PCC 306 at 357; 14 ER 508 .14 Durnell v Cornfield (1844) 1 Rob Ecc 51 at 67; 163 ER 961 ; Baker v Batt (1838) 2 Moo PCC 317 at 330; 12 ER 1026 ; Barry v Butlin (1838) 2 Moo PCC 480 at 482; 12 ER 1089 ; Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; (1875) 32 LT 209 .15 Van Alst v Hunter (1821) 5 Johns Ch (NY) 148.16 Barry v Butlin (1838) 2 Moo PCC 480 at 484; 12 ER 1089 ; Jones v Godrich (1844) 5 Moo PCC 16 at 19-20; Wrench v Murray (1843) 3 Curt 623 at 635; 13 ER 394.17 Wrench v Murray (1843) 3 Curt 623 at 635; 13 ER 394; Brogden v Brown (1825) 2 Add 441 at 441-449; 162 ER 317; Durnell v Cornfield (1844) 1 Rob Ecc 51 at 67; 163 ER 961 ; Symes v Green (1859) 1 Sw & Tr 401 at 402; 164 ER 785 ; Bama Soondari Debi v Tara Soondari Debi (1891) LR 18 Ind App 132 at 139 per Lord Shand; Jagrani Kunwar v Durga Prasad (1913) 36 All 93 at 98 per Lord Shaw; Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47; Harwood v Baker (1840) 3 Moo PCC 282 at 285; 13 ER 117 ; Van Alst v Hunter (1821) 5 Johns Ch (NY) 148.18 Wrench v Murray (1843) 3 Curt 623; 13 ER 394; Brogden v Brown (1825) 2 Add 441 at 441-449; 162 ER 317; Harwood v Baker (1840) 3 Moo PCC 282 at 285; 13 ER 117 ; Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47.19 Wheeler v Alderson (1831) 3 Hag Ecc 574 at 587; Baker v Batt (1838) 2 Moo PCC 317 at 321; 12 ER 1026 ; Barry v Butlin (1838) 2 Moo PCC 480 at 483-484; 12 ER 1089 ; Bur Singh v Uttam Singh (1910) 38 Calc at 367 per Lord Robson. For current reports on age and sickness affecting wills see Kerr v Badran [2004] NSWSC 735; BC200406537 (aged); Donato v Mangravite [2005] NSWSC 488; BC200503636 (ill-health due to cancer); Harrison v Carey [2006] VSC 104; BC200601513 (age and ill-health). 20 Bremer v Freeman (1857) 10 Moo PCC 306 at 357; 14 ER 508 ; Waring v Waring (1848) 6 Moo PCC 342 at 355; 13 ER 715 ; Sutton v Sadler (1857) 3 CB (NS) 87 at 96; 140 ER 671 ; Bama Soondari Debi v Tara Soondari Debi (1891) LR 18 Ind App 132 at 139-140 per Lord Shand; Bates v Graves (1793) 2 Ves Jun 287 at 288; 30 ER 637; Bur Singh v Uttam Singh

(1910) 38 Calc at 366-7 per Lord Robson.21 Bur Singh v Uttam Singh (1910) 38 Calc at 367 per Lord Robson; Wingrove v Wingrove (1885) 11 PD 81; 55 LJP 7 .22 Kinleside v Harrison (1818) 2 Phill at 457-459; 161 ER 1196.23 Durnell v Cornfield (1844) 1 Rob Ecc 51; 163 ER 961 .24 Perera v Perera [1901] AC 354 ; Griffin v Palmer (1883) 8 PD 171; Barry v Butlin (1838) 2 Moo PCC 480 at 483-484; 12 ER 1089 .

Source

[Halsbury's Laws of Australia]

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(II) Intention The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-195] General If a capable 1 testator creates a document which complies with the formal requirements for a valid will but does not intend the document to be his or her last will, the will cannot be admitted to probate.2 In order for the will to be valid, the testator must intend it to take effect upon his or her death,3 although it is not necessary for the testator to be aware that a testamentary act has been performed.4 A document may be admitted to probate despite a failure to comply with formalities if the maker intended it to act as a testamentary disposition.5 A disposition may be conditional, in that the testator intends the disposition to take effect only upon the occurrence of a particular event.6 If that event does not take place, the will is of no effect.7 Useful criteria for assessing intention, in the context of applications for probate and section 18A of the Wills, Probate and Administration Act 1898,8 that provides for the admission to probate of a will that does not comply with the formalities where:9 (1) it must be established that there was a will, or a document purporting to show the deceaseds testamentary intentions;

(2) it must be shown that the document revoked all previous wills; (3) the presumption, that when a will is not produced it has been destroyed. must be overcome; (4) there must be evidence of the terms of the will; and (5) there must be evidence of due execution or that the deceased intended the document to constitute the deceaseds will. Notes 1 As to testamentary capacity see [395-175]-[395-190].2 Lister v Smith (1863) 3 Sw & Tr 282 at 288; 9 LT 578; 164 ER 1282 at 1285 per Sir J P Wilde (jest or a contrivance to effect a collateral object or instrument never seriously intended as a valid disposition). See also Nichols v Nichols (1814) 2 Phillim 180; 161 ER 1113 (putative testators competed to see who could make the shortest will). As to the formal requirements of a will see [395-280]-[395-385].3 In the Estate of Knibbs; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852 (the mere exchange of family gossip, opinions and information about family matters cannot be regarded as a testamentary act). The will must be intended by the testator to have immediate testamentary effect: Corbett v Newey [1996] 2 All ER 914 .4 Milnes v Foden (1890) 15 PD 105; 62 LT 498 ; Re Kemp Estate [1954] 2 DLR 451.5 Bartholomew v Henley (1820) 3 Phillim 317; 161 ER 1337. As to dispensing powers see further [395-300].6 See, for example, Re Govier (decd) [1950] P 237; (1950) 66 TLR 1042 .7 Re Govier (decd) [1950] P 237; (1950) 66 TLR 1042 . Compare In the Goods of Spratt [1897] P 28; (1896) 75 LT 518 .8 (NSW) Succession Act 2006 (opn on proc) s 8.9 Cahill v Rhodes [2002] NSWSC 561; BC200203752 at [55], [58] per Campbell J .

Source

[Halsbury's Laws of Australia]

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(III) Knowledge and Approval The paragraph below is current to 20 September 2007 [395-200] General The testator must know and approve of the contents of his or her will at the time of execution.1 The testator must believe and accept that his or her intentions for the disposition of his or her property after death have been made effective by the testamentary document drawn up in accordance with his or her instructions.2 The testator does not, however, need to comprehend fully the legal effect of the words used in the will.3 The person seeking to uphold a will bears the onus of proving the requisite knowledge and approval of the testator.4 There is a presumption that the testator knew of and assented to the contents of his or her will where capacity and the proper execution of the will are proved,5 provided that there are no suspicious circumstances.6 If the propounders of the will wish to have it admitted to probate with the exclusion of specific words, it is up to them to establish on the balance of probabilities that those words were added as a result of mistake, inadvertence or fraud.7 The reading over of a will by or to the testator may help establish that he or she knew and approved of the contents of the will, but it is not conclusive proof.8 A court may sever a provision of the will which the testator did not know and approve of, provided that the removal of the provision does not affect the meaning of the remaining words.9 Notes 1 Astridge v Pepper [1970] 1 NSWR 542 . Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284 , HL (where person who prepares will or arranges for preparation takes a benefit under will, this creates suspicion which must be removed by propounder of will); Re Morris; Lloyds Bank v Peake [1971] P 62; [1970] 2 WLR 865 . For more recent examples see Hyslop v Hyslop [2006] NSWSC 1237; BC200609511 ; Johnston v Johnston [2004] QSC 137; BC200402546 ; Diamond v Massin [2004] QSC 098; BC200402045 ; Belcastro v Belcastro [2004] WASC 111; BC200402966 .2 Re Flynn (decd); Flynn v Flynn [1982] 1 All ER 882; [1982] 1 WLR 310 at 320 per Slade J; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152 , PC; Perera v Perera [1901] AC 354 ; Parker v Felgate (1883) 8 PD 171 at 173; 32 WR 186 per Hannen P.3 See Rhodes v Rhodes (1882) LR 7 App Cas 192 at 199. If the testator possesses the requisite knowledge and approval it is immaterial if the testator, or the testators legal adviser, are mistaken as to the legal effect of the terms used in the instrument: In the Estate of Beech (decd); Beech v Public Trustee [1923] P 46 at 53-4; [1922] All ER Rep 106; (1922) 128 LT 616 per Salter J, CA.4 Re Flynn (decd); Flynn v Flynn [1982] 1 All ER 882; [1982] 1 WLR 310 at 319 per Slade J; Re Bryden [1975] Qd R 210 ; Re Fenwick (decd) [1972] VR 646 ; Re Whyte [1969] NZLR 519 at 520 per McGregor J; Re Smith; Marshall v Day [1956] NZLR 593 ; Nock v Austin (1918) 25 CLR 519 at 528; 25 ALR 88 per Isaacs J; Green v Dumsday (1916) 18 WALR 73 , SC(WA), Full Court; Kenny v Wilson (1911) 11 SR (NSW) 460 at 469; 28 WN (NSW) 124 per Rich AJ; Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; (1875) 32 LT 209 ; Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089 , PC; In the Will of Steward (decd) [1964] VR 179 .5 As to suspicious circumstances see [395-205]. As to mistake see [395-225]. As to fraud see [395-220].6 Re Flynn (decd); Flynn v Flynn [1982] 1 All ER 882; [1982] 1 WLR 310 at 320 per Slade J; Re Bryden [1975] Qd R 210 ; Re Fenwick (decd) [1972] VR 646 ; Re Hemburrow (decd) [1969] VR 764 ; Re Whyte [1969] NZLR 519 ; Re Smith; Marshall v Day [1956] NZLR 593 ; Nock v Austin (1918) 25 CLR 519 at 528; 25 ALR 88 per Isaacs J, HC of A, Full Court; Green v Dumsday (1916) 18 WALR 73 , SC(WA), Full Court; Kenny v Wilson (1911) 11 SR (NSW) 460; 28 WN (NSW) 124 ; Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; (1875) 32 LT 209 ; Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089 , PC.7 Re Bryden [1975] Qd R 210 ; Re Fenwick (decd) [1972] VR 646 at 652 per Menhennitt J.8 Re Fenwick (decd) [1972] VR 646 ; Re Bryden [1975] Qd R 210 . See also Nock v Austin (1918) 25 CLR 519; 25 ALR 88 , HC of A; Re Herbert Brothers (decd) (1990) 101 FLR 279 , SC(NT), Full Court.9 Osborne

v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368 ; Re Hemburrow (decd) [1969] VR 764 ; Re Fenwick (decd) [1972] VR 646 ; Rhodes v Rhodes (1882) LR 7 App Cas 192.

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[Halsbury's Laws of Australia]

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(IV) Suspicious Circumstances, Fraud and Undue Influence The paragraph below is current to 20 September 2007

[395-205] General Knowledge and approval1 may be presumed where a capable2 testator executed a will in accordance with the formalities.3 However, where evidence raises a suspicion4 that the will does not express the intention of the testator, it will not be admitted to probate unless the suspicion is removed and it is shown that the testator knew and approved the contents of the will.5 The courts suspicion may be aroused where the person who prepared the will,6 or a close relative of that person,7 receives a beneficial interest under it.8 The size of the benefit and its significance in terms of the whole of the testators estate are relevant in determining whether the gift is valid.9 The onus of allaying the suspicions of the court lies with those persons seeking to uphold the will.10

Where the testator is enfeebled, illiterate or blind the court may not admit the will to probate unless it is shown the testator knew and approved of the contents of the will.11 The court must be satisfied that the will was read to the testator, that the testator read the will or that he or she knew and understood the contents of the will at the time of execution.12

The common law principles relating to suspicious circumstances are as follows:13

(1) where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents; (2) where any suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document; (3) where the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate; (4) where the circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will; (5) but the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification; nor does the rule require as a matter of law any particular species of proof to satisfy the onus; and (6) the doctrine that suspicion must be cleared away does not create a screen behind which fraud or dishonesty may be relied on without distinctly charging it.

Notes 1 As to knowledge and approval see [395-200]. 2 As to capacity see [395-175]-[395-190]. 3 See, for example, Nock v Austin (1918) 25 CLR 519; 25 ALR 88; Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089, PC; Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; (1875) 32 LT 209; Kenny v Wilson (1911) 11 SR (NSW) 460; 28 WN (NSW) 124. As to the formal requirements of a will see [395-280]-[395-385]. 4 See generally Kerridge R, Wills Made In Suspicious Circumstances: The Problem Of The Vulnerable Testator, (2000) 59 (2) Cambridge Law Journal 310. 5 Nock v Austin (1918) 25 CLR 519; 25 ALR 88; Re Emanuel (decd) [1981] VR 113; In the Will of Shannon [1977] 1 NSWLR 210; Howie v Chatterton [1926] NZLR 595; Hendy v Jenkins (1901) 1 SR (NSW) BP & D 34; 18 WN (NSW) 140. There must be affirmative proof of the testators knowledge and approval: see, for example, Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284.

6 Where the person who prepared the will is a solicitor, it may be that the court will require a higher standard of proof negating suspicion than if the drawer was a lay person: see Re a Solicitor [1975] QB 475 (solicitor must not only advise the testator to take independent advice, but must also ensure testator takes that advice); In the Will of Shannon [1977] 1 NSWLR 210 (legal advisor who drafts testators will and receives a remuneration there from over and above his or her professional costs is obliged to explain the operation of the provision for remuneration fully to the testator, and in particular that it will involve a greater charge to the estate for administration than normal). Compare Re Nickson (decd) [1916] VLR 274; (1916) 38 ALT 46 (not necessary to show client had independent advice where gift to solicitor in clients will). 7 In the Will of Walsh (decd) (1892) 18 VLR 739; Thomas v Jones [1928] P 162; Tanner v Public Trustee [1973] 1 NZLR 68. 8 Re Emanuel (decd) [1981] VR 113; In the Will of Shannon [1977] 1 NSWLR 210; Tanner v Public Trustee [1973] 1 NZLR 68; Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284; Re Worth (decd); Worth v Clasohm [1951] SASR 188; Re Breen [1927] VLR 164; Re Proud (1922) 18 Tas LR 10; Nock v Austin (1918) 25 CLR 519; 25 ALR 88; Public Trustee v McKeon (1917) 17 SR (NSW) 157; Re Nickson (decd) [1916] VLR 274; (1916) 38 ALT 46; Green v Dumsday (1916) 18 WALR 73; Farrelly v Corrigan [1899] AC 563; (1899) 68 LJPC 133; In the Will of Walsh (decd) (1892) 18 VLR 739; Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089, PC. For more recent examples, see Becker v Public Trustee (NSW) [2006] NSWSC 743; BC200605645; Vernon v Watson [2002] NSWSC 600; BC200203703; Trust Co of Australia Ltd v Daulizio [2003] VSC 358; BC200305588; Daulizio v Trust Co of Australia Ltd [2005] VSCA 215; BC200506376. 9 See, for example, Re Proud (1922) 18 Tas LR 10 (although entire estate left to drafter of testators will, the estate was small and the only other claimant did not contest will). If the suspicious circumstances are not dispelled and the gift fails, those provisions relating to the gift may be severable, so that the rest of the will is admissible to probate. As to gifts generally see [395-1060][395-1145]. 10 See, for example, Tyrrell v Painton [1894] P 151. Proof that the will had been read to the testator and was subsequently read and expressly approved of by the testator will suffice: Nock v Austin (1918) 25 CLR 519; 25 ALR 88 (no particular species of proof required to satisfy the court). It may be enough that the testator, knowing the contents of the will, acquiesced to the disposition for a number of years: Hendy v Jenkins (1901) 1 SR (NSW) BP & D 34; 18 WN (NSW) 140. 11 Re the Will of Clayton (1906) 8 GLR 516. 12 See, for example, Fulton v Andrew (1875) LR 7 HL 448; [1874-80] All ER Rep 1240; (1875) 32 LT 209. 13 Nock v Austin (1918) 25 CLR 519 at 528; 25 ALR 88; Roos v Karpenkow (1998) 71 SASR 497; BC9803311 at [10]-[11]. The paragraph below is current to 20 September 2007

[395-210] Undue influence Undue influence in the preparation of a will arises where there is coercion of the testator.1 Lesser forms of interference such as importunity, exertion of influence or persuasion do not amount to undue influence unless there is actual coercion.2 Unlike the situation with inter vivos transactions,3 in probate the presumption of undue influence is not as easily raised by the existence of a specific relationship between the testator and another party.4 The exercise of undue influence must be directly related to the will itself and not to extraneous

transactions.5 However, where the testator was under the influence of persons who benefit under his or her will in relation to other transactions of significance, it may be that where those people were concerned the testator was not a free agent, and his or her will was the product of coercion.6

In the context of wills, what is usually required is the existence of actual undue influence. That arises when a court is satisfied that the benefit in question was the result of undue influence expressly used by the beneficiary to influence the testator for the purpose of securing that benefit such that the will was the result of overbearing of the testators will.7 There exists a rebuttable presumption that there was no undue influence, especially with those relationships arising in the context of the relativity between testators and family beneficiaries, but the presumption is displaced if undue influence is proven as fact. The influence exerted must be shown to have prevented the relevant party from acting spontaneously or from exercising their will freely and independently.8 The undue influence must be more than appeals to sentiments.9 The testator may be led but not driven.10

If the whole of the will is affected by undue influence, the will is invalid, but if only part of the will is affected, that part may be severed and the rest of the will admitted to probate.11

Rules of Professional Conduct and Practice may regulate the receipt of testamentary benefits by legal practitioners.12

Notes 1 Buckley v Maddocks (1891) 12 LR (NSW) Eq 277; In the Will of Wilson (1897) 23 VLR 197; 3 ALR 181; Winter v Crichton (1991) 23 NSWLR 116. 2 Wingrove v Wingrove (1885) 11 PD 81 at 82-3; 55 LJP 7 per Sir J P Hannen (undue influence only occurs where the testator is coerced into doing something that he or she does not desire to do); Williams v Goude (1828) 1 Hag Ecc 577 at 581; 162 ER 682 per Sir J Nicholl (influence to vitiate an act must amount to force and coercion destroying free agency). Where pressure is exerted on the testator so as to overpower his or her volition without convincing his or her judgment there can be no valid will: Hall v Hall (1868) LR 1 P & D 481 at 482; 18 LT 152 per Sir J P Wilde. If the testator is in poor health, very little pressure may amount to coercion: see Wingrove v Wingrove (1885) 11 PD 81 at 82-3; 55 LJP 7 per Sir J P Hannen; Winter v Crichton (1991) 23 NSWLR 116. 3 See equity [185-970]-[185-985]. In this respect the operation of the doctrine of undue influence in relation to testamentary dispositions differs significantly from its operation in inter vivos transactions: Craig v Lamoureux [1920] AC 349; (1919) 122 LT 208; Re Teddy; Hockey v Honeychurch [1940] SASR 354. 4 Boyse v Rossborough (1857) 6 HL Cas 2 at 49; [1843-60] All ER Rep 610; (1857) 10 ER 1192 at 1211 per Lord Cranworth LC. Undue influence cannot be presumed from the relationships between a testator and his or her beneficiaries, as these relationships are often those where gifts by will are to be expected: see Nye v Sewell (1894) 15 LR (NSW) B & P 18; Re Teddy; Hockey v Honeychurch [1940] SASR 354 at 358 per Napier J. The particular facts of a case may arouse the courts suspicion that the will does not express the testators intention and affirmative proof of the testators knowledge and approval may be required: see [395-200] (knowledge and approval), [395-205] (suspicious circumstances). This is a separate issue from that of undue influence, where the burden of proving the undue influence lies with the person alleging it: see [395-215]. The burden of dispelling suspicious circumstances lies with the persons seeking to uphold the will: see [395-205]. For the relationships which give rise to a presumption of undue influence in the context of inter vivos

transactions see equity [185-975]. 5 Boyse v Rossborough (1857) 6 HL Cas 2 at 51; [1843-60] All ER Rep 610; (1857) 10 ER 1192 at 1212 per Lord Cranworth LC. 6 Boyse v Rossborough (1857) 6 HL Cas 2; [1843-60] All ER Rep 610; (1857) 10 ER 1192. See also Johnson v Buttress (1936) 56 CLR 113; [1936] ALR 390; BC3600016. For more recent decisions see Tracewska v Goonetilleke [2007] NSWSC 340; BC200702585; Quek v Beggs (1990) 5 BPR 11,761; BC9001679. 7 Becker v Public Trustee (NSW) [2006] NSWSC 743; BC200605645 at [87] per Nicholas J citing Miller v Jones [1999] NSWCA 467 at [28] per Beazley J. 8 Johnson v Buttress (1936) 56 CLR 113 at 120 per Latham CJ, at 138 per Dixon J; [1936] ALR 390; BC3600016; Parbs v Garrett [1941] SASR 1. 9 Miller v Jones [1999] NSWCA 467 at [28] per Beazley J. 10 Miller v Jones [1999] NSWCA 467 at [28] per Beazley J citing Hall v Hall (1868) LR 1 P & D 481 at 482; 18 LT 152 per Sir J P Wilde. 11 Allen v MPherson (1847) 1 HL Cas 191 at 209; 9 ER 727 at 736 per Lord Lyndhurst; Re Nickson (decd) [1916] VLR 274 at 282; (1916) 38 ALT 46 per ABeckett J. 12 See, for example, the Model Rules of Professional Conduct and Practice 2002 R 10, Law Council of Australia and the Rules of Professional Conduct and Practice 2003 (SA) R 10 Law Society of South Australia. The paragraph below is current to 20 September 2007

[395-215] Onus of proof of undue influence The burden of proving the existence of undue influence falls on those persons alleging it.1 They need not establish undue influence beyond a reasonable doubt,2 but the nature and amount of evidence necessary will vary according to the circumstances.3 All reasonable inferences which may be drawn from the circumstances surrounding execution of the will may be used to establish undue influence.4 Although the following propositions regarding evidence of undue influence are taken from common law determining undue influence in the context of inter vivos transactions, there appears to be no reason why they should not apply to deciding undue influence in the context of relationships between testators and relatives, especially as superior courts currently cite that common law as authority for determining undue influence in the context of wills.5

There needs to be precise examination of the facts, scrutiny of the exact relations established between the parties and consideration of the mental capacities, processes and idiosyncrasies of the donor.6 The following factors may be relevant for consideration:

(1) the donors and donees standard of intelligence, standard of education, character, personality, age, state of health and experience in business affairs; (2)

the donors and donees duration of relationship and the nature of the relationship; (3) the intricacy of the business affairs of the donor and the donee; (4) the opportunities available for the donor to influence the donee; and (5) whether the donee was given any opportunity to receive independent advice, especially in the event of gifts of substantial sums of money or complicated transactions.7

Independent advice is a factor in determining whether the gift is voluntary and understood by the donor8 because that demonstrates the exercise of a free and independent will.9 Mere giving of advice not necessarily sufficient in itself10 especially if:

(1) it is unlikely to affect the transaction;11 (2) the transaction is not complex;12 (3) the transaction is not substantial;13 (4) the parties, positions are approximately equal; and 14 (5) the gift is small.15

Whomever gives advice, it must be sufficient to inform the donor of every material fact and the propriety of the transaction. To read the document word for word to the donor and ask if the donor has any questions is not enough. An opportunity must be afforded for the donor to read the document at leisure, ask questions, and be given answers in plain language. The donor must understand the effect and operation of any document.16

Notes 1 Bool v Bool [1941] St R Qd 26 at 36 per Webb CJ; Re Stone [1931] NZLR 1039; Craig v Lamoureux [1920] AC 349; (1919) 122 LT 208; McDonald v Valentine [1920] NZLR 270; Mountain v Styak [1919] GLR 128 at 129 per Hosking J (affirmed Mountain v Styak [1922] NZLR 131; [1921] GLR 647); Hanna v Hanna (1912) 15 GLR 261; Aimers v Taylor (1897) 15 NZLR 530; Perpetual

Trustee Co Ltd v Clarke (1895) 16 LR (NSW) B & P 20; Nye v Sewell (1894) 15 LR (NSW) B & P 18; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277; Parfitt v Lawless (1872) LR 2 P & D 462; 27 LT 215; Boyse v Rossborough (1857) 6 HL Cas 2; [1843-60] All ER Rep 610; (1857) 10 ER 1192; De Bruin v De Bruin [2004] WASC 20; BC200400655 at [17] per Le Miere J. The burden does not shift if it is shown that a certain relationship existed between the testator and a beneficiary: see Boyse v Rossborough (1857) 6 HL Cas 2; [1843-60] All ER Rep 610; (1857) 10 ER 1192 at 1211 per Lord Cranworth LC; Nye v Sewell (1894) 15 LR (NSW) B & P 18; Re Nickson (decd) [1916] VLR 274; (1916) 38 ALT 46; Re Teddy; Hockey v Honeychurch [1940] SASR 354. See further note 4, below.

2 Bool v Bool [1941] St R Qd 26 at 45 per Douglas J (preponderance of the evidence). Undue influence should not be alleged, however, unless there is strong evidence in support of it: Re Cutcliffes Estate; Le Duc v Veness [1959] P 6 at 20; [1958] 3 All ER 642; [1958] 3 WLR 707 per Hodson LJ. Some authorities assert the burden of proof to be on the balance of probabilities: see Baburin v Baburin (No 2) [1990] 2 Qd R 101 at 109 per Kelly SPJ. 3 See, for example, Callaghan v Myers (1880) 1 LR (NSW) L 351, CA(NSW); Perpetual Trustee Co Ltd v Clarke (1895) 16 LR (NSW) B & P 20. 4 Re Stone [1931] NZLR 1039; Perpetual Trustee Co Ltd v Clarke (1895) 16 LR (NSW) B & P 20; Nye v Sewell (1894) 15 LR (NSW) B & P 18; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277; Watson v Kerridge (1888) 9 LR (NSW) Eq 35; Callaghan v Myers (1880) 1 LR (NSW) L 351; Parfitt v Lawless (1872) LR 2 P & D 462; 27 LT 215; Buckley v Millar (1869) 8 SCR (NSW) Eq 4 (affirmed Buckley v Millar (1869) 8 SCR (NSW) Eq 4 at 74). 5 Becker v Public Trustee (NSW) [2006] NSWSC 743; BC200605645 at [88] per Nicholas J citing Revie v Druitt [2005] NSWSC 902; BC200506912 at [51] per Windeyer J (who cites Wingrove v Wingrove (1885) 11 PD 81; 55 LJP 7; Boyse v Rossborough (1857) 6 HL Cas 2; [1843-60] All ER Rep 610; (1857) 10 ER 1192; Winter v Crichton (1991) 23 NSWLR 116); Bailey v Tredrea [2005] NSWSC 108; BC200501028; Woodland v Rodriguez [2004] NSWSC 1167; BC200408270; BarMordecai v Hillston [2004] NSWCA 65; BC200408270; Hillston v Bar-Mordecai [2003] NSWSC 89; BC200300895; Turner v Windever [2003] NSWSC 1147; BC200307587; Wittman v Wittman [2006] QSC 142; BC200604282; Re Herbert Brothers (decd) (1990) 101 FLR 279; Public Trustee v Phillips [2004] SASC 142; BC200403089. 6 Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118-119; 26 ALJR 687; BC5300840 per Dixon CJ, McTiernan and Kitto JJ. 7 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577 per Gillard J. 8 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577-578 per Gillard J. 9 Banco Exterior International SA v Thomas [1977] WLR 221 at 230 per Sir R Scott V-C, CA. 10 Westmelton (Vic) Pty Ltd (receiver and manager appointed) v Archer and Shulman [1982] VR 305; [1982] ANZ ConvR 468. 11 Linderstam v Barnett (1915) 19 CLR 528; [1915] HCA 5. 12 Bank of New South Wales v Rogers (1941) 65 CLR 42 at 87; 15 ALJ 67 per Williams J. 13 Johnson v Buttress (1936) 56 CLR 113 at 120; [1936] ALR 390; BC3600016 per Latham CJ. 14 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577 per Gillard J.

15 Bank of New South Wales v Rogers (1941) 65 CLR 42 at 87; 15 ALJ 67 per Williams J. See also Watkins v Combes (1922) 30 CLR 180; 28 ALR 158; BC2200036. 16 See Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30. The paragraph below is current to 20 September 2007

[395-216] Unconscionability The doctrine of unconscionability1 may be considered in tandem with that of undue influence in relation to the validity of wills. The doctrine of unconscionability differs from that of undue influence in that, whereas with undue influence the will of the donor is not voluntary and independent because it is overborne, with unconscionability the will of the donor may be voluntary and independent but the donee takes advantage of the disadvantageous position in which the donor finds himself or herself.2 The unconscionable bargain eventuates when one party in the relationship, although not deprived of an independent and voluntary will, remains incapable of making a valid judgment regarding their interest because of emotional involvement in a close, usually domestic, relationship.3 These concepts, unconscionable bargains and emotional dependence, are treated independently of the concept of undue influence. Two elements are essential:4

(1) one party must be at a special disadvantage to the other party; and (2) the other party must have unconscionable taken advantage of the special disadvantage of the dependent party.

Here, what is examined is the conduct of the stronger party in attempting to acquire or retain the benefits of dealing with a person under a disability in circumstances where it is inappropriate for that stronger party to do so.5 The transaction may be fair in itself but unfair in the circumstances, especially those surrounding the donees execution of the documents. There must be relational inequality and unconscionable advantage taking.6

The jurisdiction of courts of equity to grant relief against unconscionable dealings applies generally to circumstances where a party to a transaction is under a special disability when dealing with the other party to the transaction. What flows from this is an absence of any reasonable equality between them. The special disability must be sufficiently evident to that other party to make it clear that the obtaining by that other party of a benefit from the transaction with the person with a special disability is unconscionable.7

Special disabilities can include illness, ignorance, inexperience, impaired faculties, financial need and any other circumstances affecting the ability of that party to preserve that partys interests.8

There appears to be no requirement that the conduct of the creditor be deliberately unconscionable

as the concept may extend to include a situation where the creditor should have known of the risk to the weaker party but was reckless about that risk to the point of acting unconscionably.9

In cases where unconscionability is found, there is often inadequate consideration moving from the stronger party for the transaction. However, it is not essential that inadequacy of consideration be found to support unconscionability.10 A transaction may remain unfair and unreasonable if the donee is under a special disability that removes reasonable equality between the parties.11

The High Court has left open the question of whether the principle of unconscionability applies to relationships other than spouses.12

The following criteria have been considered grounds for the setting aside transactions on the ground of unconscionability:

(1) mental disorder rendering the person incapable of understanding a contract and the donee is aware of the mental disorder;13 (2) intoxication, to the degree that the person was incapable of making any judgment about the transaction;14 (3) lack of knowledge and education, so that the relevant document was not understood by the donees;15 (4) emotional dependence, so that the donee is vulnerable to exploitation by the other party;16 and (5) vulnerability and disdvantage due to age and inability to be look after oneself.17

Given the difficulty in proving inter vivos undue influence in relation to estate matters, reliance upon unconscionability in equity may be a useful and practicable alternative cause of action.18

Notes 1 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; 46 ALR 402; 57 ALJR 358; BC8300072 the High Court set aside, on the ground of unconscionability, a guarantee given by persons under a special disability because of age (76 and 71 years); limited understanding of English, especially written; manner of presentation of documents by the representative of the bank to the donees at their home; lack of knowledge and understanding of the documents, which had not

been read by and were not explained to the donees. 2 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461; 46 ALR 402; 57 ALJR 358; BC8300072 per Mason J. See also Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66; [1998] HCA 66; BC9805443. 3 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461; 46 ALR 402; 57 ALJR 358; BC8300072 per Mason J; Garcia v National Australia Bank Ltd (1998) 194 CLR 395; 155 ALR 614; [1998] HCA 48; BC9803588. 4 See Louth v Diprose (1992) 175 CLR 621; 110 ALR 1; BC9202680; D v L (1990) 14 Fam LR 482 at 497 per Legoe J, CA. 5 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474; 46 ALR 402; 57 ALJR 358; BC8300072 per Deane J. 6 Louth v Diprose (1992) 175 CLR 621 at 637; 110 ALR 1; BC9202680 per Deane J. 7 Louth v Diprose (1992) 175 CLR 621 at 637; 110 ALR 1; BC9202680 per Deane J. 8 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 per Mason J, at 477 per Deane J; 46 ALR 402; 57 ALJR 358; BC8300072; Micarone v Perpetual Trustees Australia Pty Ltd (1999) 75 SASR 1 at [184]-[207] especially [196]. 9 Australia and New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12 at 23 per Derrington J. 10 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 475; 46 ALR 402; 57 ALJR 358; BC8300072 per Deane J. 11 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474; 46 ALR 402; 57 ALJR 358; BC8300072 per Deane J. 12 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 408-409; 155 ALR 614; [1998] HCA 48; BC9803588 per Gaudron, McHugh, Gummow and Hayne JJ. See also Nolan v Westpac Banking Corp (1989) 51 SASR 496; 98 FLR 266 per Ligertwood AJ, regarding ex-spouses. 13 Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383; BC5400600 where the parties were sisters and the executor of an estate. See also Wittman v Wittman [2006] QSC 142; BC200604282 where the court took into account the mental disorders of the deceased and set aside a deed of agreement. 14 Blomley v Ryan (1956) 99 CLR 362; BC5600790 where the parties were vendor and purchaser of farming land. 15 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; 46 ALR 402; 57 ALJR 358; BC8300072 where the parties were aged parents and guarantors. 16 Louth v Diprose (1992) 175 CLR 621; 110 ALR 1; BC9202680 where the parties were a solicitor and an infatuated woman friend; Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66; [1998] HCA 66; BC9805443 where the parties were uncle and nephew. 17 Luscombe v Hammond [2007] NSWSC 479; BC200703601, where parties were man in nursing home and woman visitor. See also Bridgewater v Leahy (1998) 194 CLR 457; 158 ALR 66; [1998] HCA 66; BC9805443 18 See Hamilton B, The Doctrine of Unconscionable Bargains in Equity: Potent Sword for Estate Lawyers (2007) 27(4) Queensland Lawyer 180.

The paragraph below is current to 20 September 2007

[395-220] Fraud and Forgery A testator may be misled as to the nature of his or her relationship with a person, inducing him or her to name that person as a beneficiary in the will.1 Similarly, the testator may be led into forming a false impression about persons who would normally expect to benefit under the will, resulting in the testator excluding those persons from his or her will.2 In both cases the testators will is vitiated by reason of the fraud perpetrated upon the testator.3 A will is only vitiated by fraud if the terms of the disposition were created as a result of the fraud and not for some other reason.4 The onus of establishing that the instrument was procured by fraud lies on those persons alleging such fraud.5 It may be possible to sever those portions of the will that were induced by fraud.6

Allegations of fraud may also be asserted against grants of probate.7

Allegations of forgery have also been made in relation to wills.8

Notes 1 In the Estate of Posner (decd) [1953] P 277; Re Kelly; Executor Trustee and Agency Co of South Australia Ltd v Kelly [1929] SASR 262. 2 Hanna v Hanna (1912) 15 GLR 261; Aimers v Taylor (1897) 15 NZLR 530; Boyse v Rossborough (1857) 6 HL Cas 2 at 53; [1843-60] All ER Rep 610; (1857) 10 ER 1192 at 1213 per Lord Cranworth LC. 3 See, for example, Aimers v Taylor (1897) 15 NZLR 530. As to fraud generally see equity [185875]-[185-905]. As to deceit see tort [415-1620]-[415-1630]. See also Nikolic v Nikolic [2001] NSWSC 1121; BC200108629 where willmaker claimed fraudulent misrepresentation regarding the contents of two wills. 4 In the Estate of Posner (decd) [1953] P 277; Re Kelly; Executor Trustee and Agency Co of South Australia Ltd v Kelly [1929] SASR 262. See also Re Pozniak Estate: Morgan v Reuben [2005] NSWSC 766; BC200505706 where signature of deceased on will was found to be a forgery. 5 Winter v Crichton (1991) 23 NSWLR 116; Hanna v Hanna (1912) 15 GLR 261; Craig v Lamoureux [1920] AC 349; (1919) 122 LT 208; Re Hodgins (1978) 85 DLR (3d) 705; Thompson v Bella-Lewis [1997] 1 Qd R 429. The standard of proof is the normal civil standard, that is, proof on the balance of probabilities: see generally evidence [195-325]-[195-330]. 6 Re Nickson (decd) [1916] VLR 274 at 282; (1916) 38 ALT 46 per ABeckett J; Allen v MPherson (1847) 1 HL Cas 191; 9 ER 727 at 736. 7 Smith Estate: Smith v Smith [2005] NSWSC 1340; BC200511135. 8 Boland v Morton Re Estate of Finlow [2004] NSWSC 1173. The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-225] Mistake and Rectification A probate court has only a limited jurisdiction to correct errors made by the testator in his or her will.1 At common law a probate court may omit words mistakenly included in a will2 but cannot add words missing from the will3 even if the omission of the words was inadvertent.4 This has been altered in some jurisdictions by statute.5 The doctrine of rectification applicable to inter vivos transactions does not extend to wills.6 A mistake may arise where the testator executes the wrong document,7 where the testator mistakes the legal effect of the words in the will8 or where words are mistakenly included in the will.9 Where the testator executes the wrong document, probate will not be granted.10 Where the testator intends certain words to be included in his or her will, then, notwithstanding that he or she or his or her legal adviser, is mistaken as to their legal effect, the will, including those words, will be admitted to probate.11 The testator is deemed to have knowledge and approval12 of the will even when mistaken as to the legal effect of the words contained in it.13

Where words are included in the will by mistake, whether due to the drafter of the will mistaking the testators intention or failing to record it correctly, probate will be granted with the words omitted.14 Such a mistake is a mistake of fact and, unlike the situation where there is a mistake of law,15 the probate court can rectify it by omitting the offending words.16 However, evidence of words will not be omitted if the nature of the entire will would be altered17 or if the testator knew and approved of the words.18 Extrinsic evidence is admissible to show that the testator was mistaken as to the contents of the will.19 Courts apply the following test:20

(1) What were the testators intentions regarding the dispositions for which rectification is sought? (2) Does the will as expressed fail to carry out those intentions?

However, the testators intentions before or after drafting and executing the will are not usually admissible.21

In all jurisdictions except Western Australia, a court may alter a will if it is satisfied that the instrument fails to carry out the testators intentions.22

Courts have rectified wills in the following circumstances:

(1) inserted words of inclusion to embrace property not mentioned;23 (2) corrected mathematical calculations to ensure shares evenly distributed among beneficiaries;24 (3) enlarged the description of property described as personal to include real property;25 (4) corrected the misdescription of real property to satisfy the testators intention to leave that property to the daughter;26 (5) entire estate not disposed of so a that portion falls into intestacy;27 (6) correct omission to gift the residue;28 (7) conflicting documents leading to bona vacantia; and29 (8) mistaken belief in transfer of properties inter vivos.30

A court has refused to rectify to adjust a mistaken quantum of residue in order to ensure large residue did not devolve entirely to charities.31

A grant of probate does not prevent rectification.32

An implication of applications for rectification may be an action in negligence against the legal practitioner drafting the will needing rectification.33

Notes 1 Re Hemburrow (decd) [1969] VR 764; Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368. As to the respective roles of the courts of probate and of construction see [395-910]. See further [395-955] and [395-2400]-[395-2440]. For a history of rectification see Sherrin C, Rectification: Correcting Mistakes in Wills (2000) 30 Hong Kong Law Journal 223 pp 223-226. 2 In the Goods of Boehm [1891] P 247; [1891-94] All ER Rep Ext 2044; (1891) 64 LT 806. Compare Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368. See also

Dippert v Dippert [2001] NSWSC 167; BC200101168; Coset No 15 Pty Ltd v Blagojevic (2003) 11 BPR 20,883; [2003] NSWSC 418; BC200302526. 3 Re Hemburrow (decd) [1969] VR 764. 4 Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487; 46 WN (NSW) 151. See also Re Tait (decd) [1957] VR 405; [1957] ALR 862; In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6. See also Harter v Harter (1873) LR 3 P & D 11 (the words and personal were mistakenly omitted from real and personal property; application to omit real in order to achieve the intended effect failed on the grounds that the error was one of omission and it was not open to the court to omit from the will other words known and approved by the testator); Re Hemburrow (decd) [1969] VR 764. 5 See note 22 below. 6 As to the doctrine of rectification generally see equity [185-1620], [185-1625]. See also Mortensen v New South Wales (unreported, NSWCA, Sheller JA, 40544/1990, 12 December 1991, BC9101347) at 6 per Sheller JA: I think it may be productive of error in a particular case when determining whether an order should be made under [(NSW) Wills, Probate and Administration Act 1898] s 29A to pay over much regard to the principles evolved by equity as part of the doctrine of rectification. Primarily the court is concerned with the meaning of the language of the section. 7 For example, where two people draw up similar wills and then each mistakenly executes the will of the other: see In the Estate of Meyer [1908] P 353; Re Petchell (decd) (1945) 46 WALR 62. 8 See, for example, In the Estate of Beech (decd); Beech v Public Trustee [1923] P 46; [1922] All ER Rep 106; (1922) 128 LT 616. 9 For example, where a word is included in the will by mistake and without the knowledge of the testator: see In the Goods of Oswald (1874) LR 3 P & D 162; 30 LT 344. 10 The requisite testamentary intention is lacking because the testator, in executing the wrong document, really intended to execute another document: In the Estate of Meyer [1908] P 353; Re Petchell (decd) (1945) 46 WALR 62. Compare Guardian Trust and Executors Co of New Zealand Ltd v Inwood [1946] NZLR 614; Re Branden [1952] 4 DLR 688. 11 See Collins v Elstone [1893] P 1; (1892) 67 LT 624 (where testator advised incorrectly about effect of revocation clause, words admitted to probate because she intended them to appear). 12 As to knowledge and approval see [395-200]. 13 In the Estate of Beech (decd); Beech v Public Trustee [1923] P 46 at 53-4; [1922] All ER Rep 106; (1922) 128 LT 616 per Salter J, CA; Collins v Elstone [1893] P 1; (1892) 67 LT 624. The testator cannot approve of the words used in the will only on the condition that they have a legal effect which matches the testators intention: Morrell v Morrell (1882) 7 PD 68; [1881-85] All ER Rep 642; Collins v Elstone [1893] P 1; (1892) 67 LT 624; In the Estate of Beech (decd); Beech v Public Trustee [1923] P 46; [1922] All ER Rep 106; (1922) 128 LT 616; Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487; 46 WN (NSW) 151. 14 See, for example, Morrell v Morrell (1882) 7 PD 68; [1881-85] All ER Rep 642; Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368. 15 See note 11, above. 16 In the Goods of Boehm [1891] P 247; [1891-94] All ER Rep Ext 2044; (1891) 64 LT 806. Compare Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368. 17 Re Horrocks; Taylor v Kershaw [1939] P 198; [1939] 1 All ER 579 (where will included a gift of

residue for such charitable or benevolent objects that the testators trustees might select, and executor argued the word or was a typing error, or not omitted because to do so would have altered effect of rest of will); Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368; Re Hemburrow (decd) [1969] VR 764. 18 Re Horrocks; Taylor v Kershaw [1939] P 198; [1939] 1 All ER 579. 19 See, for example, Kovacs v Fogarty [2007] ACTSC 24; BC200702747; Bullock v Bullock [2003] QSC 258; BC200304437; Dobryden v Wagner (2004) 90 SASR 515; [2004] SASC 413; BC200408518; Morgan v Moore [2000] VSC 94; BC200001536; Re Phelan (decd) [1971] 3 WLR 888; Re Luck (decd) [1977] WAR 148; In the Goods of Boehm [1891] P 247; [1891-94] All ER Rep Ext 2044; (1891) 64 LT 806; Re Morris; Lloyds Bank v Peake [1971] P 62; [1970] 2 WLR 865. 20 Re Segelman [1996] Ch 171 at 180; [1995] 3 All ER 676 per Chadwick J, cited in Re Estate of Huszar [1999] NSWSC 388; BC9902190 at [10] per Young J. 21 Re Allen [1988] 1 Qd R 1 and Re Hess [1992] 1 Qd R 176 per Wilson J cited in Wolyncevic v Cameron [2004] QSC 354; BC200406689 at [6] where a will leaving the entire property to the daughter and to the 2 grandchildren was rectified to benefit the daughter only. 22 (ACT) Wills Act 1968 s 12A (NT) Wills Act 2000 s 27

(NSW) Wills, Probate and Administration Act 1898 s 29A; (NSW) Succession Act 2006 (opn on proc) s 27. See also Mortensen v New South Wales (unreported, CA(NSW), Sheller, Mahoney and Meagher JJA, No 40544/90, 12 December 1991, BC9101347); Estate of Gillespie (unreported, SC(NSW), Powell J, No 114668/91, 25 October 1991, BC9101473); Egan v O'Brien [2006] NSWSC 1398; BC200610480; Freedman v Parton [2005] NSWSC 1101; BC200509264; Menna v Jacobs; Re Estate of Nolan [2004] NSWSC 1191; BC200408604; Long v Long [2004] NSWSC 1002; BC200407231.

(QLD) Succession Act 1981 ss 33-33A; see Hinds v Collins [2005] QSC 362; BC200510559. See also Re Hess [1992] 1 Qd R 176.

(SA) Wills Act 1936 s 25AA. See Australian Executor Trustees Ltd v Casanova [2005] SASC 93; BC200501264; Re Estate of Miller (decd) [2002] SASC 358; BC200206473.

(TAS) Wills Act 1992 s 47. See Cuthbertson v Hopwood [2000] TASSC 92; BC200003952.

(VIC) Wills Act 1997 s 31. See Re Estate of Prevost [2004] VSC 537; BC200409397.

There are no equivalent provisions in Western Australia. However it is important to note that the Supreme Court of Western Australia will be given powers of rectification when the (WA) Wills Amendment Bill 2006 cl 24 is enacted which will insert section 50 into the (WA) Wills Act 1970.

23 Davies: re Estate of Rose [1999] NSWSC 365; BC9901967. 24 Re Estate of Huszar [1999] NSWSC 388; BC9902190. 25 Long v Long [2004] NSWSC 1002; BC200407231: all my personal estate of whatsoever nature and wheresoever situated. See also Rawack v Spicer [2002] NSWSC 849; BC200205592 at [26][29] per Campbell J. 26 Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556; BC200303409 where testator left real property to daughter but that property was already owned by the daughter. For a commentary on misdescriptions of places or persons see Haines DM, Construction of Wills in Australia, Sydney, LexisNexis Butterworths, 2007, Ch 12. 27 Re Estate of Revost [2004] VSC 537; BC200409397. 28 Estate of Quick (unreported, SASC, Williams J, 2466/1995, 12 Feb 1996, BC9600401). 29 Trimmer v Lax (unreported, SASC, Williams J, 2466/1995, 12 Feb 1997, BC9702254). 30 Menna v Jacobs: Re Estate of Nolan [2004] NSWSC 1191; BC200408604. 31 Glen v Bilton: Re Estate of Hextall [2005] NSWSC 1365; BC200511905. 32 Re Estate of Huszar [1999] NSWSC 388; BC9902190 citing Re Brisbane (unreported, SC(NSW), Powell J, 19 June 1992, BC9201802). 33 See ODell E, Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again (2002) 65 Modern Law Review 360; Kerridge R and AHR Brierley, Mistakes In Wills: Rectify And Be Damned (2003) 62(3) Cambridge Law Journal 750.

Source [Halsbury's Laws of Australia]

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(4) FORMAL REQUIREMENTS (A) General Principles The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

[395-280] Overview In addition to the testator possessing the necessary testamentary capacity,1 a will must, in order to be valid, comply with certain formalities required by legislation.2 As a general rule, courts require strict compliance with the formalities and will not admit an instrument to probate that fails to satisfy the requirements fully, even where the necessary intention of the testator is present.3 However, in some jurisdictions, the courts may dispense with the requirement of strict compliance with the formalities.4

Notes 1 See generally [395-175]-[395-225]. 2 The formalities operate to protect the testators intention against forgery, fraud (see [395-220]), impropriety and undue influence (see [395-210]). They also provide reliable evidence of testamentary intent where the expression of such intent may have been made many years prior to the testators demise. As to the formal requirements see [395-285]-[395-300]. See also In the Will of Lambe [1972] 2 NSWLR 273; Re Harry (1996) 106 NTR 1 (will made by deceased in South Australia and valid in that State pursuant to (SA) Wills Act 1936 s 12(2) admissible to probate in Northern Territory where deceased normally resided).

As to wills complying with the formal requirements of foreign jurisdictions see conflict of laws [851725].

3 Instances may arise where the genuine intention of the testator has been defeated by a failure to observe the formal requirements: see, for example, Re Colling (decd); Lawson v Von Winckler [1972] 3 All ER 729; [1972] 1 WLR 1440. However, there are other cases where adherence to the formal requirements, such as the requirement for, and position of, the testators signature on a testamentary instrument (see [395-315], [395-320]), has been less strictly enforced: see In the Goods of Hornby (decd) [1946] P 171; [1946] 2 All ER 150. 4 See [395-300]. The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-285] Elements of formal validity All wills, other than privileged wills,1 must comply with the following requirements in order to be valid:2 (1) the will must be in writing;3 (2) the will must be executed by the testator or by another person in the presence, and at the direction, of the testator;4 (3) the will must be executed, or the signature acknowledged by, the testator in the presence of two or more witnesses present at the same time;5 and (4) the will must be attested to by each witness to the will in the presence of the testator.6 The requirements as to the position of the testators signature differ according to the jurisdiction.7

Notes 1 As to privileged wills see [395-520]-[395-540]. 2 (ACT) Wills Act 1968 s 9 (NT) Wills Act 2000 s 8

(NSW) Wills, Probate and Administration Act 1898 s 7; (NSW) Succession Act 2006 (opn on proc) s6

(QLD) Succession Act 1981 ss 9, 10

(SA) Wills Act 1936 s 8

(TAS) Wills Act 1992 s 10

(VIC) Wills Act 1997 s 7

(WA) Wills Act 1970 s 8.

3 As to the requirement of writing see [395-305]. 4 As to execution see [395-310]-[395-335]. 5 As to witnesses see [395-375]-[395-385]. As to acknowledgment see [395-340]. 6 As to attestation see [395-345]-[395-370]. 7 As to the positioning of the testators signature see [395-315], [395-320]. The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-290] Dating the will It is not an essential element of formal validity that wills be dated.1 The following circumstances may raise questions as to the date of execution but will not necessarily invalidate the will:2 (1) internal inconsistency between dates indicating the time of execution; (2)

errors as to the correct date of execution; and (3) omission of a date from the will. The court may call for evidence as to the date of due execution of the will in such circumstances.3 The date of execution of a will is also relevant in the context of revocation, alterations, republication and revival and may also be significant where construction of the will requires an assessment of the meaning of certain words as at a particular time.4

Testamentary statutes may also include provisions for formal validity under conflict of laws rules, such as choice of law,5 wills made on board vessels and aircraft6 and the effect of a change of domicile.7

Notes 1 Re Pickering [1936] QWN 16; In the Will of Turner (1879) 5 VLR (IP & M) 71; Re Young (decd) [1969] NZLR 454; Re Griffiths (decd) [1955] NZLR 127. Regardless of a date not being essential to the validity of a will, best practice requires the inclusion of the date of execution, preferably with each signature.

2 Re Pickering [1936] QWN 16; In the Will of Turner (1879) 5 VLR (IP & M) 71; Re Young (decd) [1969] NZLR 454; Re Griffiths (decd) [1955] NZLR 127. 3 In the Will of Turner (1879) 5 VLR (IP & M) 71. 4 As to revocation see [395-595]-[395-645]. As to alterations see [395-700], [395-705]. As to republication see [395-760]-[395-785]. As to revival see [395-840]-[395-850]. As to the relevance of the date of execution in applying the usual meaning rule of construction see [395-925]. In addition, the fact that a will is undated may indicate that the testator did not intend it to have immediate testamentary effect: see Corbett v Newey [1996] 2 All ER 914. As to testamentary intention see [395-195]. 5 (ACT) Wills Act 1968 s 15B (NT) Wills Act 2000 ss 46, 47

(NSW) Wills, Probate and Administration Act 1898 Pt 1A; (NSW) Succession Act 2006 (opn on proc) Pt 2.4

(QLD) Succession Act 1981 Div 6

(SA) Wills Act 1936 Pt 3

(TAS) Wills Act 1992 Pt 3

(VIC) Wills Act 1997 Div 6

(WA) Wills Act 1970 Pt VII.

6 (ACT) Wills Act 1968 s 15D (NT) Wills Act 2000 s 46(2)

(NSW) Wills, Probate and Administration Act 1898 s 32D(1)(a); (NSW) Succession Act 2006 (opn on proc) s 48(2)(a)

(QLD) Succession Act 1981 s 33T(2)(a)

(SA) Wills Act 1936 s 25C(a)

(TAS) Wills Act 1992 s 30(1)(a)

(VIC) Wills Act 1997 s 17(2)(a)

(WA) Wills Act 1970 s 22(a).

7 (ACT) Wills Act 1968 s 15G (NT) Wills Act 2000 s 46(1)(b)

(NSW) Wills, Probate and Administration Act 1898 s 32C(b); (NSW) Succession Act 2006 (opn on proc) s 48(1)(b)

(QLD) Succession Act 1981 s 33T(1)(b)

(SA) Wills Act 1936 s 23

(TAS) Wills Act 1992 s 29

(VIC) Wills Act 1997 s 17(1)(b)

(WA) Wills Act 1970 s 24.

The paragraph below is current to 20 September 2007

[395-295] Presumption of due execution The onus of proof of due execution lies with the party propounding the will.1 However, where a will contains an accurate attestation clause2 or appears on its face to be valid, there is a rebuttable3 presumption that it has been validly executed.4 The presumption does not shift the onus of proof as it only arises where direct evidence of validity is not available or has been rejected.5 The presumption applies where the witnesses cannot recall signing the will,6 are deceased7 or cannot be traced,8 or where the will has no attestation clause or has only an incomplete attestation on the face of the will.9 The presumption operates most strongly where the will contains an attestation clause and is regular in form.10 Where the will is of recent origin, the presumption is not so strong, as direct evidence would be expected to be more readily available to establish the wills validity.11 Where there is a complete lack of execution,12 or the surrounding circumstances oppose a finding that the will was validly executed, the presumption does not apply.13

Where both attesting witnesses are available to give evidence, but their evidence as to the circumstances surrounding execution conflicts, the will is presumed to have been validly executed provided that the evidence against the will having been duly executed is rejected.14 In dealing with conflicting testimony, the court should assess the evidence and determine the facts prior to application of the presumption; the presumption does not determine what evidence will be accepted and what should be rejected.15

Notes 1 Gair v Bowers (1909) 9 CLR 510 at 521; [1910] VLR 538; (1909) 15 ALR 494 per Griffith CJ. 2 As to attestation clauses see [395-350]. 3 The presumption may be rebutted by clear evidence given by the attesting witnesses: Croft v Croft (1865) 4 Sw & Tr 10; 11 LT 781; 164 ER 1418; Glover v Smith (1886) 57 LT 60; Wyatt v Berry [1893] P 5; (1893) 68 LT 416; Pilkington v Gray [1899] AC 401; Gair v Bowers (1909) 9 CLR 510; [1910] VLR 538; (1909) 15 ALR 494; Re Bladen [1952] VLR 82; [1952] ALR 326; Re McMahen (decd) [1955] VLR 173; Smith v Smith (1985) 80 FLR 444, SC(ACT). Compare Dayman v Dayman (1894) 71 LT 699 (presumption of due execution prevailed even where both attesting

witnesses gave evidence to contrary); Neal v Denston (1932) 147 LT 460 (presumption prevailed where witnesses evidence doubted); Wilson v Beddard (1841) 12 Sim 28 at 34; 59 ER 1041 at 1043 per Shadwell VC (evidence by witnesses denying a solemn act, such as execution and attestation of a will, should be given only the slightest weight); Re Ferreira [1927] VLR 90; [1927] ALR 87 (presumption prevailed where document expressed as a will and signed by testator and witnesses but without formal attestation clause). Contrast Wright v Rogers (1869) LR 1 P & D 678 (where both witnesses gave evidence that will was not duly executed and no other evidence was offered to refute this, there were no grounds for court to find the will was duly executed); Re VereWardale (decd); Vere-Wardale v Johnson [1949] P 395; [1949] 2 All ER 250; In the Estate of Strong (decd); Strong v Hadden [1915] P 211. 4 Re Bladen [1952] VLR 82; [1952] ALR 326; In the Will of Hutchins (1893) 5 ALR 207; 14 ALT 223; In the Goods of Buckley (1899) 24 VLR 923; In the Will of Moriarty (decd) [1956] VLR 400; [1956] ALR 934; In the Estate of Musgrove; Davis v Mayhew [1927] P 264; (1927) 137 LT 612, CA; Byles v Cox (1896) 74 LT 222; Re Ferreira [1927] VLR 90; [1927] ALR 87; Re Denning (decd); Harnett v Elliott [1958] 2 All ER 1; [1958] 1 WLR 462. 5 Re Gramp (decd); Finck v Gramp [1952] SASR 12; Re Bladen [1952] VLR 82; [1952] ALR 326; Harris v Knight (1890) 15 PD 170 at 179-80; 62 LT 507; 6 TLR 234 per Lindley LJ, CA. See also In the Estate of Early [1980] IR 223. 6 Re Bladen [1952] VLR 82; [1952] ALR 326; Woodhouse v Balfour (1887) 13 PD 2; 58 LT 59; Re Webb (decd); Smith v Johnston [1964] 2 All ER 91; [1964] 1 WLR 509. 7 Where there is a regular attestation clause but the witnesses are deceased, the presumption of due execution is available: see Burgoyne v Showler (1844) 1 Rob Eccl 5; 163 ER 945; Byles v Cox (1896) 74 LT 222; In the Goods of Thomas (decd) (1859) 1 Sw & Tr 255; 164 ER 717; Re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312; Re Spain (1915) 31 TLR 435. Where there is no attestation clause, the presumption may still be available if there is no evidence available as to the circumstances surrounding the execution of the will: see Estate of Robertson (decd) [1964] NSWR 1087; In the Will of Hutchins (1893) 5 ALR 207; 14 ALT 223; In the Goods of Buckley (1899) 24 VLR 923; Re Howatson [1935] ALR 391; Re Denning (decd); Harnett v Elliott [1958] 2 All ER 1; [1958] 1 WLR 462 (will without attestation clause admitted to probate after two unexplained names on back of will presumed to have been placed there for purpose of attesting the will). See also In the Goods of Peverett [1902] P 205; Trott v Skidmore (1860) 2 Sw & Tr 12; 164 ER 894; Re Malins (1887) 19 LR Ir 231; In the Estate of Strong (decd); Strong v Hadden [1915] P 211; Rolleston v Sinclair [1924] 2 IR 157 (no evidence of due execution); Scarff v Scarff [1927] IR 13 (sufficient evidence of due execution). 8 In the Will of Kimbell [1969] 1 NSWR 414; (1968) 88 WN (Pt 1) (NSW) 614 (presumption applied to admit will to probate where testator had executed will by a mark and witness unidentifiable); In the Will of Hutchins (1893) 5 ALR 207; 14 ALT 223. 9 Re Bladen [1952] VLR 82; [1952] ALR 326. 10 See, for example, In the Estate of Musgrove; Davis v Mayhew [1927] P 264; (1927) 137 LT 612, CA; Re McMahen (decd) [1955] VLR 173; Gair v Bowers (1909) 9 CLR 510; [1910] VLR 538; (1909) 15 ALR 494; Smith v Smith (1985) 80 FLR 444, SC(ACT); In the Estate of Bercovitz; Canning v Enever [1961] 2 All ER 481; [1961] 1 WLR 892 (affirmed In the Estate of Bercovitz; Canning v Enever [1962] 1 All ER 552; [1962] 1 WLR 321, CA); In the Estate of Jackson (1938) 55 WN (NSW) 71. 11 Estate of Robertson [1964] NSWR 1087. 12 In the Estate of Jackson (1938) 55 WN (NSW) 71. 13 Re Lucas (decd) [1966] VR 267.

14 Re Bladen [1952] VLR 82; [1952] ALR 326. 15 Re Bladen [1952] VLR 82 at 87; [1952] ALR 326 per Scholl J (presumption does not affect question of whether or not particular evidence should be accepted or rejected; it only arises after that question has been resolved and in this way the presumption is to be distinguished from an inference of fact: in deciding whether to accept or reject other evidence tendered to rebut an ordinary rebuttable presumption of law, the presumption is not to be weighed against it the other evidence, if accepted, may rebut the presumption, but the presumption cannot be used to induce the rejection of the other evidence). See also In the Will of Broomhead [1947] VLR 319 at 321; [1947] ALR 359 per Herring CJ; In the Will of Morgan [1950] VLR 335 at 339; [1950] ALR 729 per Deane J. The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-300] Judicial dispensing powers In all jurisdictions, judicial dispensing powers allow the courts to admit wills to probate despite a failure to comply with the formal requirements for execution of a valid will.1 In all jurisdictions, the judicial dispensing powers focus on the intention of the testator.2 In the Australian Capital Territory, New South Wales and Queensland, a document purporting to represent the deceaseds testamentary intentions constitutes a valid will even though it is not formally executed if the court is satisfied that the deceased intended the document to constitute his or her will or an amendment or revocation of his or her will.3 The standard of proof is the balance of probabilities.4 In addition to examining the document itself, the court may have regard to any other evidence relating to the manner of execution of the document or the deceaseds testamentary intentions, including statements made by the deceased.5

In South Australia, if the court is satisfied that a document expresses testamentary intentions of a deceased person, and the deceased intended the document to constitute his or her will, it will be admitted to probate as a will of the deceased even though it has not been executed in accordance with the formal requirements.6 If the court is satisfied that an informal document expresses the deceaseds intention to revoke a document that might otherwise have been admitted to probate as the deceaseds will, the latter document is not to be admitted to probate as the deceaseds will.7

In the Northern Territory, Tasmania and Western Australia, a document purporting to represent the deceaseds testamentary intentions, notwithstanding that it does not comply with the formal requirements for executing a will, may be deemed to be the deceaseds will if the court is satisfied that the person intended the document to constitute his or her will.8 In the Northern Territory and Tasmania, the court, in addition to inspection of the document, may have regard to any other evidence relating to the manner of execution or the testamentary intentions of the deceased, including evidence of statements made by him or her.9

In most jurisdictions, the judicial dispensing powers may be applied to parts of a document10 and must be liberally interpreted.11 The primary issue is whether the deceased intended the document to be the expression of his or her testamentary intentions.12 The greater the departure from compliance with the formal requirements, the more difficult it is to satisfy the court that the deceased intended the instrument to be his or her will.13 Wills admitted to probate under the judicial dispensing powers include wills which have not been properly attested14 or are unsigned.15 A document which is merely deliberative will not be admitted to probate under the dispensing powers.16

Where the exercise of the dispensing powers are not appropriate, it may be possible to have the instrument admitted under a power of rectification.17

Courts have exercised their dispensing powers in the following circumstances:

(1) handwritten will, two witnesses not present at the same time to witness the signature of the deceased on the will;18 (2) holograph will on a single sheet of paper folded three ways with the testators and witnessess signatures on one of the three folds;19 (3) document handwritten and signed but amended by the deceased;20 (4) document purporting to amend a will which was also a suicide note;21 (5) draft will altered and signed but not witnessed;22 (6) will lacking witnesses;23 (7) lost will; 24 (8) instructions plus a draft will in accordance with those instructions;25 (9) list of property plus photographs of that property;26 (10)

handwritten will, undated and unsigned;27 (11) lost will and copy not executed;28 (12) document making changes to a will but not witnessed by two witnesses at the same time;29 (13) copy will with handwritten amendments not witnessed;30 (14) handwritten note listing bequests plus a card for a medical appointment with amendments found together with a formal will;31 (15) two sheets of paper drafted by a solicitor, unattached, signed and witnessed but only one sheet returned to the solicitor;32 (16) will instructions;33 and (17) will expressly and unconditionally revoked by a second will which was then destroyed.34

Courts have refused to exercise their dispensing powers in the following circumstances:

(1) will instructions given to a solicitor two hours before death;35 (2) document neither signed nor dated because there existed no intention by the testator for the document to operate from the time written;36 (3) document headed Statutory Declaration drafted by wife of deceased;37 (4) a draft will not executed and not seen by the testator;38 (5) draft will prepared by a solicitor but neither seen nor authenticated by the testator;39

(6) will on computer, unsigned;40 (7) unexecuted will;41 (8) will prepared from will kit;42 and (9) handwritten notes made by solicitor on executed document not evidence of testamentary intention.43

Notes 1 (ACT) Wills Act 1968 s 11A (NT) Wills Act 2000 s 10

(NSW) Wills, Probate and Administration Act 1898 s 18A; Succession Act 2006 (opn on proc) s 8

(QLD) Succession Act 1981 s 18

(SA) Wills Act 1936 s 12(2)

(TAS) Wills Act 1992 s 26

(VIC) Wills Act 1997 s 9

(WA) Wills Act 1970 ss 9, 34. (WA) Wills Amendment Bill 2006 cl 23 when enacted substitutes a new (WA) Wills Act 1970 s 34.

2 See Vines PE, The Quality of Proof of Intention in the Dispensing Power: Lessons from a Short History (2002) 9(3) Australian Property Law Journal 264. 3 (ACT) Wills Act 1968 s 11A(1) (document or part of document) (NSW) Wills, Probate and Administration Act 1898 s 18A(1); (NSW) Succession Act 2006 (opn on proc) s 8(2)

(QLD) Succession Act 1981 s 18(2).

4 See K Mason and L G Handler, Wills Probate and Administration Service New South Wales, Butterworths, Sydney, 1985 to current (looseleaf), Vol 1, [1070.2], [1070.3]. 5 (ACT) Wills Act 1968 s 11A(2) (NSW) Wills, Probate and Administration Act 1898 s 18A(2); (NSW) Succession Act 2006 (opn on proc) s 8(3)

(QLD) Succession Act 1981 s 18(3).

6 (SA) Wills Act 1936 s 12(2). 7 Ibid s 12 applies to a document whether it came into existence within or outside South Australia: ibid s 12(4). In Victoria, see (VIC) Wills Act 1997 s 9(4). 8 (NT) Wills Act 2000 s 10(2) (TAS) Wills Act 1992 s 26(1) (applies where there is no reasonable doubt that the deceased intended the document to constitute the will, an amendment of such a will, or the revocation of such a will)

(WA) Wills Act 1970 s 34 (applies to informal alterations of a will and informal revocations of a will: ibid ss 35, 36). When enacted (WA) Wills Amendment Bill 2006 cl 23 will substitute (WA) Wills Act 1970 s 32(2) applying to wills, alterations, revocations and revivals.

9 (NT) Wills Act 2000 s 10(3) (TAS) Wills Act 1992 s 26(2).

10 (ACT) Wills Act 1968 s 11A(1) (NT) Wills Act 2000 s 10(2)

(NSW) Succession Act 2006 (opn on proc) s 8(1)

(QLD) Succession Act 1981 s 18(1)

(WA) Wills Act 1970 ss 9, 34. When enacted (WA) Wills Amendment Bill 2006 cl 23 will substitute (WA) Wills Act 1970 s 32(1).

See also In the Estate of Possingham (decd) (1983) 32 SASR 227; In the Estate of Bennett (decd) (1986) 40 SASR 350; Re the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 at 10 per Nicholson J.

11 In the Estate of Graham (decd) (1978) 20 SASR 198 at 202 per Jacobs J; In the Estate of Williams (decd) (1984) 36 SASR 423 at 425 per King CJ. The dispensing provisions have been used in relation to lost wills: Estate of Williams v South Australia (unreported, SC(SA), Bollen J, No 1584/89, 27 June 1989, BC8900323); Whiteley v Clune (No 2); Estate of Whiteley (unreported, SC(NSW), Powell J, No 102594/93, 13 May 1993, BC9301902). 12 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539 per Powell J; In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455 per Mahoney JA, CA(NSW); Re the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1. 13 In the Estate of Graham (decd) (1978) 20 SASR 198; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539-40 per Powell J; Re the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 at 8 per Nicholson J. 14 In the Estate of Graham (decd) (1978) 20 SASR 198; In the Estate of Slavinskyj (decd) (1988) 53 SASR 221; In the Estate of Sheather (unreported, SC(NSW), Powell J, No 108097 of 1991, 9 August 1991, BC9101690); In the Estate of Kelly (1983) 32 SASR 413. 15 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; In the Estate of Williams (decd) (1984) 36 SASR 423. 16 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 543 per Powell J. The court will be reluctant to admit draft wills to probate under the dispensing powers: Baumanis v Praulin (1980) 25 SASR 423; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; In the Estate of Wilson (1991) 24 NSWLR 334. Compare In the Estate of Vauk (decd) (1986) 41 SASR 242; Re the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1. 17 The jurisdiction of the court to rectify a will is extremely limited: see [395-910], [395-955]. 18 Re Deer (decd) [2006] QSC 278; BC200607743. 19 Coyle v Kerwin [2006] QSC 50; BC200601718. 20 Hough v Harris [2004] NSWSC 958; BC200409662. See also In the Estate of masters: Hill v Plummer (1974) 33 NSWLR 446; BC9405178. 21 In the Estate of Kazacos: Ryan v Kazacos (2001) 183 ALR 506; 159 FLR 452; [2001] NSWSC 140; BC200100812. 22 Estate of Lumb: McMillan v Lumb [2005] NSWSC 371; BC200502546. 23 MacKenzie v Osburn [2005] NSWSC 657; BC200504786. 24 Payten v Perpetual Trustee Co [2005] NSWSC 345; BC200502126; Cahill v Rhodes [2002] NSWSC 561; BC200203752. 25 In the Estate of TLB (2005) 94 SASR 450; [2005] SASC 459; BC200510563: testator

committed suicide. 26 In the Estate of Torr (2005) 91 SASR 17; [2005] SASC 49; BC200500238. 27 McFaydyen v Pangaris [2007] SASC 171; BC200703515. 28 McLaren v Norton [2006] WASC 305; BC200610857. 29 Owen v Public Trustee [2006] WASC 276; BC200610272. See also Public Trustee v Cooke [2005] WASC 167; BC200505528: regarding document entitled Codicil to my Last Will and Testament not attested by two witnesses at the same time but witnessed by one of the two at a later date. 30 Perpetual Trustees (WA) Ltd v Gailey [1999] WASC 61; BC9904133. See also Bubko v Zimmerman [2001] VSC 137 regarding a copy will. 31 McDonald v Freston [2002] VSC 177; BC200202485. 32 In the Will of Nolan (unreported, VSC, OBryan J, 34/1994, 12 May 1995, BC9503869). See also, for attachment of sheets of wills, In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193; Lewis v Lewis [1908] P 1; In the Goods of Tiernan [1942] IR 572; Re Little [1960] 1 WLR 494. 33 Fischer v Forman [2003] NSWSC 417; BC200302415. 34 Gellatly v Curtin [2006] WASC 88; BC2006034909. See also Re Ogley (decd): ex parte Public Trustee [2004] WASC 277; BC200409175: regarding instructions signed by testator with solicitor as witness; In the Estate of Treloar (1984) 36 SASR 41. 35 Re Estate of Munro: Macey v Finch [2002] NSWSC 933; BC200205949; Cloonan v Allingham: Estate of Pugh (unreported, NSWSC, Needham J, 103129, 14 December 1990, BC9001611): testamentary intentions not fixed and final. 36 OKeeffe v Carlysle: Re Garvan [2006] NSWSC 93; BC200601057. 37 Pahlow-Silady v Siladi (unreported, NSWCA, Gleeson CJ, Mason P, Powell JA, 40164/1995, 22 April 1997, BC9701391) on appeal from Pahlow-Silady v Siladi (unreported, NSWSC, Santow J, PD1091, 1993, 21 November 1994, BC9403530). See also Pahlow-Silady v Siladi [1999] NSWSC 890; BC9902853. 38 Re Schwartzkopff (2005) 94 SASR 465; [2006] SASC 131; BC200603198. 39 Re Estate of Perriman (decd) [2003] WASC 191; BC200305816: although court was satisified that the testator would have signed the will drafted in accordance with the instructions given to a solicitor that that was not enough to prove, the testator intended that draft to be his will as he had neither seen nor authenticated the document. 40 Re Trethewey (2002) 4 VR 406; [2002] VSC 83; BC200201109. See also Harrison v van Ristell [2004] VSC 163; BC200402720: regarding will on a floppy computer disk but application to admit withdrawn. 41 Grigg v Myles [2005] WASC 224; BC200508862. 42 The Estate of Hines [1999] WASC 111; BC9904548. See also Public Trustee v Murphy [2004] WASC 191; BC200405729: standard form will kit written and signed by the testator. 43 Re Estate of Miller (decd) [2002] SASC 358; BC200206473. See also Australian Executor Trustees Ltd v Casanova [2005] SASC 93; BC200501264.

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(B) Writing The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-305] Writing required All wills, other than privileged wills, 1 must be in writing, as defined in the Acts Interpretation Acts of the various jurisdictions.2 The definitions of writing are not restricted to handwriting, but include any mode of representing or reproducing words in visible

form and extend to typing, printing, photography, lithography and computer reproduction.3 The writing in question need not appear on paper but may be on any medium,4 although where the material on which the writing appears is extremely bulky or immobile there may be difficulties filing the will for probate.5 The writing need not be continuous; blank or interposed spaces on the face of a will do not necessarily invalidate it.6 Where forms with spaces to be filled in by the testator are used, the will is not invalidated if the spaces are not completely filled in and gaps are left in the will as a result.7 Where wills prepared in pen have pencil markings interposed with the ink, and the ink makes sense by itself, the pencil markings may be excluded from the grant of probate on the ground that they are merely deliberative and therefore lacking in testamentary effect.8 There is no requirement that the writing be in English and wills in foreign languages may be admitted to probate.9 Wills reduced to secret codes may be admitted to probate provided extrinsic evidence is available to the court whereby the code may be deciphered.10 Failure to comply with formal requirements relating to writing may be overcome by current dispensing powers available to courts.11 Notes 1 As to privileged wills see [395-520]-[395-540].2 As to the legislative provisions requiring writing see note 3, below. As to the Acts Interpretations Acts generally see statutes. 3 (ACT) Legislation Act 2001 Dictionary (definition of writing includes any way of representing or reproducing words in visible form) (NT) Interpretation Act 1978 s 26 (NSW) Interpretation Act 1987 s 21 (writing includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form) (QLD) Acts Interpretation Act 1954 s 36 (writing includes any mode of representing or reproducing words in a visible form) (SA) Acts Interpretation Act 1915 s 4(1) (writing includes any visible form in which words, figures, drawings or symbols may be reproduced or represented) (TAS) Acts Interpretation Act 1931 s 24(b) (writing shall be construed as including references to any mode of representing or reproducing words, figures, or symbols in a visible form) (WA) Interpretation Act 1984 s 5 (writing and expressions referring to writing include printing, photography, photocopying, lithography, typewriting and any other modes of representing or reproducing words in visible form). See also Re Trethewy (2002) 4 VR 406; [2002] VSC 83; BC200201109 ; Harrison v van Ristell [2004] VSC 163; BC200402720 ; In the Will of Black (1888) 5 WN (NSW) 36; Whiteley v Clune (No 2); Estate of Whiteley (unreported, SC(NSW), Powell J, 102594 of 1993, 13 May 1993, BC9301902); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 ; Re Estate of Madzay (unreported, SC(NSW), Powell J, No 114132/91, 25 October 1991, BC9101475). 4 See, for example, Hudson v Barnes (1926) 43 TLR 71 (writing on an empty egg shell).5 In the Estate of Slavinskyj (decd) (1988) 53 SASR 221 (writing produced on wall of testators house; lodgment effected in registry by means of a photograph and accompanying affidavit).6 In the Goods of Wotton (1874) LR 3 P & D 159.7 In the Goods of Corder (1848) 1 Rob Eccl 669; 163

ER 1173 (gaps not required to be crossed out); Corneby v Gibbons (1849) 1 Rob Eccl 705; 163 ER 1185 (gaps not required to be crossed out); In the Goods of Gore (1843) 3 Curt 758; 163 ER 892 (whole blank page allowed).8 In the Goods of Adams (1872) LR 2 P & D 367; 26 LT 526 (where the more permanent form of writing makes sense alone, there is a rebuttable presumption that the less permanent form was merely deliberative). Valid wills may also be written entirely in pencil: In the Goods of Usborne (1909) 25 TLR 519. Compare Dougharty v Clark [1902] QWN 69 (wills should be engrossed in ink).9 Re Kleinsang (decd) (1928) 28 SR (NSW) 455; 45 WN (NSW) 123 (probate granted of will in German with English translation attached). As to wills in foreign languages see further conflict of laws [85-1750].10 Kell v Charmer (1856) 23 Beav 195; 53 ER 76 .11 See [395-300].

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(C) Signature The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-310] Signature required In all jurisdictions, wills must be signed by the testator, or by another person in the presence of the testator and at his or her direction.1 The testator may sign his or her name in the usual way,2 but alternative means of signing may be acceptable, including: (1) the specific mark or initials of the testator;3

(2) an expression which is merely descriptive of the testator;4 (3) an assumed name;5 (4) an incorrect name;6 (5) a rubber stamped impression;7 and (6) an ink thumb-print.8 The relevant consideration is whether what is being presented as a signature was written by the testator with the intention that it should operate as a signature and provide authentication of the document as his or her will.9 If another person has guided the testators hand in inscribing the signature, the signature is valid,10 provided that the testator is aware of the guidance and assents to it.11 Where the authenticity of the signature is in question, the court may call upon extrinsic evidence such as other, uncontested samples of the testators signature for comparison and information as to the circumstances under which the will was signed, although the usefulness of opinions from handwriting experts has been queried.12 In the case of an unsigned will, extrinsic evidence may be admitted to determine whether or not the testator intended the unsigned document to take effect as his or her will.13 If the testator is weak and physically incapable of completing the signature, part of his or her usual signature may constitute a valid signature even though it is incomplete.14

The will may be signed by a person other than the testator at the direction, and in the presence, of the testator,15 and where this is done the third party may use either his or her own signature or that of the testator.16 The testators direction to the third party to sign on his or her behalf may be spoken or implied from the testators conduct and the res gestae.17 The testator must be aware that the third party is signing the will and must actually see the delegate sign, although if the testator is blind this requirement will be satisfied if the testator is physically placed so that, if sighted, he or she could have seen the signature being made.18 A person signing on behalf of the testator may also validly sign as an attesting witness.19

Failure to comply with formal requirements relating to signatures may be overcome by current dispensing powers available to courts.20

Notes 1 (ACT) Wills Act 1968 s 9 (NT) Wills Act 2000 s 8

(NSW) Wills, Probate and Administration Act 1898 s 7; (NSW) Succession Act 2006 (opn on proc) s 6(1)(a)

(QLD) Succession Act 1981 s 10(2)

(SA) Wills Act 1936 s 8

(TAS) Wills Act 1992 s 10

(VIC) Wills Act 1997 s 7

(WA) Wills Act 1970 s 8.

The will must be signed after the dispositive provisions have been written: Wood v Smith [1993] Ch 90. The requirements as to the position of the signature on the will vary according to the jurisdiction: see [395-315].

2 In the Will of Seferth (decd) [1956] VLR 382; Re Gibson (decd) [1953] NZLR 122; Re Isherwood [1946] VLR 312; [1946] ALR 289. For a selection of standard form attestation clauses see The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15 Wills Prr 20.850-20.870. 3 In the Will of Kimbell [1969] 1 NSWR 414; (1968) 88 WN (Pt 1) (NSW) 614; In the Estate of Theakston (1956) 74 WN (NSW) 113; Re Male [1934] VLR 318; [1934] ALR 376; In the Estate of Brandon (decd) [1926] NZLR 892; [1926] GLR 309; Re McNamee (1912) 31 NZLR 1007; In the Will of Pugh (1889) 15 VLR 833; In the Will of Harrington (1884) 6 ALT 84; In the Will of Rae (1884) 6 ALT 17; In the Will of Hurd (1883) 9 VLR (IP & M) 23; Re Hammon (1874) 5 AJR 19. See also Re Isherwood [1946] VLR 312; [1946] ALR 289 (testator may print his or her name instead of signing it). 4 In the Estate of Cook (decd); Murrison v Cook [1960] 1 All ER 689; [1960] 1 WLR 353 (testatrix signed herself as your loving mother). 5 Re Sister Albinus [1924] NZLR 880; Re Reddings Goods (1850) 2 Rob Eccl 339; 163 ER 1338. 6 In the Goods of Glover (1847) 10 LTOS 118. 7 Jenkins v Gaisford; In the Goods of Jenkins (decd) (1863) 3 Sw & Tr 93; 8 LT 517; 164 ER 1208. 8 In the Estate of Finn [1935] All ER Rep 419; (1935) 154 LT 242. 9 Re Male [1934] VLR 318 at 320; [1934] ALR 376.

10 Re White [1948] 1 DLR 572; Copeman v Staples (1911) 13 GLR 467; Hay v Simpson (1890) 11 LR (NSW) Eq 109. 11 Copeman v Staples (1911) 13 GLR 467. 12 Sumner v Booth [1974] 2 NSWLR 174; Bassett v McCagh (unreported, SC(WA), Cmr Murray, No 1857 of 1986, 26 April 1989, BC8901121). 13 Re Letcher (decd) (1993) 114 FLR 397, SC(ACT) (unsigned document admitted to probate where extrinsic evidence, including evidence of statements made by deceased, clearly established deceaseds intention that document to operate as her will); In the Estate of Thompson; Laurence v Gorman (unreported, SC(NSW), Simos J, No 5100184/95, 17 November 1995, BC9506746) (clearly established that deceased knew document had to be signed to take effect as her will, but had not signed due to fear that this would hasten her death, although just prior to death she indicated a wish to sign, but had no opportunity to do so; probate refused as court could not be satisfied she intended the unsigned document to take effect as her will). 14 In the Goods of Chalcraft (decd); Chalcraft v Giles [1948] P 222; [1948] 1 All ER 700; Re Male [1934] VLR 318; [1934] ALR 376. Compare Dodd v Lang (unreported, SC(NSW), Needham J, No 35023 of 1988, 20 July 1989, BC8901937) (testator badly injured and physically incapable of signing will although attempt made resulting in no part of a signature but only some grey marks on the paper; will rejected as it could not be shown that testator intended marks to be his signature or part thereof, requirement being that testator must have acknowledged marks as his signature). Note that this case was decided prior to the judicial dispensing powers coming into force in New South Wales: see [395-300]. 15 (ACT) Wills Act 1968 s 9(1)(b) (NT) Wills Act 2000 s 8(1)(a)

(NSW) Wills, Probate and Administration Act 1898 s 7(4); (NSW) Succession Act 2006 (opn on proc) s 6(1)(a)

(QLD) Succession Act 1981 s 10(2)(b) (no requirement that testator be present)

(SA) Wills Act 1936 s 8(a)

(TAS) Wills Act 1992 s 10(a)

(VIC) Wills Act 1997 s 7(1)(a)

(WA) Wills Act 1970 s 8(b).

16 In the Goods of Clark (1839) 2 Curt 329; 163 ER 428; In the Goods of Bailey (1838) 1 Curt 914; 163 ER 316.

17 In the Goods of Marshall (1866) 13 LT 643. Res gestae means facts surrounding or accompanying a transaction which is the subject of legal proceedings: see further evidence [1951475]-[195-1525]. 18 Re ODwyer (1904) 7 GLR 64. 19 In the Goods of Clark (1839) 2 Curt 329; 163 ER 428; In the Goods of Bailey (1838) 1 Curt 914; 163 ER 316. 20 See [395-300]. The paragraph below is current to 20 September 2007

To update legislation see ACL Legislation

For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations

[395-315] Signature at the foot of the will In some jurisdictions, the testator must sign the will at the foot or end of the instrument.1 This requirement is qualified by provisions deeming valid signatures placed at, after, following, under, beside or opposite the end of the will, provided that it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as his or her will.2 Without limiting the generality of this qualification, a will is not invalidated where:3 (1) the signature does not follow immediately after the foot or end of the will;4 (2) there is a blank space between the concluding word or words of the will and the signature;5 (3) the signature appears (a) among the words of the testimonium clause or the attestation clause, (b) following, after or under the attestation clause, whether or not a blank space intervenes between the end of that clause and the signature, or (c) following, after, under or beside the names or one of the names of the witnesses; (4) the signature appears on a side or page or other portion of the paper or papers containing the will

on which no clause, paragraph or dispositive part of the will is written above the signature;6 (5) there appears to be sufficient space for the signature to have been placed on or at the bottom of the preceding side, page or other part of the same paper as that on which the will appears;7 and (6) the will is a holograph will on a single sheet of paper folded three ways with the testators and witnesses signatures on one of the three folds.8 However, the signature of a testator on the will does not operate to give effect to any disposition or direction that appears underneath or follows that signature or is inserted in the will after that signature is made.9 In the Australian Capital Territory and Queensland, the provisions deeming misplaced signatures to be valid apply also to the signature of another person signing the will on behalf, and at the direction of, the testator.10

In other jurisdictions, there is no requirement that the signature appear at the foot or end of the will and signatures appearing elsewhere are valid provided that it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will.11

Failure to comply with formal requirements relating to writing may be overcome by current dispensing powers available to courts.12

Notes 1 (ACT) Wills Act 1968 s 9(1)(b) (NT) Wills Act 1938 (repealed) s 8(a) (note that this only applies to wills made prior to the commencement of the (NT) Wills Act 2000; for wills made after the commencement of the new Act, the signature of the testator is not required to be made at the foot of the will: (NT) Wills Act 2000 s 8(3))

(NSW) Succession Act 2006 (opn on proc) s 6(2) (it is not essential that the signature be at the foot of the will)

(QLD) Succession Act 1981 ss 9, 10(6) (signatures need not be at the foot of the will)

(TAS) Wills Act 1992 s 10(a)

(VIC) Wills Act 1958 (repealed) s 7 (note that this only applies to wills made prior to the commencement of the (VIC) Wills Act 1997; for wills made after the commencement of the new Act,

the signature of the testator is not required to be made at the foot of the will: (VIC) Wills Act 1997 s 7(1)(b)).

(WA) Wills Act 1970 s 8(b).

For the position in the other jurisdictions see note 11 below.

2 (ACT) Wills Act 1968 s 10(1) (NT) Wills Act 1938 (repealed) s 9(1) (as to the application of the (NT) Wills Act 2000 see note 1 above)

(NSW) Succession Act 2006 (opn on proc) s 6(2)

(QLD) Succession Act 1981 s 10(1), 10(7)

(TAS) Wills Act 1992 s 11(1)

(VIC) Wills Act 1958 (repealed) s 8 (as to the application of the (VIC) Wills Act 1997 see note 1 above)

(WA) Wills Act 1970 s 8(b).

See also Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291; In the Goods of Woodley (decd) (1864) 3 Sw & Tr 429; 164 ER 1341 (will signed across last two lines); Trott v Skidmore (1860) 2 Sw & Tr 12; 164 ER 894 (testators name appearing as last word of holograph will a valid signature); Lewis v Lewis [1908] P 1 (testators name appearing as last word of holograph will a valid signature); In the Goods of Wright (decd) (1865) 4 Sw & Tr 35; 164 ER 1428 (testator signed across third page of sheet of notepaper); In the Goods of Jones (decd) (1865) 4 Sw & Tr 1; 164 ER 1414 (signature beside attestation clause); In the Goods of Williams (1865) LR 1 P & D 4 (signature opposite last words of will); In the Goods of Coombs (1866) LR 1 P & D 302; In the Goods of Ainsworth (1870) LR 2 P & D 151; In the Goods of Stoakes (1874) 31 LT 552; In the Estate of Roberts (decd) [1934] P 102 (signature in margin). As to signatures deemed to be at the foot of the will see [395-320].

3 (ACT) Wills Act 1968 s 10(2) (NT) Wills Act 1938 (repealed) s 9(2) (there are no equivalent provisions in the (NT) Wills Act 2000, applicable to wills made after the commencement of that Act)

(QLD) Succession Act 1981 s 10(2)

(TAS) Wills Act 1992 s 11(2)

(VIC) Wills Act 1958 (repealed) s 8(a)-(e) (there are no equivalent provisions in the (VIC) Wills Act 1997, applicable to wills made after the commencement of that Act).

4 See Page v Donovan (1857) 3 Jur NS 220; 164 ER 576 (notarial certificate intervened). 5 See In the Goods of Fuller [1892] P 377; In the Goods of Williams (1865) LR 1 P & D 4; Re Little; Foster v Cooper [1960] 1 All ER 387; [1960] 1 WLR 495. 6 See In the Goods of Williams (1865) LR 1 P & D 4; Hunt v Hunt (1866) LR 1 P & D 209. 7 See In the Goods of Williams (1865) LR 1 P & D 4; Hunt v Hunt (1866) LR 1 P & D 209; In the Goods of Archer (1871) LR 2 P & D 252. 8 Coyle v Kerwin [2006] QSC 50; BC200601718. 9 (ACT) Wills Act 1968 s 10(3) (NT) Wills Act 1938 (repealed) s 9(3) (there are no equivalent provisions in the (NT) Wills Act 2000, applicable to wills made after the commencement of that Act)

(QLD) Succession Act 1981 s 10(3)

(TAS) Wills Act 1992 s 11(3)

(VIC) Wills Act 1958 (repealed) s 8 (there are no equivalent provisions in the (VIC) Wills Act 1997, applicable to wills made after the commencement of that Act).

As to the circumstances in which writing below the signature may be deemed to be above it see [395-325]. As to attestation of a will following signature see [395-365].

10 (ACT) Wills Act 1968 s 10(4) (NSW) Wills, Probate and Administration Act 1898 s 7(4).

(QLD) Succession Act 1981 s 10(6).

As to the signing of the will by a person other than the testator see [395-310].

11 (NT) Wills Act 2000 s 8(3) (however, as to wills made prior to the commencement of this Act see note 1 above) (NSW) Wills, Probate and Administration Act 1898 s 7(1)(c)

(SA) Wills Act 1936 s 8(b)

(VIC) Wills Act 1997 s 7(1)(b) (however, as to wills made prior to the commencement of this Act see note 1 above)

(WA) Wills Act 1970 s 8(b).

12 See [395-300]. The paragraph below is current to 20 September 2007

[395-320] Signature in another place Generally, the signature on a will must be at the foot or end of the will.1 However, this need not necessarily be the physical foot or end of the will and there are a variety of circumstances in which signatures appearing elsewhere may be valid, including: (1) a signature extending into the margin due to insufficient space being available at the end of a will (even where the signature appears in a position that is perpendicular or physically opposite the top or middle of the page);2 or (2) a signature appearing in an oblong box drawn halfway down the right hand side of the will.3 Where a testator signs at the beginning of the will or in the opening clause, this is not normally a valid execution.4 Similarly, there is not sufficient execution where the testator has signed across the middle of the will.5

Where a signature is placed on the back of a page of a will, there is a question as to whether, by writing his or her name on the back of the page, the testator intended to execute the will or whether this was merely intended to be a label for the document.6 In some cases, extrinsic evidence had been admitted to establish that the signature was in fact intended to execute the document as the testators will.7 In other cases, such signatures have been held to be invalid on the ground that it does not appear on the face of the will that the testator intended by the signature to execute the

will.8 However, extrinsic evidence has been admitted to determine whether or not the back of the page may be construed as being part of the face of the will for the purpose of determining if the testator intended to execute the will.9

In some cases, where the will is not signed in the usual way, the testators name in the attestation clause may be treated as a signature in the absence of evidence to the contrary, provided it is possible to draw the inference that the testator intended the name to be a valid signature operating to give effect to the provisions of the will.10 However, if a rival signature appears on the will, it is more difficult to draw such an inference.11

Failure to comply with formal requirements relating to writing may be overcome by current dispensing powers available to courts.12

Notes 1 See [395-315]. 2 In the Estate of Roberts (decd) [1934] P 102; In the Will of Mathew [1906] VLR 531; (1906) 12 ALR 417; In the Will of Everingham (1900) 21 LR (NSW) B & P 15. See also Re Dyer (1891) 7 WN (NSW) 97. 3 In the Goods of Hornby (decd) [1946] P 171; [1946] 2 All ER 150. 4 Re Beadle (decd); Mayers v Beadle [1974] 1 All ER 493; [1974] 1 WLR 417; In the Goods of Harris (decd); Murray v Everard [1952] P 319; [1952] 2 All ER 409; In the Will of Gallagher [1945] QWN 41 (probate granted, subject to requirements of the registrar); Re Stalman (1931) 145 LT 339; In the Estate of Roffe (1920) 20 SR (NSW) 632. 5 Royle v Harris [1895] P 163; Margary v Robinson (1886) 12 PD 8; 57 LT 281; In the Goods of Dilkes (1874) LR 3 P & D 164; [1874-80] All ER Rep Ext 1968; (1874) LT 305; In the Will of Pople (1874) 5 AJR 80. 6 In the Goods of Campbell (decd) (1863) 2 W & W (IE & M) 119; In the Will of Robinson [1944] QWN 50; Re Eagelstone (decd) [1950] SASR 257. 7 In the Goods of Campbell (decd) (1863) 2 W & W (IE & M) 119; In the Will of Robinson [1944] QWN 50; Re Eagelstone (decd) [1950] SASR 257. 8 In the Will of Kirton (1962) 79 WN (NSW) 763; Re Morgan [1931] VLR 191; [1931] ALR 150; Re Middlebrook (decd) (1928) 29 SR (NSW) 217; 46 WN (NSW) 44; Re Dytrych [1928] VLR 144. 9 In this way the conflicting authorities may be reconciled: see In the Will of Spence (1969) 89 WN (Pt 1) (NSW) 641 (extrinsic evidence admitted to determine what should be treated as face of will, on basis of which it was determined that testator considered back of page to be part of will and that by putting his signature there he intended to execute will). 10 This construction satisfies the requirement that the intention be apparent on the face of the will: see Re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312; In the Will of Seferth (decd) [1956] VLR 382 at 387 per Smith J; Re Gibson (decd) [1953] NZLR 122; Re Isherwood [1946] VLR 312; [1946] ALR 289; Doggett v Lenehan [1926] St R Qd 84; In the Will of Meikle (1899) 25 VLR 309.

11 In the Will of Seferth (decd) [1956] VLR 382 at 387 per Smith J. 12 See [395-300]. The paragraph below is current to 20 September 2007

[395-325] Writing after the signature Writing that appears below the signature of a will may, in certain circumstances, be regarded as preceding it so that, notionally, the requirement that the signature follow the body of the will is satisfied.1 Such a conclusion might be reached on the basis of the mode of writing or the contextual flow,2 or where the testator has used asterisks or some other means of interpolation, including use of the word over, PTO or something similar, to indicate where material following the signature should be incorporated into the main body of the will.3 Words interpolated in the writing preceding the testators signature, even though appearing after it, form part of the will because they should be read in the place at which the testator intended that they should be read.4 Where the court is satisfied on the basis of admissible evidence that the material appearing after the signature was intended to form a part of the main body of the will preceding the signature, that it was written prior to execution and that it was intended by the testator to be authenticated by the signature, the material below the signature may be admitted to probate.5

Where writing appears below the signature, the will may be admitted to probate if by some physical folding or manipulation of the paper upon which it is written the signature can be shown to be at the foot or end of the will,6 provided that the folding or manipulation in question occurred at the time the testator signed the will, so that the court is satisfied that the testator intended the signature to be at what he or she regarded as the foot or end of the will.7 Where a sentence on the same page as the testators signature continues on and is completed below the signature, and it is shown that the sentence was completed prior to the will having been signed, the complete sentence may be admitted to probate.8

The question of whether writing after the signature may validly be incorporated in the will is a matter of construction.9 Matters such as the natural sequence of the written clauses, the handwriting and the ink indicate the continuity of later pages with earlier pages, so that the pages may be construed as forming part of the one document.10

As a general rule, where the signature cannot be deemed to be at the foot or end of the will,11 no part of the document in question will be admitted to probate.12 Where part of the will appearing after the signature cannot be deemed to precede the signature, the court will not admit to probate the part appearing above the signature to the exclusion of the part below, on the basis that the whole of the instrument was intended by the testator as his or her will and admitting part only of the document would contradict that intention.13 Exceptions to this rule include where:

(1) the writing above the signature can be shown to have existed before the subsequent writing, execution and signature by the testator;14 (2)

the writing after the signature can be characterised as purely non-dispositive or administrative;15 or (3) the writing merely repeats parts of the will preceding the signature and is therefore superfluous.16

Failure to comply with formal requirements relating to writing may be overcome by current dispensing powers available to courts.17

Notes 1 In the Will of Smith [1965] Qd R 177; In the Will of Witts [1962] NSWR 1045; (1961) 79 WN (NSW) 382; Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291; In the Goods of Kimpton (decd) (1864) 3 Sw & Tr 427 at 428-9; 164 ER 1340 at 1341 per Sir J P Wilde. As to the requirement that the signature follow the body of the will see [395-315]. 2 In the Goods of Kimpton (decd) (1864) 3 Sw & Tr 427; 164 ER 1340; In the Goods of Ainsworth (1870) LR 2 P & D 151; In the Goods of Wilkinson (1881) 6 PD 100; In the Will of Plain (1927) 27 SR (NSW) 241; 44 WN (NSW) 66; In the Will of Witts [1962] NSWR 1045; (1961) 79 WN (NSW) 382; In the Will of Smith [1965] Qd R 177. 3 In the Goods of Birt (1871) LR 2 P & D 214; In the Goods of Greenwood [1892] P 7; (1891) 66 LT 61; Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291; In the Will of Hill (1900) 16 WN (NSW) 137. As to wills on more than one page see [395-330]. 4 In the Will of Witts [1962] NSWR 1045; (1961) 79 WN (NSW) 382; In the Will of Moroney (1928) 28 SR (NSW) 553; 45 WN (NSW) 147; Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291; In the Will of Donovan (1915) 32 WN (NSW) 100. 5 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403 at 419; [1934] ALR 291; In the Goods of Birt (1871) LR 2 P & D 214 at 215 per Lord Penzance. 6 In the Estate of Bucknall [1965] SASR 276; Re Brown [1948] QWN 25; In the Estate of Long (decd) [1936] P 166; [1936] 1 All ER 435; (1936) 154 LT 469; In the Goods of Smith [1931] P 225; In the Will of Cohen (1929) 29 SR (NSW) 196; In the Will of Moroney (1928) 28 SR (NSW) 553 at 556; 45 WN (NSW) 147 per Harvey CJ in Eq; In the Will of Plain (1927) 27 SR (NSW) 241; 44 WN (NSW) 66; In the Will of Hall [1910] VLR 14; (1910) 16 ALR 15; 31 ALT 132; In the Goods of Wotton (1874) LR 3 P & D 159; In the Goods of Ainsworth (1870) LR 2 P & D 151; In the Goods of Kimpton (decd) (1864) 3 Sw & Tr 427; 164 ER 1340. Compare Re Dytrych [1928] VLR 144. 7 In the Will of Moroney (1928) 28 SR (NSW) 553 at 556; 45 WN (NSW) 147 per Harvey CJ in Eq; In the Will of Spence (1969) 89 WN (Pt 1) (NSW) 641. 8 In the Will of Mitchell (1884) 14 VLR 699. As to incorporation in the context of multiple page wills see [395-330]. 9 In the Will of Witts [1962] NSWR 1045; (1961) 79 WN (NSW) 382; Re Allee (decd); Equity Trustees Executors & Agency Co Ltd v James [1960] VR 481 at 485 per Pape J. 10 Re Allee (decd); Equity Trustees Executors & Agency Co Ltd v James [1960] VR 481; Re Brown [1944] VLR 24; Re White [1938] VLR 184; In the Will of White (1886) 12 VLR 293; In the Will of Witts [1962] NSWR 1045; (1961) 79 WN (NSW) 382. 11 As to when a signature may be deemed to be at the foot or end of a will see [395-315], [395-

320]. 12 Re White [1938] VLR 184; Re Roberts; Roberts v Manning [1928] SASR 175; In the Will of Moroney (1928) 28 SR (NSW) 553; 45 WN (NSW) 147; Re Middlebrook (decd) (1928) 29 SR (NSW) 217; 46 WN (NSW) 44; Lay v Gough (1924) 20 Tas LR 59; In the Estate of Harris (1924) 42 WN (NSW) 25; Re McCarthy (decd) [1922] VLR 216; (1921) 28 ALR 112; 43 ALT 172, SC(VIC), Full Court; In the Will of Hodgson (1922) 39 WN (NSW) 210; In the Will of Huysmans (1895) 21 VLR 576; 2 ALR 3; In the Will of Wyatt (1895) 21 VLR 571. Compare Re Robertson (decd) (1972) 2 SASR 481 (first page admitted to probate); Re Allee (decd); Equity Trustees Executors & Agency Co Ltd v James [1960] VR 481. 13 In the Will of Moroney (1928) 28 SR (NSW) 553; 45 WN (NSW) 147. Compare Re Fairhurst [1976] 1 NZLR 51; Beven v Beven (1941) 41 SR (NSW) 261 at 262 per Nicholas CJ. 14 Re Smith (decd) [1955] SASR 227; Re Lawrence [1928] SASR 516; In the Will of Mulvihill (1885) 1 WN (NSW) 103; Re Belfrage [1932] VLR 357. See also Beven v Beven (1941) 41 SR (NSW) 261 at 262 per Nicholas CJ. 15 In the Will of Mulvihill (1885) 1 WN (NSW) 103. 16 In the Will of Spence (1969) 89 WN (Pt 1) (NSW) 641. 17 See [395-300]. The paragraph below is current to 20 September 2007

[395-330] Wills on more than one page If a will comprises more than one sheet of paper, a signature appearing only on the final sheet is a valid execution of the whole document, provided the sheets are connected in some way at the time of execution.1 Preceding sheets may be signed for the purpose of authentication and to prevent interpolation.2 Where the testators signature appears on the first page of a will which contains the words over or PTO, and these expressly refer to subsequent pages, probate may be granted of the whole of the document.3 If one page includes an unfinished sentence which is completed on the next page, this may be sufficient to effect an incorporation of the second page into the first page containing the unfinished sentence.4

A testator may commence writing at the back of a four page will form and work towards its front.5 A signature placed on the first page of a multiple page will may be regarded as being at the foot or end of the will if that page is in fact the last page due to the way it was written.6

Attachment of pages of wills has received the attention of the courts. When wills comprise more than one page, the pages must be attached in some manner at execution to reduce the risk of fraud.7 It is sufficient that the testator holds the pages together.8 If all pages are in the same location as, and under the control of, the testator at the time of execution then that is also sufficient to satisfy the requirement of being attached.9

Failure to comply with formal requirements relating to attachment of pages may be overcome by current dispensing powers available to courts.10

Notes 1 Re Young (decd) [1969] NZLR 454; Re Little; Foster v Cooper [1960] 1 All ER 387; [1960] 1 WLR 495; In the Estate of Ryan [1955] VLR 316; [1955] ALR 814; In the Goods of Tiernan [1942] IR 572; In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193. 2 Sweetland v Sweetland (1865) 4 Sw & Tr 6; 164 ER 1416. 3 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291; Re Heitsch [1933] VLR 338; Palin v Ponting [1930] P 185; (1930) 143 LT 23; In the Will of Donovan (1915) 32 WN (NSW) 100; In the Will of Hill (1900) 16 WN (NSW) 137; In the Will of Martin (decd) (1898) 17 NZLR 418. 4 In the Goods of Gee (decd) (1898) 78 LT 843; Re Robertson (decd) (1972) 2 SASR 481; Re Allee (decd); Equity Trustees Executors & Agency Co Ltd v James [1960] VR 481 at 485 per Pape J; Re Smith (decd) [1955] SASR 227; In the Will of Glass (1906) 6 SR (NSW) 426; 23 WN (NSW) 167; In the Will of Smith [1965] Qd R 177; In the Will of Lewis (1943) 60 WN (NSW) 22; Beven v Beven (1941) 41 SR (NSW) 261; Re Roberts; Roberts v Manning [1928] SASR 175 (no part of document admitted to probate); In the Will of Bull [1905] VLR 38; In the Will of Little (decd) (1896) 17 LR (NSW) B & P 57; In the Goods of Anstee [1893] P 283; (1893) 42 WR 16; In the Will of Mahony (1892) 18 VLR 482; In the Will of Holley (1883) 9 VLR (IP & M) 52. See also Re McCarthy (decd) [1922] VLR 216; (1921) 28 ALR 112; 43 ALT 172. 5 In the Estate of Bucknall [1965] SASR 276. 6 In the Will of Hall [1910] VLR 14; (1910) 16 ALR 15; 31 ALT 132. 7 In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193. 8 Lewis v Lewis [1908] P 1; Re Little [1960] 1 WLR 494. 9 In the Goods of Tiernan [1942] IR 572. 10 See [395-300]. The paragraph below is current to 20 September 2007

[395-335] Wills placed in envelopes Where an unsigned will is placed inside an envelope and the testator signs the envelope, the piece of paper and the signed envelope together form a valid will, provided the court is satisfied in relation to the following:1 (1) there is no possibility of fraud; (2) there is a closer relationship between the envelope and the piece of paper than between the envelope and an unrelated document; (3) both the envelope and the paper were written on the same occasion; (4)

both documents were written in the presence of the attesting witnesses2 (the first witness being present during the writing of both documents and the second during the writing of the envelope and the latter part of the dispositive paper);3 and (5) the history of the documents between the time of their making and the date of the testators death is clearly ascertained so that it provides strong evidence confirming that the transaction was completely genuine. In determining what constitutes the face of the will for these purposes, the court may admit extrinsic evidence to show that the testator intended the envelope to be part of the will.4 Where it is clear that the testators intention in writing on the envelope is to execute the will, this is assumed to be the end of the will in a chronological sense and therefore the requirement that the will be signed at the foot or end is satisfied.5

It must be shown that the testator signed the envelope with the intention of executing the will, rather than merely as a means of labelling the will, and extrinsic evidence may be admitted to prove this.6 If the testator is under the false impression that the piece of paper inside the envelope was effectively signed and merely writes his or her name on the envelope, the requirement that the testator intended to execute the will by signing the envelope is not satisfied and the paper and the envelope do not constitute a valid will.7

Notes 1 In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193. 2 As to attesting witnesses generally see [395-345]-[395-370]. 3 This requirement is also satisfied where the testator acknowledges his or her signature to the witnesses: In the Will of Curry (decd) (1945) 46 SR (NSW) 158 (acknowledgment in fact strengthens inference that writing on envelope intended to be signature of testator, placed there by way of execution of will). As to acknowledgment generally see [395-340]. 4 In the Will of Spence (1969) 89 WN (Pt 1) (NSW) 641. In such circumstances courts have generally found the envelope to be part of the face of the will: see In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193; In the Will of Curry (decd) (1945) 46 SR (NSW) 158. 5 In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193; In the Will of Curry (decd) (1945) 46 SR (NSW) 158 at 159 per Nicholas CJ. As to the requirement that a will be signed at the foot or end see [395-315]. 6 In the Will of Curry (decd) (1945) 46 SR (NSW) 158; In the Goods of Mann (decd) [1942] P 146; [1942] 2 All ER 193. Compare Re Bean [1944] P 83; [1944] 2 All ER 348 (testator used a form and signed will on back of form and on envelope but forgot to sign in space provided on form; he then had witnesses sign will in spaces provided on form; will rejected on ground that signatures on back and envelope not written with intention of executing will, but only for purposes of identification); Re Beadle (decd); Mayers v Beadle [1974] 1 All ER 493; [1974] 1 WLR 417. 7 Re Beadle (decd); Mayers v Beadle [1974] 1 All ER 493; [1974] 1 WLR 417. The paragraph below is current to 20 September 2007

[395-340] Acknowledgment Where the testator signs the will prior to attestation, he or she must acknowledge the signature in the joint presence of both witnesses at the time of attestation.1 The testator must have signed the will prior to the acknowledgment, as both witnesses must be able to see the signature at the time of acknowledgment for the acknowledgment to be valid.2 There is a presumption that the testators name was signed before the witnesses signed.3 If the signature is covered at the time of acknowledgment, the acknowledgment is invalid, even if the concealment is unintentional.4 There is no requirement, however, that the witnesses be made aware that the document they are signing is a will, as it is only the signature that is required to be acknowledged, not the will itself.5 There are no specific requirements as to the form an acknowledgment should take; a verbal request for the witnesses to sign6 or a gesture7 may be sufficient. Where a third party, on behalf of the testator, invites the witnesses to attest the will, this may be a constructive acknowledgment by the testator of his or her signature, provided the testator is present and is aware that the request is being made on his or her behalf.8

Failure to comply with formal requirements relating to acknowledgment may be overcome by current dispensing powers available to courts.9

Notes 1 Re Groffman (decd); Groffman v Groffman [1969] 2 All ER 108; [1969] 1 WLR 733. As to attestation generally see [395-345]-[395-370]. 2 In the Goods of Harrison (decd) (1841) 2 Curt 863; 163 ER 611; In the Goods of Gunstan; Blake v Blake (1882) 7 PD 102; [1881-85] All ER Rep 870; (1882) 46 LT 641; Daintree v Butcher (1888) 13 PD 102; 58 LT 661; Re Skelton [1930] VLR 323; [1930] ALR 276; In the Will of Morgan [1950] VLR 335; [1950] ALR 729; In the Will of Seferth (decd) [1956] VLR 382; Re Groffman (decd); Groffman v Groffman [1969] 2 All ER 108; [1969] 1 WLR 733; Re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312. 3 Blake v Knight (1843) 3 Curt 547; 163 ER 821; Re Power [1945] QWN 31. Compare Re Haskard [1947] QWN 6 (testator told witnesses that document was a will but gave them no opportunity to see whether or not it was already signed). 4 Re Groffman (decd); Groffman v Groffman [1969] 2 All ER 108; [1969] 1 WLR 733; Re Power [1945] QWN 31. 5 Daintree v Butcher (1888) 13 PD 102; 58 LT 661; In the Estate of Benjamin [1934] All ER Rep 359; (1934) 150 LT 417; Re Gibson (decd) [1953] NZLR 122 at 125 per Adams J; In the Will of Moriarty (decd) [1956] VLR 400; [1956] ALR 934; Re Young (decd) [1969] NZLR 454. 6 In the Will of Gray (decd) (1888) 14 VLR 207; In the Will of Buckridge (1899) 16 WN (NSW) 125; In the Estate of Rowe (decd) (1913) SALR 168; Re Skelton [1930] VLR 323; [1930] ALR 276; Re Sanders; Hill v Sanders [1944] SASR 22; Re Power [1945] QWN 31. If the testator says to the witnesses this is my will or words to that effect, the acknowledgment is effective notwithstanding the fact that he or she does not actually say this is my signature: Re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312; Re Groffman (decd); Groffman v Groffman [1969] 2 All ER 108; [1969] 1 WLR 733; In the Will of Seferth (decd) [1956] VLR 382; In the Will of Morgan [1950] VLR 335; [1950] ALR 729; Re Haskard [1947] QWN 6; Re Skelton [1930] VLR 323; [1930] ALR 276; McLaren v McLaren [1919] GLR 287; Patterson v Benbow (1889) 7

NZLR 673; Daintree v Butcher (1888) 13 PD 102; 58 LT 661; In the Goods of Gunstan; Blake v Blake (1882) 7 PD 102 at 114; [1881-85] All ER Rep 870; (1882) 46 LT 641 per Brett LJ.

7 In the Goods of Davies (decd) (1850) 2 Rob Eccl 337; 163 ER 1337; In the Goods of Claridge (1879) 39 LT 612; McLaren v McLaren [1919] GLR 287 at 297 per Chapman J. 8 Re Bishop (1982) 46 JP 392; 30 WR 567; Inglesant v Inglesant (1874) LR 3 P & D 172; 30 LT 909; McKenzie v McKenzie (1907) 27 NZLR 461; 9 GLR 334; Morritt v Douglas (1872) LR 3 P & D 1. 9 See [395-300].

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(E) Witnesses The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-375] Eligible witnesses At common law anyone who is able to manifest the requisite intention may validly witness a will.1 However, a blind person is not normally capable of witnessing a will because he or she cannot attest to the truth of something essentially visible; thus, the requirement for a valid attestation that the testator sign in the physical view of the witnesses cannot be satisfied where the witness is blind.2 In New South Wales and Queensland, only those who would be competent witnesses in civil proceedings (other than blind people) may be witnesses to a will.3 In most other jurisdictions, civil competence is not required of witnesses to wills.4 An executor of a will may be a valid witness to that will.5 Where another person has signed the will on behalf, and at the direction of, the testator, that person is not thereby precluded from signing as a witness to the will.6 A chargee for the payment of debts under the will, or his or her spouse, may also attest the will and give evidence, if necessary, as to its validity.7 Where a witness to a will is also a beneficiary under the will he or she may, regardless of whether or not the witness-beneficiary rule applies in the circumstances, provide evidence to prove the validity of the will in the same way as any other witness.8 In South Australia, creditors of the testator may be witnesses.9 Notes 1 Re Lucas (decd) [1966] VR 267 at 269 . As to the intention required of witnesses to a will see [395-360].2 In the Estate of Gibson (decd) [1949] P 434; [1949] 2 All ER 90; (1949) 65 TLR 395 ; Re Groffman (decd); Groffman v Groffman [1969] 2 All ER 108; [1969] 1 WLR 733 ; In the Will of Morgan [1950] VLR 335; [1950] ALR 729 ; Re Haskard [1947] QWN 6; Re Skelton [1930] VLR 323; [1930] ALR 276 ; McLaren v McLaren [1919] GLR 287. As to the requirement that the testator sign in view of the witnesses see [395-345], [395-360].3 (NSW) Wills, Probate and Administration Act 1898 s 12; (NSW) Succession Act 2006 (opn on proc) s 9 (NT) Wills Act 2000 s 11 (QLD) Succession Act 1981 s 10(10) (VIC) Wills Act 1997 s 10. (WA) Wills Amendment Bill 2006 cl 10 when enacted will insert (WA) Wills Act 1970 s 11. 4 (ACT) Wills Act 1968 s 14 (NT) Wills Act 2000 s 11 (SA) Wills Act 1936 s 16 (TAS) Wills Act 1992 s 13

(VIC) Wills Act 1997 s 10. There are no equivalent provisions in Western Australia. As to the position in New South Wales and Queensland see note 3 above. 5 (ACT) Wills Act 1968 s 19 (NT) Wills Act 2000 s 11 (only a person who is unable to see and attest that a testator has signed a document may not be a witness to a will) (NSW) Wills, Probate and Administration Act 1898 s 12 (QLD) Succession Act 1981 s 14 (SA) Wills Act 1936 s 19 (TAS) Wills Act 1992 s 15 (VIC) Wills Act 1997 s 10 (only a person who is unable to see and attest that a testator has signed a document may not act as a witness to a will) (WA) Wills Act 1970 s 11. This provision will be repealed by the (WA) Wills Amendment Bill 2006 cl 11 when enacted. 6 As to persons signing the will on behalf of the testator see [395-310] note 19.7 (ACT) Wills Act 1968 s 18 (NT) Wills Act 1938 (repealed) s 18 (note that this section only applies to wills made prior to the commencement of the (NT) Wills Act 2000; there are no equivalent provisions in this new Act) (NSW) Wills, Probate and Administration Act 1898 s 12; (NSW) Succession Act 2006 (opn on proc) s 9 (a person who is unable to see and attest that a testator has signed a document may not act as a witness to a will) (SA) Wills Act 1936 s 18 (TAS) Wills Act 1992 s 14 (VIC) Wills Act 1958 (repealed) s 14 (note that this section only applies to wills made prior to the commencement of the (VIC) Wills Act 1997; there are no equivalent provisions in this new Act) (WA) Wills Act 1970 s 11. This provision will be repealed by (WA) Wills Amendment Bill 2006 cl 11 when enacted. 8 (NT) Wills Act 1938 (repealed) s 17(2) (note that this section only applies to wills made prior to the commencement of the (NT) Wills Act 2000; there are no equivalent provisions in this new Act) (TAS) Wills Act 1992 s 44(3) (VIC) Wills Act 1958 (repealed) s 13(3)(a) (note that this section only applies to wills made prior to the commencement of the (VIC) Wills Act 1997; there are no equivalent provisions in this new Act) (WA) Wills Act 1970 s 12. This provision will be repealed by (WA) Wills Amendment Bill 2006 cl 11 when enacted. There are no equivalent provisions in the other jurisdictions.

Where the witness-beneficiary rule applies, any gift to that witness or his or her spouse is null and void: see [395-380]. 9 (SA) Wills Act 1936 s 18 (includes a domestic partner within the class of creditors able to be witnesses to the will). The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-380] Witness-beneficiary rule In some jurisdictions, where a beneficiary under a will has also witnessed the will, the gift to that witness is null and void, as is any gift to the spouse of that witness.1 In the Northern Territory, New South Wales and Tasmania, such gifts are void unless: (1) there are at least two other witnesses to the will (who are not themselves beneficiaries or the spouses of beneficiaries);2 (2) the persons who would otherwise take the gift consent in writing to the witness-beneficiary receiving the gift as designated by the will;3 or (3) the court is satisfied that the testator knew and approved of the gift and that it was made freely and voluntarily.4 In Victoria, for wills that are made prior to the proclamation of (VIC) Wills Act 1997, an interested witness5 who would have been entitled to a share of the testators estate upon an intestate distribution is entitled either to whatever he or she would have received under the intestacy, or to what was provided for under the will, whichever represents the lower monetary value.6 Where the interested witness is not entitled to take on an intestacy and therefore is not assisted by the legislation, he or she may nevertheless apply to a court within six months of the grant of probate for an order entitling him or her to claim the benefit under the terms of the will, and the court may make such an order where it is satisfied that the benefit in question was known and approved of by the testator and was not the result of any undue influence.7 In these circumstances the onus of proving the entitlement rests on the interested witness.8 In the Australian Capital Territory, South Australia, and Victoria9 the witness-beneficiary rule (the rule) has been overcome by legislation and no will or provision thereof is void by reason only of having been attested by a beneficiary or the spouse of a beneficiary.10 The time for establishing when the rule applies is at the time of attestation, and a witnessbeneficiarys interest is not destroyed where he or she was not a beneficiary at the time of execution of the will but subsequently gained an interest under it.11 The marriage of a beneficiary to an attesting witness subsequent to execution of the will does not affect the validity of the gift to that beneficiary.12 A gift in a will to a witness or his or her spouse as trustee is not affected by the witness-

beneficiary rule; as a trustee takes no benefit, the gift does not fall within the meaning of a beneficial disposition.13 Where a joint tenancy is created by a gift under the will and one of the joint tenants has signed as witness to the will, the non-attesting joint tenant takes the whole gift.14 If the will under which the witness is a beneficiary is republished by means of a codicil which is not attested by the beneficiary, he or she is entitled to the gift under the codicil.15 Where a solicitor is appointed as executor, the will may contain a charging clause for work done by the solicitor as executor, but such clauses have been held to be gifts and if the solicitor also acted as witness to the will the gift is void,16 except where an employee or partner of the solicitor attests instead of the solicitor.17 In South Australia, a domestic partner is included within the class of persons who can receive gifts under a will yet not have that gift invalidated by being a witness to the will.18 Notes 1 (NT) Wills Act 2000 s 12(1) (NSW) Wills, Probate and Administration Act 1898 s 13(1); (NSW) Succession Act 2006 (opn on proc) s 10 (QLD) Succession Act 1981 s 11(2) (TAS) Wills Act 1992 s 44(1) (VIC) Wills Act 1958 (repealed) s 13 (note that this section only applies to wills made prior to the commencement of the (VIC) Wills Act 1997). Compare (VIC) Wills Act 1997 s 11 (beneficiary may take the benefit of a will he or she witnesses). As to the position in the Australian Capital Territory and South Australia see note 10 below. See also In the Estate of Bravda (decd); Bravda v Bravda [1968] 2 All ER 217; [1968] 1 WLR 479, CA. Attesting beneficiaries may give evidence to prove execution in some jurisdictions: see [395-375] note 8. As to solicitors liability for negligence in circumstances where the spouse of a beneficiary attests a will see Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; 71 ALJR 487 (a duty of care was owed by the solicitor to the intended beneficiary). See also Aluminium Products (Qld) Pty Ltd v Hill [1981] Qd R 33 (action in negligence against solicitor may lie independently of action framed in contract). Compare Ross v Caunters [1980] Ch 297; [1979] 3 All ER 80 ; Watts v Public Trustee (WA) [1980] WAR 97 . As to solicitors liability for negligence generally see legal practitioners [250-580]-[250-595]. 2 (NT) Wills Act 2000 s 12(2)(a) (NSW) Wills, Probate and Administration Act 1898 s 13(2)(a); (NSW) Succession Act 2006 (opn on proc) s 10(3)(a) (TAS) Wills Act 1992 s 44(2)(a). In these circumstances and provided the court is satisfied that the beneficiarys signature was not for the purposes of attestation, the court may admit the document to probate by deleting the beneficiarys signature: In the Will of Greenfield (1922) 22 SR (NSW) 478; 39 WN (NSW) 140 ; Wilgoss v Ward (1921) 22 SR (NSW) 61; 38 WN (NSW) 248 ; In the Will of Elms [1964] NSWR 286. As to additional witnesses see [395-385]. 3 (NT) Wills Act 2000 s 12(2)(b)

(NSW) Wills, Probate and Administration Act 1898 s 13(2)(b); (NSW) Succession Act 2006 (opn on proc) s 10(3)(b) (TAS) Wills Act 1992 s 44(2)(b). There are no equivalent provisions in Western Australia. 4 (NT) Wills Act 2000 s 12(2)(c) (NSW) Wills, Probate and Administration Act 1898 s 13(2)(c); (NSW) Succession Act 2006 (opn on proc) s 10(3)(c) (TAS) Wills Act 1992 ss 45, 46. There are no equivalent provisions in Western Australia. As to the requirement of knowledge and approval generally see [395-200]. 5 (VIC) Wills Act 1958 (repealed) s 13(3)(c)(ii)-(iv) (interested witness defined as a witness to the will or the spouse of a witness to the will who is entitled to receive any property or any power).6 Ibid s 13.7 Re Emanuel (decd) [1981] VR 113 . As to undue influence see [395-210].8 Re Emanuel (decd) [1981] VR 113 .9 (VIC) Wills Act 1997 s 11 (note that this section only applies to wills made after the the commencement of the (VIC) Wills Act 1997) (beneficiary may take the benefit of a will he or she witnesses).10 (ACT) Wills Act 1968 s 15 (SA) Wills Act 1936 s 17 (VIC) Wills Act 1997 s 11. There are no equivalent provisions in the other jurisdictions. 11 Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 (testatrix left her whole estate to her brother subject to a provision that if he predeceased her, the gift should not lapse but should devolve as though he had died immediately after her; the brother predeceased the testatrix; held that beneficiaries under the brothers will were not precluded from also taking as beneficiaries in the testatrixs estate, as a result of the combined operation of the two wills, even though they were witnesses to the testatrixs will); Re Royces Will Trusts [1959] Ch 191 at 198 per Wynn-Parry J; Thorpe v Bestwick (1881) 6 QBD 311 .12 Thorpe v Bestwick (1881) 6 QBD 311 .13 Re Rays Will Trusts; Public Trustee v Barry [1936] Ch 520; [1936] 2 All ER 93 ; Cresswell v Cresswell (1868) LR 6 Eq 69; 37 LJ Ch 521; 18 LT 392; Re Bernard; Jessop v Whiteman (1909) 9 SR (NSW) 417; 26 WN (NSW) 80 . See also Re Young (decd); Young v Young [1951] Ch 344; [1950] 2 All ER 1245 (witness unaware of secret, oral trust in his favour at time of attestation; gift held valid).14 Young v Davies (1863) 2 Drew & Sm 167; 8 LT 80; 62 ER 585 ; Re Fleetwood; Sidgreaves v Brewer (1880) 15 Ch D 594; 49 LJ Ch 514 .15 Harris v Harris (1880) 1 LR (NSW) L 247 ; Gurney v Gurney (1855) 3 Drew 208; 61 ER 882 ; Re Trotter; Trotter v Trotter [1899] 1 Ch 764; (1899) 80 LT 647 ; Anderson v Anderson (1872) LR 13 Eq 381; [186173] All ER Rep 161. As to republication generally see [395-760]-[395-785].16 Commissioner of Stamp Duties (NSW) v Pearse (1953) 89 CLR 51; [1954] AC 91; (1953) 27 ALJ 616; [1954] 1 All ER 19 , PC; Sacks v Gridiger (1990) 22 NSWLR 502 ; Re Pooley (1888) 40 Ch D 1; [188690] All ER Rep 157; (1888) 60 LT 73 . Compare Re Dunstan; Sandhurst and Northern District Trustees, Executors and Agency Co Ltd v Cohen, Kirby and Co [1931] VLR 222; [1931] ALR 129 (entitlement, conferred by statute, to act as solicitors for estate held not to be beneficial interest under will and therefore not subject to the witness-beneficiary rule); Re Barber; Burgess v Vinicome (1886) 34 Ch D 77 ; Re Pooley (1888) 40 Ch D 1; [1886-90] All ER Rep 157; (1888) 60 LT 73 . In Queensland, professional charging clauses have now been exempted from the operation of the witness-beneficiary rule: (QLD) Succession Act 1981 s 15.

17 Sacks v Gridiger (1990) 22 NSWLR 502 (solicitor witnessed codicil to will which provided for payment of all professional fees and costs for administration of estate by that solicitor as executor; clause void as beneficial gift to witness to extent that it gave that particular solicitor the right to charge); Re Bunting [1974] 2 NZLR 219 ; Re Oberg [1952] QWN 38 .18 (SA) Wills Act 1936 s 17. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-385] Additional witnesses Provided that two witnesses attest the will,1 there is no limit to the number of witnesses who may sign the will. There is a general presumption that all persons who sign a will other than the testator do so as witnesses.2 Therefore, as a result of the witnessbeneficiary rule,3 a superfluous signature by a beneficiary may negative the gift to that beneficiary or his or her spouse, unless it is shown that the will was duly executed and attested without that signature and, by an examination of intrinsic and extrinsic evidence, that the signature was not intended to attest the will, so that the will may be admitted to probate without that signature and the gift saved.4 Additional signatures have been shown to be for a variety of purposes other than attestation, including: (1) verifying the signatures of the attesting witnesses;5 (2) for the purposes of self-identification;6 (3) in the mistaken belief that an executor is required to sign the will to indicate his or her acceptance of that position;7 or (4) as a means of illustrating approval of the provisions of the will.8 It is a question for the court of probate to determine whether or not the additional signature may be omitted from probate.9 In most jurisdictions, where there are two independent attesting signatures appearing on the face of the will, a gift to an additional attesting witnesses may be saved as his or her attestation may be disregarded.10 Notes 1 As to the minimum requirement of two attesting witnesses see [395-345].2 In the Estate of Bravda (decd); Bravda v Bravda [1968] 2 All ER 217; [1968] 1 WLR 479, CA.3 As to the witnessbeneficiary rule see [395-380].4 In the Will of Bannister (1877) 3 VLR (IP & M) 114 ; Re Cathery (decd) (1890) 24 SALR 40 ; In the Will of Greenfield (1922) 22 SR (NSW) 478; 39 WN (NSW) 140 ; Wilgoss v Ward (1921) 22 SR (NSW) 61; 38 WN (NSW) 248 ; In the Will of Elms [1964] NSWR 286.5 In the Will of Frost (1903) 4 SR (NSW) 254 .6 Re Cathery (decd) (1890) 24 SALR 40 .7 Re Garthe (decd) [1935] QWN 15 ; Re Dunn [1919] NZLR 685 ; In the Will of

Bannister (1877) 3 VLR (IP & M) 114 .8 In the Estate of Bravda (decd); Bravda v Bravda [1968] 2 All ER 217; [1968] 1 WLR 479, CA; In the Will of Elms [1964] NSWR 286; Kitcat v King [1930] P 266; (1930) 99 LJP 126; 143 LT 408 ; In the Will of Greenfield (1922) 22 SR (NSW) 478; 39 WN (NSW) 140 ; Wilgoss v Ward (1921) 22 SR (NSW) 61; 38 WN (NSW) 248 .9 Wilgoss v Ward (1921) 22 SR (NSW) 61; 38 WN (NSW) 248 .10 (NSW) Wills, Probate and Administration Act 1898 s 13(2); (NSW) Succession Act 2006 (opn on proc) s 10(3)(a) (QLD) Succession Act 1981 s 11(3)(a) (TAS) Wills Act 1992 s 44(2) (VIC) Wills Act 1958 (repealed) s 13(3)(c)(i) (note that this only applies to wills made prior to the commencement of the (VIC) Wills Act 1997). There are no equivalent provisions in the other jurisdictions. In the Australian Capital Territory, South Australia and Victoria (since the commencement of the (VIC) Wills Act 1997), beneficiaries may validly attest wills: see [395-380].

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[Halsbury's Laws of Australia]

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(5) INCORPORATION BY REFERENCE (A) Reference The paragraph below is current to 20 September 2007 [395-440] Incorporation by reference Subject to certain conditions, the doctrine of incorporation provides for the incorporation of an informal document into a properly executed will.1 First, the document must exist at the time the will is made.2 Those seeking to have the document incorporated must establish this requirement.3 A document which is created after the will may be incorporated in the will if a codicil made after the document confirms the original will.4 Second, the will must refer to the document as being in existence at the time the will is executed.5

This must be clear from the face of the will.6 A reference to a document that will come into existence at a later date is not sufficient.7 Third, the document referred to must be clearly identifiable.8 Parol evidence9 is admissible to ascertain the document referred to,10 but only if it is clear from the face of both instruments that they are related.11 If the three conditions are satisfied and the document is incorporated, it is treated as a testamentary instrument and must be construed as part of the will.12 As a result, an instrument that was previously invalid may become operative; for example, an informal testamentary instrument which is incorporated in a validly executed codicil.13 Incorporation by reference may also be effected by an audio-tape.14 Notes 1 Allen v Maddock (1858) 11 Moo PCC 427; [1843-60] All ER Rep 285; (1858) 14 ER 757 ; Re Stable [1954] QWN 64; Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 . An informal document is one that has not been executed according to the requisite formalities: see [395-280][395-300].2 Re Stable [1954] QWN 64; Re Berger (decd) [1990] Ch 118; [1989] 1 All ER 591; [1989] 2 WLR 147 .3 Singleton v Tomlinson (1878) LR 3 App Cas 404; 38 LT 653.4 In the Goods of Lady Truro (decd) (1866) LR 1 P & D 201; 14 LT 893; In the Estate of Phillips; Boyle v Thomson (1918) 34 TLR 256. As to republication and codicils generally see [395-760]-[395785].5 In the Will of Beveridge (1905) 6 SR (NSW) 125; 22 WN (NSW) 224 ; Re Norris (1866) 14 WR 348.6 Re Jones; Jones v Jones [1942] Ch 328; [1942] 1 All ER 642 .7 In the Goods of Smart [1902] P 238; Re Batemans Will Trusts; Brierley v Perry [1970] 3 All ER 817; [1970] 1 WLR 1463 .8 Allen v Maddock (1858) 11 Moo PCC 427; [1843-60] All ER Rep 285; (1858) 14 ER 757 ; Re Pepperill (decd) [1927] St R Qd 154 .9 Parol evidence is oral evidence: see further evidence [195-1910], [195-3565].10 Allen v Maddock (1858) 11 Moo PCC 427; [1843-60] All ER Rep 285; (1858) 14 ER 757 (incorporation of a paper effected by the execution of a codicil).11 Re Williams Will (1897) 7 QLJ 151 . Parol evidence is inadmissible to identify a document which has been lost: Re Will of Briggs (1897) 15 NZLR 547. See also In the Goods of Mercer (1870) LR 2 P & D 91. As to lost wills see [395-645].12 Watson v Arundel (1877) IR 11 Eq 53; Attorney-General v Jones (1817) 3 Price 368; 146 ER 291 .13 Allen v Maddock (1858) 11 Moo PCC 427; [1843-60] All ER Rep 285; (1858) 14 ER 757 . See also Re Balmes Goods [1897] P 261; Watson v Arundel (1877) IR 11 Eq 53 (where the document is physically too large to be admitted to probate, it is nevertheless a testamentary instrument and must be construed as the will).14 Treacey v Edwards (2000) 49 NSWLR 739; [2000] NSWSC 846; BC200005014 .

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[Halsbury's Laws of Australia]

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(B) Secret and Half Secret Trusts The paragraph below is current to 20 September 2007 [395-445] Fully secret trusts Where, on the face of a will, a gift to a beneficiary appears to be absolute,1 but it is proved2 that either before3 or after4 the date of execution, but while the testator was still alive,5 the testator communicated to the beneficiary that the gift was to be upon certain trusts or conditions6 and these were stated to be binding upon the beneficiary,7 evidence of such trusts or conditions is admissible.8 The beneficiary must have accepted such trusts or conditions for the secret trust to be binding.9 It must also be shown that by reason of the beneficiarys acceptance of the trusts or other conditions, the testator was induced to make the gift, or to leave unrevoked a gift already made.10 Fully secret trusts involving gifts of land have been held to be constructive trusts and therefore do not need to be evidenced in writing.11 The trustee of a fully secret trust may take any surplus remaining after the trust has been fully performed.12 Secret and half-secret testamentary trusts may be useful in protecting confidential information in the form of ritual and secret knowledge of indigenous people.13 Notes 1 McCormick v Grogan (1869) LR 4 HL 82; 17 WR 961; Burney v MacDonald (1845) 15 Sim 6; 60 ER 518 ; Re Spencers Will (1887) 57 LT 519; 3 TLR 822 , CA; Re Pughs Will Trusts; Marten v Pugh [1967] 3 All ER 337; [1967] 1 WLR 1262 .2 Voges v Monaghan (1954) 94 CLR 231 ; In the Will of Doig; Carter v Gramsch [1916] VLR 698; (1916) 23 ALR 5 . Proof may come from an admission by the trustee (Re Maddock; Llewellyn v Washington [1902] 2 Ch 220 , CA; Re Huxtable; Huxtable v Crawfurd [1902] 2 Ch 793; [1900-3] All ER Rep 799 , CA) or from other sources: Podmore v Gunning (1836) 7 Sim 644; 58 ER 985. Acceptance of the trust by the trustee must, however, be demonstrated: French v French [1902] 1 IR 172 , HL; Re Gardom; Le Page v A-G (1915) 84 LJ Ch 749, HL; Re Gardner; Huey v Cunnington [1920] 2 Ch 523 , CA; Re Pitt Rivers; Scott v Pitt Rivers [1902] 1 Ch 403; (1902) 86 LT 6 . As to evidence admissible to prove the existence of a secret trust see [395-455] and trusts [430-355].3 Re Applebee; Leveson v Beales [1891] 3 Ch 422 at 430-1; (1891) 65 LT 406 .4 Moss v Cooper (1861) 1 John & H 352; 70 ER 782 .5 Voges v Monaghan (1954) 94 CLR 231 ; Moss v Cooper (1861) 1 John & H 352; 70 ER 782 ; Re Stead; Witham v Andrew [1900] 1 Ch 237 ; Re Shields; Corbould-Ellis v Dales [1912] 1 Ch 591 . Where the intended trustee only receives the communication, whether by means of a letter or some other form of document, after the testators death, this is not sufficient to impose the trust on him or her: Re Boyes; Boyes v Carritt (1884) 26 Ch D 531 . Compare Re Keen; Evershed v Griffiths [1937] Ch 236; [1937] 1 All ER 452 (trust is valid where a letter is handed to trustee and he or she is told it contains terms of the trusts but that it is not to be opened until after testators death).6 Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325; [1972] 2 WLR 50 ; Brown v Pourau [1995] 1 NZLR 352 ; Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 , HL.7 Logan v Gardiner [2006] NSWSC 1069; BC200608217 ; Nabainivalu v Hopkins [2006] NSWSC 215; BC200602045 (no secret trust); Howell v Hyde (2003) 47 ACSR 230; [2003] NSWSC 732; BC200304478 ; Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767; BC200004324 ; Wallgrave v Tebbs (1855) 2 K & J 313; 69 ER 800; McCormick v Grogan (1869) LR 4 HL 82; 17 WR 961; Moss v Cooper (1861) 1 John & H 352; 70 ER 782 ; Jones v Badley (1868) LR 3 Ch App 362; Re Pughs Will Trusts; Marten v Pugh [1967] 3 All ER 337; [1967] 1 WLR 1262 . Compare the situation where the

communications were not intended to be binding: Podmore v Gunning (1836) 7 Sim 644; 58 ER 985; Re Pitt Rivers; Scott v Pitt Rivers [1902] 1 Ch 403; (1902) 86 LT 6 , CA; Re Falkiner; Mead v Smith [1924] 1 Ch 88 ; Re Stirling; Union Bank of Scotland Ltd v Stirling [1954] 2 All ER 113; [1954] 1 WLR 763; Re Snowden (decd) [1979] Ch 528; [1979] 2 All ER 172; [1979] 2 WLR 654 .8 As to evidentiary issues in relation to secret trusts see [395-455] and trusts [430-355]. As to secret trusts generally see trusts [430-110], [430-350]-[430-365].9 Voges v Monaghan (1954) 94 CLR 231 ; Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325; [1972] 2 WLR 50 ; Brown v Pourau [1995] 1 NZLR 352 . Such acceptance may be express or may be indicated by silence: Russell v Jackson (1852) 10 Hare 204; 68 ER 900 ; Moss v Cooper (1861) 1 John & H 352; 70 ER 782 . However, where silence is claimed to indicate acceptance, the evidence must leave no doubt in the mind of the court as to the acceptance: French v French [1902] 1 IR 172 at 213 ; Re Williams; Williams v All Souls, Hastings (Parochial Church Council) [1933] Ch 244 .10 Moss v Cooper (1861) 1 John & H 352; 70 ER 782 .11 Dixon v White (unreported, SC(NSW), Holland J, No 36240/80, 14 April, 1982); Brown v Pourau [1995] 1 NZLR 352 (fully secret trusts). Half secret trusts may not be enforceable unless evidenced in writing: Re Baillie (1886) 2 TLR 660 . As to half secret trusts see [395-450] and trusts [430-375]. The question of whether secret trusts are to be treated as express or constructive trusts remains unsettled: see trusts [430-110]. As to the general requirement that instruments affecting interests in land be in writing see real property [355-2160]-[355-2360], [355-4525]-[355-4550], deeds and other instruments [140-445].12 Irvine v Sullivan (1869) LR 8 Eq 673; 38 LJ Ch 365; 17 WR 1083; Re Tulley; Mackay v Jackson [1918] VLR 556; (1918) 25 ALR 6 . Compare the situation where construction of the will itself indicates that the recipient of the gift takes as trustee rather than taking a beneficial interest: see [395-450].13 See Vines P, Drafting Wills for Indigenous People: Pitfalls and Considerations, University of New South Wales Law Research Series 18 is available at http://www.austlii.edu.au. The paragraph below is current to 20 September 2007 [395-450] Half secret trusts Where on construction of the will 1 it is clear that a gift has been given to a beneficiary upon certain trusts or conditions referred to in the will, although the precise terms do not appear on the face of the will,2 the recipient of the gift cannot take beneficially and holds the subject matter of the gift on trust for the undisclosed beneficiaries3 or, where the trust fails, for those who would be entitled to the residue of the estate under an intestacy.4 Half secret trusts must have been declared and communicated to the trustees on or before the execution of the will5 and the will must state that this has been done.6 Where the partly secret trust is defined and communicated to some, but not all, of the intended trustees, the trust is still valid.7 Half secret trusts have been held to be express trusts and therefore required to be evidenced in writing.8 Where there is a surplus remaining after full performance of a half secret trust the trustee holds the surplus on a resulting trust for the residuary beneficiaries or for the party entitled under an intestacy.9 Notes 1 As to the construction of wills generally see [395-905]-[395-1005].2 Voges v Monaghan (1954) 94 CLR 231 at 233, 235 per Dixon J; Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 , HL. The details of such trusts must either be set out in documentation in existence at the date of execution, or must be declared and accepted by the trustee prior to or at the date of execution: Crook v Brooking (1688) 2 Vern 50; 23 ER 643; Pring v Pring (1689) 2 Vern 99; 23 ER 673 ; Smith v Attersoll (1826) 1 Russ 266; 38 ER 103; Re Fleetwood; Sidgreaves v Brewer (1880) 15 Ch D 594; 49 LJ Ch 514 ; Re Huxtable; Huxtable v Crawfurd [1902] 2 Ch 793; [19003] All ER Rep 799 , CA. As to half secret trusts see trusts [430-375].3 Re Boyes; Boyes v Carritt (1884) 26 Ch D 531 ; Re Rees; Williams v Hopkins [1950] Ch 204; [1949] 2 All ER 1003 (gift stated to be to my trustees absolutely they well knowing my wishes concerning the same held to be gift on trust rather than gift conditional upon testators wishes being carried out).4 Guest v Webb [1965] VR 427 ; Re Rees; Williams v Hopkins [1950] Ch 204; [1949] 2 All ER 1003 ; Re

Karsten; Edwards v Moore [1953] NZLR 456 ; Re Pughs Will Trusts; Marten v Pugh [1967] 3 All ER 337; [1967] 1 WLR 1262 (testator directed trustee to dispose of subject matter of gift according to directions or letters left with will and no such instructions were left; trust therefore failed and subject matter of gift passed under an intestacy). Compare Re Tylers Fund Trusts; Graves v King [1967] 3 All ER 389; [1967] 1 WLR 1269.5 Guest v Webb [1965] VR 427 (letter setting out details of trust referred to in will retained by testator for amendment and was not found after her death; an intestacy resulted); Re Hetley; Hetley v Hetley [1902] 2 Ch 866 ; Re Keen; Evershed v Griffiths [1937] Ch 236; [1937] 1 All ER 452 , CA. See also Johnson v Ball (1851) 5 De GJ & Sm 85; 64 ER 1029 ; Re Boyes; Boyes v Carritt (1884) 26 Ch D 531 at 535 ; Balfe v Halfpenny [1904] 1 IR 486; Re Jones; Jones v Jones [1942] Ch 328; [1942] 1 All ER 642 ; Re Batemans Will Trusts; Brierley v Perry [1970] 3 All ER 817; [1970] 1 WLR 1463 .6 Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 ; Re Cooper (decd); Le Neve-Foster v National Provincial Bank [1939] Ch 811; [1939] 3 All ER 586 , CA; Re Keen; Evershed v Griffiths [1937] Ch 236; [1937] 1 All ER 452 .7 Re Gardom; Le Page v A-G [1914] 1 Ch 662 at 673 ; Re Keen; Evershed v Griffiths [1937] Ch 236 at 248; [1937] 1 All ER 452 .8 Brown v Pourau [1995] 1 NZLR 352 at 368 per Hammond J; Re Baillie (1886) 2 TLR 660 .9 Re Rees; Williams v Hopkins [1950] Ch 204; [1949] 2 All ER 1003 (evidence to show that testator intended trustee to retain surplus inadmissible as directly contradicting express terms of will). See also Re Karsten; Edwards v Moore [1953] NZLR 456 (trustee did not deny trust but sought to demonstrate one term of the trust was that she should benefit; evidence of such a term ruled inadmissible as equity may only intervene to admit evidence that binds conscience of trustee in respect of their dealings with other persons and not in respect of themselves). The paragraph below is current to 20 September 2007 [395-455] Evidentiary issues Where the existence of a secret or half secret trust is alleged, evidence may be admitted to prove the existence and nature of the undertaking between the beneficiary and the testator and to show that the beneficiary accepted and was bound by the undertaking.1 It is no longer necessary to show that fraud was involved2 and the standard of proof is the ordinary civil standard, that is, on the balance of probabilities,3 as applicable to the existence of any other type of trust.4 Even where the will expressly states that the trustee is to take beneficially, evidence of the existence of a secret trust is admissible.5 However, where on construction of the will it is clear that the gift is subject to a trust, evidence may not be led to show that the beneficiary takes any part of the gift beneficially, as this would conflict with the express terms of the will.6 If a secret trust is proved, the beneficiaries are determined under the terms of the trust and not those of the will.7 Where evidence of secret trusts contradicts the express terms of the will, such evidence is not admissible.8 Notes 1 Voges v Monaghan (1954) 94 CLR 231 at 233 per Dixon CJ, at 239 per Webb J, at 252 per Fullagar and Kitto JJ; Re Alston (decd); Equity Trustees Executors and Agency Co Ltd v Spielvogel [1955] VLR 281; [1955] ALR 896 (a wish that trustees offer a property to lessee at reasonable price before selling it held not to be binding); Guest v Webb [1965] VR 427 .2 Re Snowden (decd) [1979] Ch 528; [1979] 2 All ER 172; [1979] 2 WLR 654 . Previously evidence was admissible to avoid fraud on the donees part: McCormick v Grogan (1869) LR 4 HL 82; 17 WR 961; Re Stead; Witham v Andrew [1900] 1 Ch 237 ; Re Pitt Rivers; Scott v Pitt Rivers [1902] 1 Ch 403 at 407; (1902) 86 LT 6 per Vaughan-Williams LJ, CA; Tharp v Tharp [1916] 1 Ch 142 .3 See further evidence [195-330].4 Re Snowden (decd) [1979] Ch 528; [1979] 2 All ER 172 at 178-9; [1979] 2 WLR 654 per Megarry VC. Compare Ottaway v Norman [1972] Ch 698; [1971] 3 All ER 1325; [1972] 2 WLR 50 . As to the standard of proof required to show the existence of a trust see trusts.5 Voges v Monaghan (1954) 94 CLR 231 ; Russell v Jackson

(1852) 10 Hare 204; 68 ER 900 ; Re Spencers Will (1887) 57 LT 519; 3 TLR 822 , CA. See also Re Young (decd); Young v Young [1951] Ch 344; [1950] 2 All ER 1245 .6 Re Rees; Williams v Hopkins [1950] Ch 204; [1949] 2 All ER 1003 ; Re Karsten; Edwards v Moore [1953] NZLR 456 ; Re Pughs Will Trusts; Marten v Pugh [1967] 3 All ER 337; [1967] 1 WLR 1262 .7 Re Young (decd); Young v Young [1951] Ch 344; [1950] 2 All ER 1245 at 1251 . See further [395-465].8 Re Huxtable; Huxtable v Crawfurd [1902] 2 Ch 793; [1900-3] All ER Rep 799 , CA; Re Keen; Evershed v Griffiths [1937] Ch 236 at 247; [1937] 1 All ER 452 at 459 , CA. See also Re Rees; Williams v Hopkins [1950] Ch 204; [1949] 2 All ER 1003 ; Re Spence; Quick v Ackner [1949] WN 237. The paragraph below is current to 20 September 2007 [395-460] Alteration and revocation A trustee is no longer bound by the agreed terms of a secret trust if the testator revokes the trust and communicates this to the trustee.1 Similarly, a trust is revoked if the terms of the trust appear in a document incorporated by reference into the will and that document is subsequently revoked.2 Where the document incorporated by reference cannot be found, there is a presumption that it has been revoked.3 Where the testator alters the terms of the trust, but does not revoke it, the change must be communicated to and accepted by the trustee in order to take effect, as the testator cannot place new obligations upon the trustee without his or her consent.4 Thus, where a subsequent will or codicil increases the gift to a beneficiary who is already bound by a secret trust, but the testator does not indicate to the trustee that the increase is also subject to the terms of the trust, the trust is valid only in respect of the original amount.5 Notes 1 See Guest v Webb [1965] VR 427 ; Re Cooper (decd); Le Neve-Foster v National Provincial Bank [1939] Ch 811; [1939] 3 All ER 586 , CA.2 Guest v Webb [1965] VR 427 .3 Guest v Webb [1965] VR 427 (oral instructions as to terms of trust given to trustee held to have been superseded by reference in testatrixs will to trusts as per attached letter; this letter was never found, therefore no evidence was available to rebut presumption that contents of letter were revoked). As to the presumption of revocation and lost testamentary instruments see [395-645].4 Re Cooper (decd); Le Neve-Foster v National Provincial Bank [1939] Ch 811; [1939] 3 All ER 586 , CA.5 Re Cooper (decd); Le Neve-Foster v National Provincial Bank [1939] Ch 811; [1939] 3 All ER 586 . See also Guest v Webb [1965] VR 427 . The paragraph below is current to 20 September 2007 [395-465] Failure of secret trusts Secret trusts1 may fail for a number of reasons including: (1) illegality of the trust;2 (2) circumstances in which the trust cannot take effect;3 (3) failure of the testator to communicate the trust to the intended trustee;4 and (4) situations in which the trust has not been assented to by the intended trustee during the

testators lifetime.5 In the circumstances outlined in list items (2), (3) and (4) above, the intended trustee takes the gift beneficially and free of the trust.6 Where the beneficiary of the trust predeceases the testator, the gift does not fail, but is distributed under the terms of the beneficiarys will or according to his or her intestacy as the case may be.7 Where the intended trustee predeceases the testator, however, the position is unclear.8 The gift to the intended beneficiary of a secret trust does not fail where the beneficiary signs the will as attesting witness.9 The position where the intended trustee attests the will is unclear.10 Failure of a secret trust appears to be connected with the view taken of the interaction of a secret trust with legislation on wills. Contemporary approaches indicate that secret trusts are not testamentary in nature so that legislative provisions dictating formalities of wills cease to be relevant considerations.11 Notes 1 As to secret trusts generally see [395-445]-[395-460] and trusts [430-350]-[430-375].2 Muckleston v Brown (1801) 6 Ves 52; 31 ER 934 ; Habershon v Vardon (1851) 4 De GJ & Sm 467; 64 ER 916. If the trust is illegal, the beneficiary holds the gift on trust for those who would have received the property if it had not been included in the disposition: Russell v Jackson (1852) 10 Hare 204; 68 ER 900 . See also Re Gardner; Huey v Cunningham [1923] 2 Ch 230; (1923) 92 LJ Ch 569; 129 LT 206 ; Russell v Scott (1936) 55 CLR 440; [1936] ALR 375; (1936) 10 ALJ 211 .3 Burney v MacDonald (1845) 15 Sim 6; 60 ER 518 at 521 per Lord Shadwell VC. If the trust cannot take effect, the donee takes the gift absolutely: Russell v Jackson (1852) 10 Hare 204 at 204; 68 ER 900 .4 Carter v Green (1857) 3 K & J 591; 69 ER 1245.5 Podmore v Gunning (1836) 7 Sim 644; 58 ER 985; Jones v Badley (1868) LR 3 Ch App 362.6 Russell v Jackson (1852) 10 Hare 204; 68 ER 900 ; Re Gardom; Le Page v A-G [1914] 1 Ch 662 . However, where the trust fails because the beneficiaries are unascertainable, the secret trustee does not take beneficially, whether or not the terms of the trust are unascertainable: Brown v Pourau [1995] 1 NZLR 352 .7 Re Gardner; Huey v Cunningham [1923] 2 Ch 230; (1923) 92 LJ Ch 569; 129 LT 206 . See also Re Spence; Quick v Ackner [1949] WN 237. 8 See Re Maddock; Llewellyn v Washington [1902] 2 Ch 220 ; Blackwell v Blackwell [1929] AC 318; [1929] All ER Rep 71 . See also trusts [430-350].9 See [395-455] note 8. A gift to the ultimate beneficiary under a fully secret trust does not fail where he or she has attested the will because the ultimate beneficiary does not take under the will but under the terms of the trust: OBrien v Condon [1905] 1 IR 51 ; Re Young (decd); Young v Young [1951] Ch 344 at 346; [1950] 2 All ER 1245 per Danckwerts J. As to the witness-beneficiary rule see [395-455].10 In the case of a fully secret trust, the gift may fail in respect of the intended trustee where he or she has attested the will and the witness-beneficiary rule applies: Re Young (decd); Young v Young [1951] Ch 344; [1950] 2 All ER 1245 ; OBrien v Condon [1905] 1 IR 51 . In the case of a half secret trust, if it is clear on the face of the will that the trustee takes as a trustee and not beneficially, the half secret trust will not fail where the trustee has attested the will: Re Young (decd); Young v Young [1951] Ch 344; [1950] 2 All ER 1245 ; Re Rays Will Trusts; Public Trustee v Barry [1936] Ch 520; [1936] 2 All ER 93 . See further trusts. As to the witness-beneficiary rule see [395-380]. 11 Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 536; BC9701112 per Young J .

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[Halsbury's Laws of Australia]

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(6) PRIVILEGED WILLS The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-520] Privileged wills In some jurisdictions,1 wills made by privileged testators,2 whether oral or written, may be admitted to probate as valid wills even where they have failed to comply with some or all of the formal requirements for the execution of a testamentary instrument.3 The definition of privileged testator varies slightly in each jurisdiction. In the Australian Capital Territory the following classes of persons are included in the category of privileged testators:4 (1) members of the Defence Force who are in actual armed service;5 (2) persons employed outside Australia as representatives of organisations rendering philanthropic, welfare or medical service to members of the Defence Forces; and (3) prisoners of war or persons interned in a country under the sovereignty, or in the occupation, of the enemy or in a neutral country, who became prisoners of war or were so interned as a result of war or war-like operations and were, immediately before their capture or internment, persons included in the class of persons specified in items (1) to (3) above. In South Australia, any person on active service as a member of a military, naval or air force of the Commonwealth may dispose of his or her real and personal property by nuncupative (oral) will.6 In Tasmania, the category of privileged testator consists of members of the naval, military or air forces of the Commonwealth on active service, or mariners or seamen while they are at sea.7 In Western Australia, the following persons of any age may make a valid privileged will:8

(1) any person, whether as a member or not, serving with the armed forces of the Commonwealth or its allies while in actual military, naval or air service in connection with operations that are, or have been taking place, or are believed to be imminent in relation to a war declared or undeclared or other armed conflict in which members of such armed forces are, have been or are likely to be engaged; or (2) any mariner or seaman being at sea. A privileged will remains valid after the cessation of the testators privileged status.9 In some jurisdictions the status of privileged testator is expressly extended to persons below the age of 18 years, provided that they otherwise satisfy the requirements set out in the legislation.10 In all jurisdictions where privileged wills may be admitted to probate as valid wills, privileged wills may dispose of both realty and personalty.11 Not all Australian jurisdictions provide for privileged wills. Their omission may be remedied by the provision of the dispensing powers now available to most relevant Australian courts.12 Notes 1 In New South Wales, the category of privileged testator was abolished in 1989: (NSW) Wills, Probate and Administration (Amendment) Act 1989 s 3, Sch 1 paras (1), (4). Where a privileged testator died before 1 November 1989, the will and the gifts under it remain valid: (NSW) Wills, Probate and Administration Act 1898 Sch 5 cl 4(1)(a). Instruments which previously could have been admitted as privileged wills may now be admitted under the dispensing powers contained in (NSW) Wills, Probate and Administration Act 1898 s 18A. In Queensland, the category of privileged testator was abolished in 2006: (QLD) Succession Amendment Act 2006 s 7 (validity of wills made before the commencement of the amendments on 1 April 2006 unaffected). The Northern Territory and Victorian probate Acts do not provide for privileged wills and testators. However, provisions relating to privileged wills and testators contained in the (NT) Wills Act 1938 (repealed) and (VIC) Wills Act 1958 (repealed) continue to apply to wills executed before the commencement of the new Acts: (NT) Wills Act 2000 s 5 (commenced 1/03/01) (VIC) Wills Act 1997 s 52 (commenced 20/07/98). 2 (ACT) Wills Act 1968 s 16 (SA) Wills Act 1936 s 11 (TAS) Wills Act 1992 s 9 (WA) Wills Act 1970 s 17. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 is substituted: repeal not to affect wills made before repeal. As to the formal requirements for making a valid will see [395-280]-[395-385]. As to the position in the Northern Territory, New South Wales and Victoria see note 1 above. 3 (ACT) Wills Act 1968 s 16

(SA) Wills Act 1936 s 11 (TAS) Wills Act 1992 s 9 (WA) Wills Act 1970 s 18. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 to be substituted: repeal not to affect wills made before repeal. As to the position in the Northern Territory, New South Wales and Victoria see note 1 above. 4 (ACT) Wills Act 1968 s 16(6).5 For the definition of actual military service see [395-525].6 (SA) Wills Act 1936 s 11. See also In the Estate of Watson (decd) (1986) 43 SASR 15 ; In the Estate of Crocker (decd) (1982) 30 SASR 321 .7 (TAS) Wills Act 1992 ss 3 (definition of privileged testatorand active service), 9. See also ibid s 26 (provision appears to cover persons specifically mentioned in definitions in legislation of other jurisdictions). The dispensing powers may apply to persons not specifically included in the category of privileged testators in Tasmania: see [395-300].8 (WA) Wills Act 1970 s 17. See also ibid s 18. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 to be substituted: repeal not to affect wills made before repeal.9 See [395-540].10 (ACT) Wills Act 1968 s 16(7) (WA) Wills Act 1970s 17. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 to be substituted: repeal not to affect wills made before repeal. There are no equivalent provisions in Queensland. In South Australia and Tasmania see (SA) Wills Act 1936 s 6 and (TAS) Wills Act 1992 s 8, which provide for the court (and in Tasmania for the Public Trustee in addition to the court: ibid s 7) to grant leave to minors to make wills in certain circumstances. As to the minimum age requirement for the making of a will generally see [395180]. As to the position in the Northern Territory, New South Wales and Victoria see note 1 above. 11 (ACT) Wills Act 1968 s 16(1) (SA) Wills Act 1936 s 11 (TAS) Wills Act 1992 s 9. In Western Australia, (WA) Wills Act 1970 s 6 provides that all property is disposable by means of any will made in accordance with or permitted by the Act and ibid s 4 defines property to include real and personal property. This provision to be replaced by (WA) Wills Amendment Bill 2006 cl 5 but substitution to remain substantially of the same effect. As to the position in the Northern Territory, New South Wales and Victoria see note 1 above. 12 See [395-300]. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation [395-525] Actual military service In most jurisdictions there is a category of privileged testator defined by reference to the phrase actual (or active) military service.1 The phrase has been judicially interpreted to apply to those persons serving with the armed forces in connection with military operations which are or have been taking place or are believed to be imminent.2 It extends to soldiers in training,3 soldiers working at home under stress of war, 4 soldiers ordered to hold themselves in readiness for mobilisation,5 personnel supporting those on active military service, such as chaplains, surgeons and nurses,6 and other military personnel.7 It is not necessary for there to be an official outbreak of war.8 A person may be in actual military service

when involved in a civil conflict in his or her own country.9 Prisoners of war have been held to be on actual military service for the purposes of privileged wills,10 as have civilians in circumstances where they are actually doing the job of a soldier.11 Soldiers in camp prior to embarkation for active combat have been held to be privileged testators,12 although this has not been extended to soldiers in barracks or otherwise engaged in routine duties during peacetime.13 The privilege has also been extended to soldiers on leave prior to embarkation,14 and to those on leave from the actual conflict.15 Notes 1 (ACT) Wills Act 1968 s 16(6)(a) (actual) (SA) Wills Act 1936 s 11 (active) (TAS) Wills Act 1992 s 3 (active) (WA) Wills Act 1970 s 17(a) (actual). The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 is substituted: repeal not to affect wills made before repeal. As to the position in the Northern Territory, New South Wales and Victoria see [395-520] note 1. 2 Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 , CA.3 Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 , CA (followed In the Will of Graham (decd) (1949) 67 WN (NSW) 23 ). See also Re Elliott (decd) [1917] VLR 322; (1917) 23 ALR 163 ; In the Estate of Crocker (decd) (1982) 30 SASR 321 (member of Air Force awaiting orders to embark for overseas able to make a valid unwitnessed will).4 Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 at 912 per Cohen LJ, at 913 per Denning LJ, CA (those working at their usual jobs and having additional defence responsibilities due to the war, such as the Home Guard); In the Estate of Rowson [1944] 2 All ER 36; (1944) 171 LT 70 (member of the Womens Auxiliary Air Force working in England). 5 Gattward v Knee [1902] P 99; (1902) 71 LJP 34 (soldier under orders to mobilise for active service); Re Kitchen; Kitchen v Allman (1919) 35 TLR 612 (soldier ordered to hold himself in readiness for service overseas made a valid privileged will while on final draft leave).6 Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 ; In the Estate of Stanley [1916] P 192; [1916-17] All ER Rep 352 ; Re Lord (decd) [1946] VLR 468; [1947] ALR 12 (member of Red Cross with Australian military forces).7 In the Estate of Rowson [1944] 2 All ER 36; (1944) 171 LT 70; Re Wingham (decd); Andrews v Wingham [1949] P 187 at 196; [1948] 2 All ER 908 ; In the Estate of Stanley [1916] P 192; [1916-17] All ER Rep 352 ; Re Lord (decd) [1946] VLR 468; [1947] ALR 12 .8 In the Will of Anderson (1958) 75 WN (NSW) 334 ; Re Gillespie (decd) [1968] QWN 1.9 Re Jones (decd) [1981] Fam 7; [1981] 1 All ER 1; [1981] 2 WLR 106.10 Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 , CA; Re Wakeling (decd) [1946] VLR 295; [1946] ALR 360 .11 In the Estate of Stanley [1916] P 192; [1916-17] All ER Rep 352 ; In the Application of White [1975] 2 NSWLR 125 .12 In the Estate of Spark (decd) [1941] P 115; [1941] 2 All ER 782 ; In the Will of Thompson (1910) 10 SR (NSW) 406; 27 WN (NSW) 113 ; In the Will of Vernon (decd) [1915] VLR 699; (1915) 21 ALR 477 ; Re Harvey (1918) SALR 169; In the Will of Anderson (1958) 75 WN (NSW) 334 ; Re Gillespie (decd) [1968] QWN 1 ; In the Estate of Crocker (decd) (1982) 30 SASR 321 .13 There being no events of military nature occurring at the time: see Drummond v Parish (1843) 3 Curt 522; 163 ER 812 ; Re Wingham (decd); Andrews v Wingham [1949] P 187; [1948] 2 All ER 908 at 913 per Denning LJ, CA (they are actually serving but are not in actual military service, because no military operations are afoot); Re Spann (decd) [1965] QWN 15 .14 Re Elliott (decd) [1917] VLR 322; (1917) 23 ALR 163 ; In the Goods of Spicer (decd); Spicer v Richardson [1949] P 441; [1949] 2 All ER 659. See also In the Estate of Lewis [1974] 2 NSWLR 323 .15 Re Lowe (decd) [1949] VLR 169; [1949] ALR 575 .

The paragraph below is current to 20 September 2007 [395-530] Mariners and seamen at sea In some jurisdictions, mariners and seamen, whilst at sea, are included in the category of privileged testators.1 These words have been judicially interpreted as applying to all merchant seamen of either sex2 serving on a ship, and have been extended to support staff including barmen3 and typists.4 The privilege applies to personnel on shore leave,5 but not to those awaiting orders to join the crew of a particular ship. 6 Personnel permanently stationed in harbours may also be privileged testators.7 The requirement that the privileged testator be at sea is satisfied if he or she is on shore leave in the course of a voyage8 or is under orders to join a particular vessel.9 However, where it is clear that the voyage in question has terminated, the privilege no longer applies.10 Notes 1 See [395-520].2 Re Rapleys Estate; Rapley v Rapley [1983] 3 All ER 248; [1983] 1 WLR 1069; (1983) 127 Sol Jo 394; In the Estate of Stanley [1916] P 192; [1916-17] All ER Rep 352 (female nurse). Compare In the Estate of Elphick (1944) 61 WN (NSW) 113 (civilian crew member of civil aircraft not a privileged testator within this category even though flying over ocean when plane attacked by hostile forces).3 In the Estate of Knibbs; Flay v Trueman [1962] 2 All ER 829 at 831; [1962] 1 WLR 852 per Wrangham J.4 In the Goods of Hale (decd) [1915] 2 IR 362 .5 In the Goods of Newland (decd) [1952] P 71; [1952] 1 All ER 841; [1952] 1 TLR 896; In the Goods of Wilson (decd); Wilson v Coleclough [1952] P 92; [1952] 1 All ER 852.6 Re Rapleys Estate; Rapley v Rapley [1983] 3 All ER 248; [1983] 1 WLR 1069; (1983) 127 Sol Jo 394. Wills made in contemplation of a particular voyage have been admitted as privileged wills although made on land prior to departure: In the Goods of MMurdo (1868) LR 1 P & D 540.7 In the Goods of MMurdo (1868) LR 1 P & D 540.8 In the Goods of Newland (decd) [1952] P 71; [1952] 1 All ER 841; [1952] 1 TLR 896.9 In the Goods of Hale (decd) [1915] 2 IR 362 . Compare Re Rapleys Estate; Rapley v Rapley [1983] 3 All ER 248; [1983] 1 WLR 1069; (1983) 127 Sol Jo 394 (privilege held not to apply to seaman between postings, having been discharged from one ship and not yet posted to another).10 In the Will of Bickley (decd) (1948) 49 SR (NSW) 94 (deceased a merchant seaman captured by hostile forces and interned in prisoner of war camp; statements to effect that he wished his mother to have his property in the event of his death not admissible as a privileged will as he was not at sea at the time they were made). See also In the Goods of Barnes (decd); Hodson v Barnes (1927) 136 LT 380 at 382 per Lord Merrivale P (deceased a ships pilot who lived on shore when not actually on duty; although pilot would be within concept of mariner at sea and this concept could be extended to preparing for voyage and going to and returning from vessel, on the facts of this case requirements not satisfied). The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation [395-535] Intention Due to the informal nature of privileged wills, special importance is placed on establishing that the testator intended his or her statements to operate as a testamentary disposition in the event of his or her death.1 The privileged testator does not, however, need to be aware that he or she is making a will.2 Intention is not adequately established where the person merely makes a statement indicating a future intention to make a disposition3 or expresses his or her understanding of what will happen to his or her property if a will is not made.4 Statements made in the course of casual conversation do not usually demonstrate the requisite intention and therefore are not admitted as privileged wills.5 Notes 1 (ACT) Wills Act 1968 s 16(1)

(TAS) Wills Act 1992 s 9 (WA) Wills Act 1970 s 18. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 is substituted: repeal not to affect wills made before repeal. There are no references to intention in the provisions dealing with privileged wills in South Australia. The category of privileged testator has been abolished in New South Wales and Queensland see [395-520] note 1. As to privileged wills in the Northern Territory and Victoria see [395-520] note 1. See also In the Goods of Spicer (decd); Spicer v Richardson [1949] P 441; [1949] 2 All ER 659 (oral statement by soldier accepted as valid will); Re Jones (decd) [1981] Fam 7; [1981] 1 All ER 1; [1981] 2 WLR 106; Re Wakeling (decd) [1946] VLR 295; [1946] ALR 360 ; In the Will of Thompson (1910) 10 SR (NSW) 406; 27 WN (NSW) 113 ; Re Lowe (decd) [1949] VLR 169; [1949] ALR 575 ; Re Taylor [1944] ALR 425 . Re Anderson (1916) 12 Tas LR 71 (will in writing); In the Estate of MacGillivray [1946] 2 All ER 301; (1946) 175 LT 383 (attestation by one witness). As to the general requirement of testamentary intention see [395-195]. 2 Re Lowe (decd) [1949] VLR 169; [1949] ALR 575 (privileged will valid where testator did not know he was making a will); Re Stable (decd); Dalrymple v Campbell [1919] P 7; [1918-19] All ER Rep 299 .3 Re Edgar (decd) [1919] VLR 683; (1919) 26 ALR 63; 41 ALT 80 .4 Re Donners Estate (1917) 34 TLR 138 ; Re Butcher (decd) [1920] VLR 166 .5 In the Estate of Knibbs; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852 . Compare In the Estate of MacGillivray [1946] 2 All ER 301; (1946) 175 LT 383 (attestation by one witness). See also Re Jones [1981] Fam 7 at 8 per Sir J Arnold P (where the testator was fatally wounded ... and entirety of the oral will was If I dont make it, make sure Anne gets all my stuff); Gattward v Knee [1902] P 99; (1902) 71 LJP 34 (will contained in a letter sent before testator died in a siege). The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation [395-540] Revocation A valid privileged will remains effective even after the testator loses the relevant privileged status.1 Subsequent marriage of the testator may, however, revoke a privileged will.2 A valid privileged will revokes a previous will even where the previous will was made in accordance with the usual formal requirements.3 In some jurisdictions specific provisions state that privileged wills may be revoked with informality similar to the way in which they may be created, provided the words of the testator, whether written or oral, clearly disclose his or her intention to revoke the privileged will.4 Notes 1 As a result unrevoked privileged wills have been admitted to probate many years after they were made and the testator has returned to civilian life: see, for example, In the Will of Thompson (1910) 10 SR (NSW) 406; 27 WN (NSW) 113 ; Re Booth; Booth v Booth [1926] P 118 ; Re Ward (decd) [1966] QWN 15 .2 In the Estate of Wardrop (decd) [1917] P 54; (1916) 115 LT 720. As to revocation by marriage generally see [395-600].3 Re Wakeling (decd) [1946] VLR 295; [1946] ALR 360 . As to voluntary revocation generally see [395-615]-[395-645].4 (ACT) Wills Act 1968 s 21(b) (TAS) Wills Act 1992 s 23(2)(d) (WA) Wills Act 1970s 19. The category of privileged testator will be abolished when this provision is repealed by the (WA) Wills Amendment Bill 2006 cl 16 and (WA) Wills Act 1970 s 17 to be substituted: repeal not to affect wills made before repeal.

There are no equivalent provisions in South Australia. The category of privileged testator has been abolished in New South Wales and Queensland: see [395-520] note 1. As to privileged wills in the Northern Territory and Victoria see [395-520] note 1. See also In the Estate of Gossage (decd); Wood v Gossage [1921] P 194; [1921] All ER Rep 107, CA; Re Mackie (decd); Public Trustee v Brown [1922] NZLR 651 .

Source

[Halsbury's Laws of Australia]

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(7) REVOCATION (A) General The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-595] General principles A will may be revoked either by operation of law 1 or voluntarily by the testator.2 Revocation may be either whole or in part.3 Revocation by operation of law occurs in relation to marriage or termination of marriage and does not require an intention by the testator to revoke.4 A testator may voluntarily revoke a will, provided the testator has testamentary capacity5 and the intention to revoke,6 by one of the following means: 7 (1) the making of another will or codicil executed according to the formal requirements;8 (2) a declaration in writing of an intention to revoke, executed according to the formal requirements for making a will;9 (3)

destruction of the will;10 or (4) in the Northern Territory, New South Wales and Victoria, by writing on or any other dealing with the will by the testator, or another person at the testators direction, that indicates to the courts satisfaction an intention to revoke the will. In Western Australia, revocation in writing will become determinable by the dispensing powers of the Supreme Court when the (WA) Wills Act 1970 is amended.11 A rebuttable presumption of revocation by destruction exists when a will known to have been in the possession of the testator is not found after death.12 The principles to be applied to determining revocation are that:13 (1) there must be a will or other testamentary document; (2) that document must be shown to revoke all former testamentary documents; (3) the presumption, that when a will cannot be produced it must have been destroyed, must be rebutted; (4) there must be evidence of the terms of the will or testamentary document; and (5) there must be evidence of due execution or that the deceased intended the document to constitute their will. The standard of proof required is on the balance of probabilities.14 Revocation also applies to grants of probate.15 Notes 1 As to revocation by operation of law see [395-600]-[395-610].2 As to voluntary revocation see [395-615]-[395-645].3 As to whether a will is revoked in whole or in part see [395-600]-[395-610] (revocation by operation of law) and [395-635] (voluntary revocation).4 As to revocation by marriage see [395-600]. As to revocation by termination of marriage see [395-610].5 In the Will of Thompson (1905) 22 WN (NSW) 74 ; In the Will of Richards [1911] VLR 284; (1911) 33 ALT 38 . As to testamentary capacity see [395-175]-[395-225].6 As to intention to revoke see [395615]. As to testamentary intention generally see [395-195].7 (ACT) Wills Act 1968 ss 20 (on marriage), 20A (on termination of marriage), 21 subject to ibid s 8B (on capacity) (NT) Wills Act 2000 ss 13, 15 (on termination of marriage) (NSW) Wills, Probate and Administration Act 1898 s 17; (NSW) Succession Act 2006 (opn on proc) s 11 (QLD) Succession Act 1981 s 13

(SA) Wills Act 1936 s 22 (TAS) Wills Act 1992 s 23 (VIC) Wills Act 1997 s 12 (WA) Wills Act 1970 s 15. 8 As to revocation by subsequent instrument see [395-620]. As to the formal requirements for a valid will see [395-280]-[395-385].9 As to revocation by declaration in writing see [395-625].10 As to revocation by destruction see [395-630].11 (NT) Wills Act 2000 s 13(f) (NSW) Wills, Probate and Administration Act 1898 s 17(3) (VIC) Wills Act 1997 s 12(2)(g). There are no equivalent provisions in the other jurisdictions. See also (WA) Wills Act 1970 s 36. When the (WA) Wills Amendment Bill 2006 cl 23 is enacted it will insert a new (WA) Wills Act 1970 s 36 (form of revocation now determinable by the dispensing powers of the Supreme Court pursuant to ibid s 32). 12 Bar-Mordecai v Rotman [2000] NSWCA 123; BC200002479 . See also Mortimer v David: Estate of Day (decd) [2005] NSWSC 1166; BC200510310 at [29] per Windeyer J citing Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828 ; Garland v Dillon [2005] TASSC 111; BC200509922 at [2] per Tennent J ; In the matter of Di Gregorio [2007] VSC 156; BC200703624 .13 Garland v Dillon [2005] TASSC 111; BC200509922 at [3] per Tennent J citing Cahill v Rhodes [2002] NSWSC 561; BC200203752 at [55] per Campbell J . See also In the matter of Di Gregorio [2007] VSC 156; BC200703624 at [12]-[15] per Hansen J . As to evidence see Barndon v Chelvanayagam [2006] WASC 118; BC200604626 at [12] per Heenan J .14 Public Trustee v Suwalska [2004] WASC 226; BC200407340 at [12] per Newnes M .15 Kantor v Vosahlo [2004] VSCA 235; BC200408810 ; Vosahlo v Kantor [2003] VSC 81; BC200301111 .

Source

[Halsbury's Laws of Australia]

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(B) Revocation by Operation of Law

(B) Revocation by Operation of Law The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-600] Revocation by marriage or personal relationship Marriage1 or, in some jurisdictions, registration of a personal relationship,2 of the testator will revoke a will3 unless: (1) the will was made in contemplation of a marriage;4 (2) the will was made in contemplation of a personal relationship;5 (3) the will was made in the exercise of a power of appointment and the property the subject of the appointment would not, in default of appointment, pass to the testators personal representatives.6 This rule also applies to privileged wills;7 or (4) at the time of the making of the will it appears from the terms of the will, or from those terms considered with the circumstances prevailing at that time, that the testator contemplated marriage and intended the will to take effect if the contemplated marriage eventuated.8 This provision also applies to personal relationships in some jurisdictions.9 In Western Australia, the (WA) Wills Act 1970 will be amended to require a will to be made in contemplation of the marriage, not expressed to be made plus, in the alternative, other evidence establishing that the will was made in contemplation of the marriage will be considered. In addition, these amendments will apply to wills of persons dying at or after commencement, whether the will was executed or made before, on or after the day of commencement, whereas the wills of persons dying before the day of commencement will be construed as if that section had not come into operation.10 Notes 1 The marriage must be a lawful marriage; a void marriage will not revoke a prior will: Mette v Mette (1859) 1 Sw & Tr 416; 164 ER 792 ; Warter v Warter (1890) 15 PD 152 ; Pilot v Gainfort [1931] P 103 (second marriage relying on presumption of death of first spouse). Compare Fitzpatrick v Neale (1893) 14 LR (NSW) B & P 11 (will voided by second marriage where first spouse was only presumed dead). However, a marriage which is merely voidable will not revoke a will unless it was made void while the testator was alive: Re Roberts (decd) [1978] 3 All ER 225; [1978] 1 WLR 653. As to the requirements of a valid marriage see family law [205-435][205-540].2 (TAS) Wills Act 1992 s 18(b).3 (ACT) Wills Act 1968 s 20 (NT) Wills Act 2000 s 14 (NSW) Wills, Probate and Administration Act 1898 s 15; (NSW) Succession Act 2006 (opn on proc) s 12 (QLD) Succession Act 1981 s 14. Ibid s 17 was amended by the (QLD) Succession Amendment

Act 2006 s 7 with effect from 1 April 2006. (QLD) Succession Act 1981 s 76(2) provides that the former ibid s 17 applies to wills made before 1 April 2006 when they relate to a marriage solemnised before 1 April 2006. (QLD) Succession Act 1981 s 76(3) provides that the new provision, ibid s 14, applies to wills made before 1 April 2006 that relate to marriages solemnised after 1 April 2006. (SA) Wills Act 1936 s 20 (TAS) Wills Act 1992 ss 18, 19 (VIC) Wills Act 1997 s 13 (WA) Wills Act 1970 s 14. When enacted (WA) Wills Amendment Bill 2006 cl 12 amends (WA) Wills Act 1970 s 14 by deleting expressed to be. As to revocation by marriage in the context of foreign wills see conflict of laws [85-1770]. 4 As to wills made in contemplation of marriage see [395-605].5 (TAS) Wills Act 1992 s 19(2)(a).6 Where the will also comprises property not subject to the power of appointment, revocation will occur only with respect to that property: In the Goods of Russell (1890) 15 PD 111.7 In the Estate of Wardrop (decd) [1917] P 54; (1916) 115 LT 720. As to the revocation of privileged wills see [395-540].8 (TAS) Wills Act 1992 s 19(1)(b).9 (TAS) Wills Act 1992 s 19(1)(b).10 (WA) Wills Act 1970 s 14(4) when amended by the (WA) Wills Amendment Bill 2006 cl 12. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-605] Wills made in contemplation of marriage or of a personal relationship A will expressed to be in contemplation of a particular marriage or of a particular personal relationship will not be revoked by that marriage1 or personal relationship.2 Whether a will is expressed to be in contemplation of a particular marriage is determined by reference to the will as a whole, and extrinsic evidence of facts that were known to the testator when the will was made may be taken into account.3 In the Northern Territory, New South Wales, Tasmania and Victoria, a will made, but not expressed to be made, in contemplation of a particular marriage will not be revoked by that marriage.4 In the Northern Territory, New South Wales, Tasmania and Victoria, a will expressed to be in contemplation of marriage generally will not be revoked by any marriage of the testator.5 Where a will has been made in contemplation of a particular marriage, it will not necessarily be invalid if the particular marriage does not take place.6 Whether a will is expressed to be in contemplation of a personal relationship is also determined by reference to extrinsic evidence of facts that were known to the testator when the will was made, may be taken into account.7 Notes 1 (ACT) Wills Act 1968 s 20(1) (NT) Wills Act 2000 s 14(3) (NSW) Wills, Probate and Administration Act 1898 s 15(2), 15(3); (NSW) Succession Act 2006 (opn on proc) s 12(3)

(QLD) Succession Act 1981 s 14(3) (SA) Wills Act 1936 s 20(2) (applies to wills made after 27 February 1969) (TAS) Wills Act 1992 ss 18, 19 (VIC) Wills Act 1997 s 13 (WA) Wills Act 1970 s 14. 2 (TAS) Wills Act 1992 s 19(2)(a).3 (ACT) Wills Act 1968 ss 12B (extrinsic evidence), 20(3)(b) (TAS) Wills Act 1992 s 19(1)(b) (WA) Wills Act 1970 s 14. When enacted (WA) Wills Amendment Bill 2006 cl 12 amends this section. Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 (will referring to wife held expressed to be in contemplation of a particular marriage). See also Pilot v Gainfort [1931] P 103 (my wife); Re Langston [1953] P 100; [1953] 1 All ER 928 (my fiancee; also considered my future wife); In the Will of Foss [1973] 1 NSWLR 180 (will made several days before marriage used expression to my wife, held not to have been revoked by marriage). Compare Re Taylor (decd) [1949] VLR 201; [1949] ALR 863 ; Public Trustee v Crawley [1973] 1 NZLR 695 (extrinsic evidence may not be taken into account). 4 (NT) Wills Act 2000 s 14(3) (NSW) Wills, Probate and Administration Act 1898 s 15(3) (applies to wills made after 1 November 1989); (NSW) Succession Act 2006 (opn on proc) s 12(3) (VIC) Wills Act 1997 s 13(3)(a). There are no equivalent provisions in the other jurisdictions. 5 (NT) Wills Act 2000 s 14(4) (NSW) Wills, Probate and Administration Act 1898 s 15(4) (applies to wills made after 1 November 1989); (NSW) Succession Act 2006 (opn on proc) s 12(4) (VIC) Wills Act 1997 s 13(3)(b). 6 Re Natusch [1963] NZLR 273 .7 (TAS) Wills Act 1992 s 19(2)(b). The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-610] Revocation by termination of marriage or termination of personal relationship In the Australian Capital Territory, the Northern Territory, New South Wales, Queensland, South Australia and Victoria, termination1 of the testators marriage revokes all beneficial gifts that favour the former spouse, so that those beneficial entitlements will take effect as if the former spouse predeceased the testator, and also terminates any grants or appointments conferred on the former spouse.2 Exceptions to this rule occur where: (1)

the benefit, grant or appointment is contained in a will or codicil made subsequent to the termination of the marriage and the will or codicil shows no intention to revoke;3 (2) it appears that the testator intended the benefit, grant or appointment to have effect despite the termination of the marriage;4 (3) the benefit, grant or appointment was made in accordance with a contract between the testator and the former spouse;5 or (4) the affected provision is for repayment of a debt or liability to the former spouse or his or her estate.6 In Tasmania, termination of the testators marriage or personal relationship, revokes the entire will unless the will is expressed to be,7 or appears to be,8 or expressly negatives the statutory revocation9 in contemplation of termination of that marriage. 10 Notes 1 The termination of marriage occurs when a divorce order takes effect under (CTH) Family Law Act 1975 s 55. The definition of divorce includes: (1) a divorce order; (2) a decree of nullity of marriage; or (3) proceedings for a declaration as to the validity of (a) a marriage, (b) a divorce, or (c) an annulment of marriage: ibid s 4. Annulment does not involve the termination of a marriage but simply a declaration that a purported marriage is in fact void: ibid s 4. Relevant legislation also provides for the termination of marriage to occur when a decree absolute of dissolution is made under the (CTH) Family Law Act 1975 where an annulment is made in accordance with a foreign law and the annulment is recognised in Australia under the (CTH) Family Law Act 1975: (ACT) Wills Act 1968 s 20A(4)

(NT) Wills Act 2000 s 15(2) (NSW) Wills, Probate and Administration Act 1898 s 15A(5); (NSW) Succession Act 2006 (opn on proc) s 13(6) (referring to annulment or divorce, each by the Family Court of Australia or under a law of a place outside Australia if recognised in Australia under the (CTH) Family Law Act 1975) (QLD) Succession Act 1981 s 15(5) (annulment or divorce, each by the Family Court of Australia or under a law of a place outside Australia if recognised in Australia under the (CTH) Family Law Act 1975) (SA) Wills Act 1936 s 20A(3) (VIC) Wills Act 1997 s 14. There is, currently, no equivalent provision in Western Australia. The (WA) Wills Amendment Bill 2006 cl 13 when enacted, inserts (WA) Wills Act 1970 s 14A which provides that the ending of the testators marriage will revoke a will except where there appears a contrary intention in the will or there is other evidence establishing that intention. The amendment applies when a marriage ends on or after the day of commencement whether the will was executed or made before commencement, whereas it does not apply where a marriage ends before that commencement. As to the position in Tasmania see note 7 below. As to dissolution of marriage see family law [205-910]-[205-990]. As to revocation by termination of marriage in the context of foreign wills see conflict of laws [85-1755]. 2 (ACT) Wills Act 1968 s 20A (NT) Wills Act 2000 s 15 (NSW) Wills, Probate and Administration Act 1898 s 15A; (NSW) Succession Act 2006 (opn on proc) s 13 (QLD) Succession Act 1981 s 15 (SA) Wills Act 1936 s 20A (VIC) Wills Act 1997 s 14. In Western Australia (WA) Wills Amendment Bill 2006 cl 13 when enacted, inserts (WA) Wills Act 1970 s 14A. For the position in Tasmania see note 10 below. In the Australian Capital Territory and New South Wales, revocation of a former spouses entitlement will not cause a class of beneficiaries under the will to close any earlier than if the entitlement had not been revoked: (ACT) Wills Act 1968 s 20A(1)(c) (NSW) Wills, Probate and Administration Act 1898 s 15A(1)(c) (QLD) Succession Act 1981 s 15. As to the class closing rules generally see perpetuities and accumulations [310-160]. 3 (ACT) Wills Act 1968 s 20A(2)(b) (NSW) Wills, Probate and Administration Act 1898 s 15A(2)(b); (NSW) Succession Act 2006 (opn on proc) s 13(3)

(QLD) Succession Act 1981 s 15(3) (SA) Wills Act 1936 s 20A(2). There are no equivalent provisions in the other jurisdictions. As to intention to revoke see [395615]. In Western Australia (WA) Wills Amendment Bill 2006 cl 13 when enacted, inserts (WA) Wills Act 1970 s 14A(2). 4 (ACT) Wills Act 1968 s 20A(2)(a) (any evidence of intention is admissible, including statements by the testator) (NT) Wills Act 2000 s 15(4) (NSW) Wills, Probate and Administration Act 1898 s 15A(2)(a) (any evidence of intention is admissible, including statements by the testator); (NSW) Succession Act 2006 (opn on proc) s 13(2) (QLD) Succession Act 1981 s 15(3) (SA) Wills Act 1936 s 20A(2)(b) (consideration only of terms of the will) (VIC) Wills Act 1997 s 14(2) (consideration only of terms of the will). In Western Australia (WA) Wills Amendment Bill 2006 cl 13 when enacted, inserts (WA) Wills Act 1970 s 14A(2). 5 (SA) Wills Act 1936 s 20A(2)(a). There are no equivalent provisions in the other jurisdictions. As to contracts relating to wills generally see [395-100]-[395-120]. 6 (ACT) Wills Act 1968 s 20A(3)(b) (NSW) Wills, Probate and Administration Act 1898 s 15A(3)(b); (NSW) Succession Act 2006 (opn on proc) s 13(5)(b). There are no equivalent provisions in the other jurisdictions. 7 (TAS) Wills Act 1992 s 21(1)(b), 21(1A)(b).8 (TAS) Wills Act 1992 s 21(1)(c), 21(1A)(c).9 (TAS) Wills Act 1992 s 21(1)(a), 21(1A)(a).10 (TAS) Wills Act 1992 ss 20, 21 (dissolution only referred to). There are no equivalent provisions in the other jurisdictions.

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(C) Voluntary Revocation The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-615] Intention to revoke For a will to be revoked voluntarily by the testator there must be an intention to revoke1 and the intention to revoke must be accompanied by an act of revocation. 2 The party seeking to establish revocation bears the onus of proving it and revocation will not be presumed in the absence of proof.3 A presumption as to the intention of the testator based on a change in circumstances between the making of the will and the death of the testator is not sufficient to revoke a will.4 Where the testator has done or directed an act that would amount to revocation if there was an intention to revoke, an intention to revoke will be presumed, although this presumption may in turn be rebutted by further evidence.5 Intention to revoke may be evidenced by declarations of the testator6 or inferred from the nature of the act done. 7 An act that damages or destroys a will is not enough in itself to revoke a will, without an intention to revoke that will.8 Notes 1 (ACT) Wills Act 1968 s 21( subject to ibid ss 8B (minors), 16 (privileged wills), 20 (marriage), 21 (divorce)) (NT) Wills Act 2000 s 13 (NSW) Wills, Probate and Administration Act 1898 s 17; (NSW) Succession Act 2006 (opn on proc) s 11 (QLD) Succession Act 1981 s 13 (SA) Wills Act 1936 s 22 (TAS) Wills Act 1992 s 23 (VIC) Wills Act 1997 s 12 (WA) Wills Act 1970 s 15. In Western Australia (WA) Wills Amendment Bill 2006 cl 13 when enacted, subsititutes (WA) Wills Act 1970 s 15. To form the intention to revoke, the testator must have testamentary capacity: In the Will of Thompson (1905) 22 WN (NSW) 74 . 2 Cleoburey v Beckett (1851) 14 Beav 583; 51 ER 408; Cheese v Lovejoy (1877) 2 PD 251 at 253; 37 LT 295 per James LJ. As to acts of revocation see [395-620] (subsequent instrument), [395-625] (declaration in writing) and [395-630] (destruction of will). See further The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [2130]-

[2140] and Pr 20.15, 20.20. As to testamentary revocation in the context of foreign wills see conflict of laws [85-1745].3 Harris v Berrall (1858) 1 Sw & Tr 153; 164 ER 671; Sprigge v Sprigge (1868) LR 1 P & D 608; 19 LT 462; 17 WR 80; Benson v Benson (1870) LR 2 P & D 172; [1861-73] All ER Rep Ext 1707; (1870) 23 LT 709; Lippe v Hedderwick (1922) 31 CLR 148 .4 (NSW) Wills, Probate and Administration Act 1898 s 16; (NSW) Succession Act 2006 (opn on proc) s 11(2) (SA) Wills Act 1936 s 21 (TAS) Wills Act 1992 s 22. There is no express general provision in the Australian Capital Territory and Western Australia that a presumption of intention on the ground of alteration of circumstances will not amount to revocation. There is an express provision in the Australian Capital Territory to the effect that a change relating to the property comprising the disposition will not produce revocation: (ACT) Wills Act 1968 s 23. In the Northern Territory, South Australia and Victoria, the construction of a will is not affected if there is a change in the testators domicile after executing the will: (NT) Wills Act 2000 s 32 (SA) Wills Act 1936 s 23 (VIC) Wills Act 1997 s 37. 5 Re Wright [1970] QWN 70; In the Will of Boyd (decd); Ex parte Whelan (1959) SR (NSW) 369; 76 WN (NSW) 515 ; Onions v Tyrer (1716) 1 P Wms 343; 24 ER 418 ; Burtenshaw v Gilbert (1774) 1 Cowp 49 at 52; 98 ER 961 at 963 per Lord Mansfield.6 Clarke v Scripps (1852) 2 Rob Eccl 563; 163 ER 1414 at 1416 per Sir J Dodson.7 Aoun v Clark [2000] NSWSC 274; BC200001597 at [29] per Young J (will altered by typewritten words and clauses struck out by pen then sent to solicitor assumed to be instructions for new will was evidence of revocation); Clarke v Scripps (1852) 2 Rob Eccl 563; 163 ER 1414 ; North v North (1909) 25 TLR 322.8 Bar-Mordecai v Rotman [2000] NSWCA 123; BC200002479 . The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-620] Revocation by subsequent instrument A testator may revoke a will expressly or impliedly, by executing a subsequent will or codicil in accordance with the requirements for making a testamentary instrument.1 The formal requirements may be dispensed with in certain circumstances.2 If the subsequent instrument contains an express revocation clause in general terms, it will have the effect of revoking all testamentary instruments previously executed, including testamentary appointments.3 An express revocation clause in general terms, however, is not conclusive proof of intention4 and it may be shown that the clause was inserted by mistake and without the approval of the testator.5 The words last will or last and only will do not necessarily operate to revoke all prior testamentary instruments.6 It must be clear from the subsequent instrument that this was the testators intention,7 either expressly or because the two wills are incapable of

operating at the same time.8 Inconsistencies between wills when a later one does not contain a revocation clause may lead to a former will being revoked either partially or totally.9 If a later will deals with the entire property in question then all former testamentary instruments are impliedly repealed.10 A subsequent will dealing with the whole of the testators estate will, by implication, revoke all earlier wills regardless of whether it contains an express revocation clause.11 Revocation will also be implied where a later will covers practically the same ground as an earlier will and the language of the later will shows an intention to dispose of the property in a manner different to the earlier will.12 Testamentary instruments that are only partly inconsistent will, in the absence of express revocation, be read together as constituting the will of the testator.13 Where there is an inconsistency, earlier instruments will be revoked by later instruments, but only to the extent necessary to give effect to the intention of the testator.14 When a person revokes a will with the intention of creating another will then the presumption that the former will is revoked is conditional upon the latter will coming into effect. If it does not then the former will remains in force. This doctrine is known as dependent relative revocation.15 It also applies when revocation is reliant upon the future existence of a fact other than the creation of another will.16 The doctrine gives way to any contrary intentions of the testator. 17 When a second will unconditionally and expressly revokes a former will, that former will is not revived by the destruction of that second will. Such destruction creates an intestacy.18 Revocation by subsequent instrument may be made by an audio-tape.19 Notes 1 (ACT) Wills Act 1968 s 21(b)(i) (NT) Wills Act 2000 s 13(c) (NSW) Wills, Probate and Administration Act 1898 s 17(2); (NSW) Succession Act 2006 (opn on proc) s 11(1)(c) (QLD) Succession Act 1981 s 13(c) (SA) Wills Act 1936 s 22(b) (TAS) Wills Act 1992 s 23(2)(a) (VIC) Wills Act 1997 s 12(2)(da) (WA) Wills Act 1970 s 15(b). In Western Australia (WA) Wills Amendment Bill 2006 cl 14 when enacted, inserts new (WA) Wills Act 1970 s 15(a), 15(b). As to the requirements for executing a testamentary instrument see [395-175]-[395-225] (capacity and intention) and [395-280]-[395-385] (formal requirements). 2 As to judicial dispensing powers see [395-300].3 Sotheran v Dening (1881) 20 Ch D 99 , CA. As to powers of appointment see further K Mason and L G Handler, Wills Probate and Administration Service New South Wales, Butterworths, Sydney, 1985 to current (looseleaf), Vol 1, [10,053.14]. As to intention to revoke see [395-615].4 Re Will of Mills [1968] 2 NSWR 393; (1968) 70 SR (NSW) 36; 88 WN (Pt 2) (NSW) 74 , CA(NSW); Re Tait (decd) [1957] VR 405; [1957] ALR 862 ; Re Rich (decd) [1947] SASR 98 ; Denny v Barton (1818) 2 Phillim 575; 161

ER 1236 at 1237 per Sir John Nicholl; OLeary v Douglass (1878) 1 LR Ir 45.5 Re Luck (decd) [1977] WAR 148 ; In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6 ; In the Goods of Oswald (1874) LR 3 P & D 162; 30 LT 344; In the Goods of Moore [1892] P 378; (1892) 62 LJP 9; Re Marklew v Turner (1900) 17 TLR 10; In the Goods of Brown (decd) [1942] P 136; [1942] 2 All ER 176 ; In the Estate of Cocke (decd) [1960] 2 All ER 289; [1960] 1 WLR 491 . As to mistake see [395-225]. As to the testators knowledge and approval of the contents of the will see [395-200].6 As to last will see In the Will of Cullen (1907) 7 SR (NSW) 29; 24 WN (NSW) 23 ; Gair v Bowers (1909) 9 CLR 510 at 522; [1910] VLR 538; (1909) 15 ALR 494 per Griffith J; Cutto v Gilbert (1854) 9 Moo PCC 131; 14 ER 247 . As to last and only will see: Lemage v Goodban (1865) LR 1 P & D 57; [1861-73] All ER Rep Ext 1364; Simpson v Foxon [1907] P 54; (1906) 76 LJP 7; 96 LT 473 .7 Re Goodes [1922] SASR 180 ; Re Buckley (decd) [1952] VLR 107; [1952] ALR 317 ; Re Day; Kavanagh v Day (1907) 7 SR (NSW) 484; 24 WN (NSW) 117 ; In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6 ; Pepper v Pepper (1870) IR 5 Eq 85; Dempsey v Lawson (1877) 2 PD 98; [1874-80] All ER Rep 296; (1877) 36 LT 515 ; Re Brennan [1932] IR 633.8 Estate of Collins [2000] NSWSC 407; BC200002556 . See In the matter of Blackburne (decd) [2004] VSC 316; BC200405500 where an envelope initially containing a will from a solicitor had written on it Will receipt. Unsigned copy only (and revoked on 23/1/2000 with P Stratton, solicitor).9 Estate of Collins [2000] NSWSC 407; BC200002556 .10 Estate of Collins [2000] NSWSC 407; BC200002556 .11 Palmers Goods (decd); Palmer v Peat (1889) 58 LJP 44 ; Cadell v Wilcocks [1898] P 21; (1897) 78 LT 83; 14 TLR 100 ; In the Estate of Bryan (decd) [1907] P 125; (1907) 76 LJP 30; 96 LT 584 .12 Dempsey v Lawson (1877) 2 PD 98; [1874-80] All ER Rep 296; (1877) 36 LT 515 .13 In the Will and Codicil of Christie (1883) 9 VLR (IP & M) 46; In the Will of Jackson; Jackson v Jackson (1868) 7 SCR (NSW) Eq 28; Re Budd (decd) (1862) 3 Sw & Tr 196; 164 ER 1249 ; Birks v Birks (1865) 4 Sw & Tr 23; 164 ER 1423 ; Lemage v Goodban (1865) LR 1 P & D 57; [1861-73] All ER Rep Ext 1364; In the Goods of Fenwick (1867) LR 1 P & D 319; In the Goods of Griffith (1872) LR 2 P & D 457; 26 LT 780.14 Re Goodes [1922] SASR 180 ; Doe d Evers v Ward (1852) 18 QB 197; Dempsey v Lawson (1877) 2 PD 98 at 107; [1874-80] All ER Rep 296; (1877) 36 LT 515 per Sir J P Hannen.15 Aoun v Clark [2000] NSWSC 274; BC200001597 at [29] per Young J .16 Baird v Huang: Estate of Williams [2001] NSWSC 409; BC200102483 .17 Aoun v Clark [2000] NSWSC 274; BC200001597 at [29] per Young J .18 Fischer v Forman [2003] NSWSC 417; BC200302415 . See also In the matter of Denger (decd) [2002] TASSC 70; BC200205468 ; In the Estate of Crawford (decd) (2004) 90 SASR 119; 237 LSJS 37; [2004] SASC 370; BC200407840 .19 Treacey v Edwards (2000) 49 NSWLR 739; [2000] NSWSC 846; BC200005014 . The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-625] Revocation by declaration in writing A will may be revoked by a declaration in writing of an intention to revoke,1 executed in accordance with the requirements for making a will.2 The formal requirements may be dispensed with in certain circumstances.3 Notes 1 As to intention to revoke see [395-615]. As to what constitutes a declaration in writing see, for example, Re Hicks Goods (1869) LR 1 P & D 683 (memorandum on the will); Re Durance (1872) LR 2 P & D 406; 26 LT 983 (letter directing testators brother to obtain his will and burn it unread); Thompson v Simpson (1881) 50 LJ Ch 461 (settlement); Re Spracklans Estate [1938] 2 All ER 345 (letter to bank manager); Re Eyres Goods [1905] 2 IR 540 (letter to daughter); In the Will and Estate of Johnston (decd) [1912] VLR 55; (1911) 18 ALR 7; 33 ALT 151 .2 (ACT) Wills Act 1968 s 21(b)(ii)

(NT) Wills Act 2000 s 13(d) (NSW) Wills, Probate and Administration Act 1898 s 17(3)(a); (NSW) Succession Act 2006 (opn on proc) s 11(1)(d) (QLD) Succession Act 1981 s 13(d), 13(e)(ii) (SA) Wills Act 1936 s 22(c) (TAS) Wills Act 1992 s 23(2)(b) (VIC) Wills Act 1997 s 12(2)(e) (WA) Wills Act 1970 s 15(c). In Western Australia the (WA) Wills Amendment Bill 2006 cl 14, when enacted, inserts a new (WA) Wills Act 1970 s 15(b). As to the requirements for executing a testamentary instrument see [395-175]-[395-225] (capacity and intention) and [395-280]-[395-385] (formal requirements). 3 As to the judicial dispensing powers see [395-300]. See also (NSW) Wills, Probate and Administration Act 1898 s 17(3)(c) (requires only some writing on the will or other dealing with the will by the testator, or by someone else in the testators presence and at the testators direction, made with the intention of revoking); (NSW) Succession Act 2006 (opn on proc) s 11(1)(f). (WA) Wills Act 1970 s 36 (writing declaring intention to revoke that does not comply with formal requirements will still have effect provided the court is satisfied that this was the testators intention). This provision will be repealed by the (WA) Wills Amendment Bill 2006 cl 23 when enacted. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-630] Revocation by destruction A will may be revoked by the testator, or by another person in the presence, and at the direction, of the testator, by burning, tearing or otherwise destroying the will with the intention to revoke it.1 The act of destruction must be sufficient to destroy the essence of the will, although not necessarily the material of which it is composed.2 For the destruction to be effective, the complete action which the testator intended must be carried out.3 The act must be one of physical destruction, symbolic destruction is not enough. 4 Where only part of a will is destroyed, and that part does not affect the validity of the will as a testamentary instrument, only that part of the will is revoked unless that part was so important as to raise the presumption that the rest cannot have been intended to remain.5 Regardless of an act of damage or destruction, no will is revoked by an act of destruction unless committed together with the intention to revoke.6 Notes 1 (ACT) Wills Act 1968 s 21(b)(iii) (NT) Wills Act 2000 s 13(e) (NSW) Wills, Probate and Administration Act 1898 s 17(3)(b); (NSW) Succession Act 2006 (opn on proc) s 11(1)(d)

(QLD) Succession Act 1981 s 13(e)(i) (SA) Wills Act 1936 s 22(d) (TAS) Wills Act 1992 s 23(2)(c) (VIC) Wills Act 1997 s 12(2)(f) (WA) Wills Act 1970 s 15(d). As to intention to revoke see [395-615]. Where a codicil confirms a will and the will is destroyed but not the codicil, the will is revoked but any special bequest in the codicil is not: Re Formanink Estate (1963) 44 WWR (NS) 686. 2 Price v Powell (1858) 3 H & N 341; 157 ER 502; Hobbs v Knight (1838) 1 Curt 768 at 779-80; 163 ER 267 per Sir Herbert Jenner. See, for example, In the Goods of Gullan (decd) (1858) 1 Sw & Tr 23; 164 ER 612 (testators signature cut out); In the Goods of Morton (1887) 12 PD 141 (testators signature scratched out with knife); In the Will of Murphy (decd) (1892) 18 VLR 786 (witnesses signatures cut out). Compare Re Godfrey (1893) 69 LT 22 (no revocation where signature scratched with knife but still legible); Re Taylor (1890) 63 LT 230 (no revocation where accidental cutting through of witnesses signatures); Lippe v Hedderwick (1922) 31 CLR 148 (no revocation when under mistaken belief as to the effect of the will; see further [395-640]); Stephens v Taprell (1840) 2 Curt 458 at 465; 163 ER 473; In the Will and Codicil of Sakzewski [1943] QWN 38 ; Estate of Shepherd (1982) 29 SASR 247 (will not revoked by being struck through with pen). See, however, (NSW) Wills, Probate and Administration Act 1898 s 17(3)(c) (requires only some writing on the will or other dealing with the will by the testator, or by someone else in the testators presence and at the testators direction, done with the intention of revoking). 3 Doe d Perkes v Perkes (1820) 3 B & Ald 489; 106 ER 740.4 Cheese v Lovejoy (1877) 2 PD 251; 37 LT 295.5 Clarke v Scripps (1852) 2 Rob Eccl 563; 163 ER 1414 ; Re White (1879) 3 LR Ir 413; Leonard v Leonard [1902] P 243 at 248; (1902) 87 LT 145 (remaining sheets unintelligible without destroyed sheets). See, for example, Re Woodward (1871) LR 2 P & D 206 (will not revoked by part of commencement being torn off); Re Talbot [1925] SASR 100 (clause containing legacies torn off, only those legacies revoked); Re Leach (1890) 63 LT 111 (clause appointing executors). See also [395-635].6 Bar-Mordecai v Rotman [2000] NSWCA 123; BC200002479 . The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-635] Partial revocation Voluntary revocation may be of the whole or only part of a will. 1 Where an act of revocation may extend either to the whole or only part of the will, the extent of revocation is determined by reference to the intention of the testator.2 Where partial revocation renders the remainder unintelligible, the whole of the will is revoked.3 Notes 1 (ACT) Wills Act 1968 s 21 (NT) Wills Act 2000 s 13

(NSW) Wills, Probate and Administration Act 1898 s 17; (NSW) Succession Act 2006 (opn on proc) s 11(1) (QLD) Succession Act 1981 s 13 (SA) Wills Act 1936 s 22 (TAS) Wills Act 1992 s 23 (VIC) Wills Act 1997 s 12 (WA) Wills Act 1970 s 15. 2 Clarke v Scripps (1852) 2 Rob Eccl 563; 163 ER 1414 ; Re Woodward (1871) LR 2 P & D 206; In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (Pt 1) (NSW) 6 .3 Leonard v Leonard [1902] P 243; (1902) 87 LT 145 . The paragraph below is current to 20 September 2007 [395-640] Mistaken and conditional revocation A revocation made upon a mistaken assumption will be considered not to have been intended by the testator, except on the condition of the assumption being correct, and will therefore be rendered ineffective.1 The mistake may be of fact2 or law.3 Dependent relative revocation occurs when a revocation is made relative to another disposition that has been made or is intended to be made so that the revocation will not be intended unless the other disposition takes effect.4 If the other disposition fails to take effect for any reason then the revocation will be inoperative if the court determines that the testator intended to revoke the will only if the other disposition was effective.5 The revocation may apply distributively, that is, to some clauses of the will and not others.6 Notes 1 Re Farris (decd); Goddard v Overend (No 2) [1911] 1 IR 469 ; Lippe v Hedderwick (1922) 31 CLR 148 .2 Campbell v French (1797) 3 Ves 321; 30 ER 1033 (belief that donee was dead); Doe d Evans v Evans (1839) 10 Ad & El 228; 113 ER 88 (belief that person died without issue); Thomas v Howell (1874) LR 18 Eq 198 (belief that estate of specified value).3 Scott v Scott (1859) 1 Sw & Tr 258; 164 ER 719; Beardsley v Lacey (1897) 67 LJP 35; 78 LT 25; 14 TLR 140 (belief that will no longer of use); Lord Thynne v Stanhope (1822) 1 Add 52; 162 ER 19; Giles v Warren (1872) LR 2 P & D 401; 26 LT 780; James v Shrimpton (1876) 1 PD 431; In the Goods of Thornton (1889) 14 PD 82 (belief that will inoperative); Clarkson v Clarkson (1862) 2 Sw & Tr 497; 164 ER 1090 (belief that will already revoked); In the Estate of Southerden; Adams v Southerden [1925] P 177; (1925) 133 LT 505 (mistake as to effect of intestacy); Re Hampel (decd) [1949] SASR 232 ; Re Luck (decd) [1977] WAR 148 .4 See, for example, Ex parte Earl of Ilchester (1803) 7 Ves 348 at 372-3; 32 ER 142 at 151 per Lord Alvanley CJ; In the Will of Hunt (decd) (1890) 16 VLR 748; 12 ALT 85 ; Re Irvine [1919] 2 IR 485; Re Lindrea (decd) [1953] VLR 168; [1953] ALR 138 ; Re Riordan (decd) [1961] VR 271 ; Re Addison (1964) 108 Sol Jo 504; Re Will of Mills [1968] 2 NSWR 393; (1968) 70 SR (NSW) 36; 88 WN (Pt 2) (NSW) 74 , CA(NSW); In the Will of Mills [1969] 1 NSWR 208; (1968) 88 WN (Pt 1) (NSW) 573 .5 Powell v Powell (1866) LR 1 P & D 209; [1861-73] All ER Rep 362 ; Re Rich (decd) [1947] SASR 98 ; Re Tait (decd) [1957] VR 405; [1957] ALR 862 ; Re Finney [1934] VLR 256; [1934] ALR 351 ; Re Hampel (decd) [1949] SASR 232 ; Re Lindrea (decd) [1953] VLR 168; [1953] ALR 138 ; Lippe v Hedderwick (1922) 31 CLR 148 .6 Re Will of Mills [1968] 2 NSWR 393; (1968) 70 SR (NSW) 36; 88 WN (Pt 2) (NSW) 74 , CA(NSW); In the Will of Mills [1969] 1 NSWR 208; (1968) 88 WN (Pt 1) (NSW) 573 . See also Fischer v Forman [2003] NSWSC 417; BC200302415 ; Baird v Huang: Estate of Williams [2001] NSWSC 409; BC200102483 ; Aoun v Clark [2000] NSWSC 274; BC200001597 at [29] per Young J .

The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation [395-645] Missing wills If a will is missing at the time of the testators death and it appears the will was last in the possession of the testator, it is presumed, in the absence of circumstances suggesting otherwise, that the testator destroyed the will with the intention of revoking it.1 This presumption may be rebutted by clear and satisfactory evidence.2 Probate may be granted of a lost will that has not been revoked upon proof of the wills due execution, attestation and contents.3 Notes 1 Lillie v Lillie (1829) 3 Hag Ecc 184; 162 ER 1124 ; In the Goods of Brown (decd) (1858) 1 Sw & Tr 32; 164 ER 615; Eckersley v Platt (1866) LR 1 P & D 281; 36 LJP & M 7 sub nom Ekersley v Platt (1866) 15 LT 327; Keen v Keen (1873) LR 3 P & D 105; 29 LT 247; Allan v Morrison [1900] AC 604; (1900) 69 LJPC 141 ; Re Sykes; Drake v Sykes (1907) 25 TLR 747, CA; McCauley v McCauley (1910) 10 CLR 434; 16 ALR 619 ; In the Will of Podger (decd) [1957] VR 275; [1957] ALR 842 ; Re Riordan (decd) [1961] VR 271 ; Curley v Duff (1985) 2 NSWLR 716 . The presumption also applies where it appears that a duplicate of the missing will was in the possession of the testator: Jones v Harding (1887) 58 LT 60; Paige v Brooks (1896) 75 LT 455. The presumption is not so strong where there were two duplicates in the testators possession and only one is missing or destroyed: Pemberton v Pemberton (1807) 13 Ves 290; 33 ER 303 at 310 per Lord Erskine LC. As to revocation by destruction see [395-630]. As to intention to revoke see [395-615].2 Eckersley v Platt (1866) LR 1 P & D 281; 36 LJP & M 7 sub nom Ekersley v Platt (1866) 15 LT 327; McCauley v McCauley (1910) 10 CLR 434; 16 ALR 619 ; Re Pepperill (decd) [1927] St R Qd 154 ; Re Horrocks; Elders Trustee and Executor Co Ltd v Ellershaw [1940] SASR 359 . See, for example, Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828 ; In the Estate of Szylowicz (decd) (1978) 19 SASR 263 (evidence that testator could not have revoked the will); Whitely v King (1864) 17 CBNS 756; 144 ER 303 (recent declarations by testator); Keen v Keen (1873) LR 3 P & D 105; 29 LT 247; Re Gregory [1934] QWN 43 ; (evidence of goodwill or adherence to will); Sugden v Lord St Leonards (1876) 1 PD 154; [187480] All ER Rep 21 ; Re Fleischmann (decd) [1952] QWN 36 (content of will itself); Lippe v Hedderwick (1922) 31 CLR 148 ; In the Will of Broomhead [1947] VLR 319; [1947] ALR 359 (evidence that the will was destroyed on the basis of a mistake or dependent relative revocation).3 Brown v Brown (1858) 8 El & Bl 876; 120 ER 327 ; Sugden v Lord St Leonards (1876) 1 PD 154; [1874-80] All ER Rep 21 ; In the Goods of Crandon (1901) 84 LT 330; 17 TLR 341; Re Spain (1915) 31 TLR 435. In the absence of written evidence, proof must be beyond all reasonable doubt: Harris v Knight (1890) 15 PD 170 at 179; 62 LT 507; 6 TLR 234 per Lindley LJ, CA; In the Estate of Wipperman; Wissler v Wipperman [1955] P 59; [1953] 1 All ER 764; [1953] 2 WLR 706 ; In the Estate of MacGillivray [1946] 2 All ER 301; (1946) 175 LT 383 , CA. See also Re Hannah (decd); Hannah v Hannah [1954] NZLR 836 (evidence by solicitor of due execution). See also (SA) Probate Rules 2004 R 68.

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(8) ALTERATIONS The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-700] Due execution required Any alteration, including an obliteration or interlineation, made in a will after the will has been executed will not be valid or have any effect unless the alteration is duly executed, except where the words or effect of the will are no longer apparent as a result of the alteration.1 An alteration will be duly executed if executed in accordance with the requirements for making a will.2 An alteration will be deemed to be duly executed if the signature of the testator and the subscription of the witnesses are made:3 (1) in the margin or some other part of the will opposite or in proximity to the alteration; or (2) at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will. The initials of the testator and witnesses will be sufficient in place of signatures,4 but where the testator and witnesses run a dry pen over their signatures to the will this will not be sufficient.5 Due execution is not required where the words or effect of the will are no longer apparent after the alteration.6 Where this is the case, the altered or obliterated words will be revoked and will not form part of the grant of probate.7 Whether the words or effect of a will are apparent is determined by inspection of the instrument and not by extrinsic evidence.8 Words are apparent if they can be read by natural means, including being read by an expert using a magnifying glass or a microscope.9 Words are not apparent where they can only be read by physical interference with the document or by making a new document.10 An unattested alteration may be validated by a subsequent duly executed codicil provided: (1)

the codicil refers to the alteration;11 and (2) the alteration does not appear, from the codicil or otherwise, to be deliberative.12 Notes 1 (ACT) Wills Act 1968 s 12(1) (NT) Wills Act 2000 s 16(1) (NSW) Wills, Probate and Administration Act 1898 s 18(1); (NSW) Succession Act 2006 (opn on proc) s 14 (QLD) Succession Act 1981 s 16 (SA) Wills Act 1936 s 24 (TAS) Wills Act 1992 s 16(1) (VIC) Wills Act 1997 s 15 (WA) Wills Act 1970 s 10(1). In Western Australia the (WA) Wills Amendment Bill 2006 cl 9, when enacted, inserts (WA) Wills Act 1970 s 10, with similar effect. As to the effect of alterations rendering the words or effect of the will no longer apparent see notes 6-10 below. 2 (ACT) Wills Act 1968 s 12(1) (NT) Wills Act 2000 s 16(1) (NSW) Wills, Probate and Administration Act 1898 s 18(1); (NSW) Succession Act 2006 (opn on proc) s 14 (QLD) Succession Act 1981 s 16 (SA) Wills Act 1936 s 24 (TAS) Wills Act 1992 s 16(1) (VIC) Wills Act 1997 s 15(1) (WA) Wills Act 1970s 10(1). In Western Australia the (WA) Wills Amendment Bill 2006 cl 9, when enacted, inserts (WA) Wills Act 1970 s 10, with similar effect. As to the formal requirements for execution of a will see [395-280]-[395-385]. As to testamentary capacity see [395-175]-[395-225]. 3 (ACT) Wills Act 1968 s 12(2) (NT) Wills Act 2000 s 16(2) (NSW) Wills, Probate and Administration Act 1898 s 18(1); (NSW) Succession Act 2006 (opn on proc) s 14(3) (QLD) Succession Act 1981 s 16(3)

(TAS) Wills Act 1992 s 16(2) (VIC) Wills Act 1997 s 15(3) (WA) Wills Act 1970 s 10(2). In Western Australia the (WA) Wills Amendment Bill 2006 cl 9, when enacted, inserts a new (WA) Wills Act 1970 s 10(4), with similar effect. 4 In the Goods of Blewitt (decd) (1880) 5 PD 116; 42 LT 329; 28 WR 520. The initials of the witnesses alone are not sufficient: In the Goods of Cunningham (decd) (1860) 4 Sw & Tr 194; 164 ER 1491; In the Goods of Shearn (1880) 50 LJP 15; 43 LT 73; 29 WR 445.5 In the Goods of Cunningham (decd) (1860) 4 Sw & Tr 194; 164 ER 1491.6 See note 1 above. As to when the words or effect of a will are not apparent see notes 8, 9 below.7 Townley v Watson (1844) 3 Curt 761; 163 ER 893 ; In the Goods of Livocks (decd) (1838) 1 Curt 906; 163 ER 313; In the Goods of Ibbetson (decd) (1839) 2 Curt 337; 163 ER 431 ; In the Goods of James (decd) (1858) 1 Sw & Tr 238; 164 ER 809.8 Townley v Watson (1844) 3 Curt 761 at 764; 163 ER 893 . Extrinsic evidence may be admissible where the doctrine of dependent relative revocation applies: In the Will of Baker (1922) 39 WN (NSW) 257 . As to dependent relative revocation see [395-640].9 Ffinch v Combe [1894] P 191; (1894) 70 LT 695; 10 TLR 358 (words were apparent where only readable by expert holding document against window pane and placing brown paper around obliteration); In the Goods of Brasier [1899] P 36; (1898) 79 LT 472; 47 WR 272 ; Re OConnor [1934] QWN 18 ; In the Will of Riddell (1880) 6 VLR (IP & M) 5; 1 ALT 143 . In Western Australia apparent means legible to the unaided eye or with a magnifying glass but not otherwise: (WA) Wills Act 1970 s 10(3). When enacted (WA) Wills Amendment Bill 2006 cl 9 amends (WA) Wills Act 1970 s 10 but definition of apparent remains the same. 10 In the Goods of Horsford (1874) LR 3 P & D 211 at 215-16; [1874-80] All ER Rep 732; (1874) 31 LT 553 per Sir J P Hannen (words not apparent where only readable by chemical means); In the Goods of Itter (decd); Dedman v Godfrey [1950] P 130; [1950] 1 All ER 68 (words only readable by infra-red photography not apparent since that process produces a new document).11 In the Goods of Heath [1892] P 253; (1892) 67 LT 356; Tyler v Merchant Taylors Co (1890) 15 PD 216; 60 LJP 86; 63 LT 779; Re Hay; Kerr v Stinnear [1904] 1 Ch 317; (1903) 52 WR 92 . Where the codicil does not refer to the alteration, the alteration is presumed to have been made after the codicil was executed: see [395-705].12 Re Hall (1871) LR 2 P & D 256; 25 LT 384; 19 WR 897. The paragraph below is current to 20 September 2007 [395-705] Presumption as to time of alteration An alteration, including an obliteration or interlineation, in a will is presumed to have been made after the will was executed.1 The burden of proving otherwise is upon the person who seeks to rely on the alteration.2 Slight evidence may be sufficient to rebut the presumption,3 depending on the importance of the alteration. 4 The presumption will be rebutted by any evidence which, having regard to the circumstances, reasonably leads to the conclusion that the alterations were made before execution.5 Evidence admissible to rebut the presumption includes: (1) construction of the document itself, such as the fact that a clause does not make sense without the alteration;6 (2) evidence of declarations of intention made by the testator prior to or at the time the will was executed;7 and

(3) evidence of other persons that the alterations were made prior to the wills execution.8 Where a codicil makes no mention of an alteration, it is presumed that the alteration was made after the codicil was executed, although this presumption may be rebutted by evidence.9 Alterations to wills are now often remedied by an application to the relevant court for application of that courts dispensing powers.10 Notes 1 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291 ; Cooper v Bockett (1846) 4 Moo PCC 419; 13 ER 365 ; Greville v Tylee (1851) 7 Moo PCC 320; 13 ER 904 . See also Mittoni v Bradley [2003] WASC 114; BC200303083 .2 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403; [1934] ALR 291 ; Doe d Shallcross v Palmer (1851) 16 QB 747; 117 ER 1067 ; Greville v Tylee (1851) 7 Moo PCC 320; 13 ER 904 ; Williams v Ashton (1860) 1 John & H 115; 70 ER 685.3 In the Goods of Duffy (decd) (1871) IR 5 Eq 506.4 In the Goods of Hindmarch (1866) LR 1 P & D 307; 15 LT 391.5 Re Will of Rider (1901) 27 VLR 238; 8 ALR 5 ; In the Goods of Tonge (1891) 66 LT 60.6 In the Goods of Heath [1892] P 253; (1892) 67 LT 356; In the Goods of Cadge (1868) LR 1 P & D 543; 17 LT 484; 16 WR 406; In the Goods of Adams (1872) LR 2 P & D 367; 26 LT 526 ; In the Goods of Treeby (1875) LR 3 P & D 242. The fact that an alteration is dated earlier than the execution will not of itself be sufficient: In the Goods of Adamson (1875) LR 3 P & D 253. As to construction generally see [395-905][395-1005].7 In the Goods of Sykes (1873) LR 3 P & D 26; 28 LT 142; 21 WR 416; Doe d Shallcross v Palmer (1851) 16 QB 747; 117 ER 1067 ; Dench v Dench (1877) 2 PD 60; 46 LJP 13; 25 WR 414; In the Estate of Oates; Callow v Sutton [1946] 2 All ER 735; (1946) 63 TLR 83; Re King (1875) 23 WR 552; In the Goods of Tonge (1891) 66 LT 60. Declarations made by the testator after the date of execution are not admissible: Re Jessop [1924] P 221; [1924] All ER Rep 692; (1924) 132 LT 31; In the Goods of Sykes (1873) LR 3 P & D 26; 28 LT 142; 21 WR 416; In the Goods of Adamson (1875) LR 3 P & D 253 at 256 per Sir J P Hannen.8 Re Stewart [1904] QWN 41 ; Tyler v Merchant Taylors Co (1890) 15 PD 216; 60 LJP 86; 63 LT 779; In the Goods of Greenwood [1892] P 7; (1891) 66 LT 61 ; Keigwin v Keigwin (1843) 3 Curt 607; 163 ER 841 (evidence of person who drew the will).9 In the Will and Codicil of Brenan [1952] QWN 1 ; Lushington v Onslow (1848) Notes of Cases 183; In the Goods of Sykes (1873) LR 3 P & D 26; 28 LT 142; 21 WR 416. See also Equity Trustees Ltd v Levin [2004] VSC 203; BC200403452 ; Public Trustee (WA) v Drennan [2004] WASC 101; BC200402963 .10 See [395-300].

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[Halsbury's Laws of Australia]

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(9) REPUBLICATION The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-760] General The act of republication1 is a confirmation of an already existing and effective will or codicil.2 A codicil is a testamentary instrument executed by a testator for the purposes of altering, adding to, confirming or explaining a will previously made and duly executed by the testator. A codicil must be executed according to the same formalities as that required by a will and if so executed becomes part of the will.3 The effect of republication is to bring the date of execution of the republished will forward to the date of republication.4 The testator may alter the contents of the will during republication.5 A will may be republished by the re-execution6 of the original will 7 or by the making of a codicil to the will.8 In addition, the testator must possess an intention to republish.9 Republication may operate to validate a gift made to an attesting witness which would otherwise be void.10 It will not, however, restore a lapsed gift, a gift which has been adeemed or a will or codicil which has been revoked.11 If a description of a person or property in the original will or codicil fits a different person or different property at the date of republication, the description as at the date of republication applies.12 Notes 1 As distinct from revival, which reinstates a revoked will: see [395-840].2 Dunn v Dunn (1866) LR 1 P & D 277; 15 LT 216.3 (ACT) Wills Act 1968 ss 9, 12 (NT) Wills Act 2000 ss 8, 16 (NSW) Wills, Probate and Administration Act 1898 s 7; (NSW) Succession Act 2006 (opn on proc) ss 6, 14 (QLD) Succession Act 1981 ss 10, 16 (SA) Wills Act 1936 ss 8, 24 (TAS) Wills Act 1992 ss 10, 16 (VIC) Wills Act 1997 ss 7, 15 (WA) Wills Act 1970 s 8. In Western Australia the (WA) Wills Amendment Bill 2006 cl 9 when enacted, inserts amended (WA) Wills Act 1970 s 8 and new ibid s 10(4), with similar effect. See further The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills [3235] and Pr 20.890, 20.900. 4 As to the effect of republication generally see [395-770].5 See [395-770].6 There must be reexecution in order to republish: Barnes v Crowe (1792) 1 Ves 486 at 497; 30 ER 450 per Eyre

LC. As to the formal requirements of execution see [395-280]-[395-385]. As to the judicial dispensing powers see [395-300].7 Re Carrigan (decd) [1967] Qd R 379 .8 Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135; [1960] ALR 642; (1960) 34 ALJR 218 ; In the Estate of Queain (decd); Mahar v Hamar [1967] SASR 124 . As to the formal requirements for making a will or codicil see [395-280]-[395-385].9 See further [395-765].10 See [395-775]. As to the witness-beneficiary rule see further [395-380].11 See [395-785]. As to lapsed gifts see [3951170]-[395-1190]. As to ademption see [395-1150]-[395-1165].12 See [395-780]. The paragraph below is current to 20 September 2007 [395-765] Intention to republish Where a will is re-executed, a rebuttable presumption arises that the testator intended to republish the will.1 Where a codicil is made to a will, an express confirmation of the will is not necessary to demonstrate an intention to republish; a reference to the will in the codicil is sufficient.2 Where a testator makes a codicil from which an inference can be drawn that the testator wishes the codicil to be read as an integral part of the will, there is a reassertion of testamentary intention and thus an intention to republish.3 If there is no reference to the will in the codicil, an intention to republish cannot be inferred and there will be no republication.4 However, the requirements of republication cannot be applied so as to defeat the testators true intention at the latest date at which they were expressed.5 Notes 1 Dunn v Dunn (1866) LR 1 P & D 277; 15 LT 216.2 In the Estate of Queain (decd); Mahar v Hamar [1967] SASR 124 ; Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135; [1960] ALR 642; (1960) 34 ALJR 218 ; Goonewardene v Goonewardene [1931] AC 647; (1931) 145 LT 7 ; Re Smith; Prada v Vandroy [1916] 1 Ch 523; (1916) 115 LT 161 , CA; Re Fraser; Lowther v Fraser [1904] 1 Ch 726; [1904] All ER Rep 177; [1904] WN 82 , CA; Re Champion; Dudley v Champion [1893] 1 Ch 101; (1892) 67 LT 694 , CA; Serocold v Hemming (1758) 2 Lee 490; 161 ER 415. The testator must make some reference, even if it is oblique or unclear, to his or her will in the body of the codicil: Berkeley v Berkeley [1946] AC 555 at 575-6; [1946] 2 All ER 154 per Lord Porter; In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 . If the codicil mentions the above will or the within written will, that constitutes a sufficient reference to the will for the purposes of republication: In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 . Referring to the codicil as a codicil to the will has the effect of republishing the will: In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 ; Re Smith; Bilke v Roper (1890) 45 Ch D 632 at 638; [1886-90] All ER Rep 503 per Stirling J; Re Taylor; Whitby v Highton (1888) 57 LJ Ch 430; 58 LT 842; Skinner v Ogle (1845) 1 Rob Eccl 363; 163 ER 1067. A reference to executors under the will is sufficient to republish the will: In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 . See further The Australian Encyclopaedia of Forms and Precedents, 3rd ed, Butterworths, Sydney, Vol 15, Wills Pr 20.890-20.900. 3 Re Tredgold; Midland Bank Executor and Trustee Co Ltd v Tredgold [1943] Ch 69 at 72; [1943] 1 All ER 120 per Simonds J.4 In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 ; Re Smith; Bilke v Roper (1890) 45 Ch D 632; [1886-90] All ER Rep 503 . Writing the codicil on identical paper to that used for the original will is not sufficient: In the Will of Eteson (1927) 28 SR (NSW) 119; 45 WN (NSW) 6 .5 See [395-785]. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-770] Effect of republication When a will is republished its date of execution becomes the

date of republication. If the will is republished by way of a codicil,1 the contents of the republished will are as altered by the codicil.2 Republication may rectify defects in a testamentary instrument which would otherwise negate the disposition contained in the original will.3 Republication may also validate unattested alterations4 in the original will, but only where the alterations were not merely deliberative and were implemented before the re-execution of the will.5 If a republishing codicil incorporates 6 a document which was not in existence at the time of the original will, the incorporation will be valid and the document will form part of the republished will if the document was in existence before the date of republication.7 Notes 1 Goonewardene v Goonewardene [1931] AC 647; (1931) 145 LT 7 , PC; Re Fraser; Lowther v Fraser [1904] 1 Ch 726; [1904] All ER Rep 177; [1904] WN 82 , CA; Re Tredgold; Midland Bank Executor and Trustee Co Ltd v Tredgold [1943] Ch 69; [1943] 1 All ER 120 . In some jurisdictions, republication by codicil has been provided for by legislation: (NSW) Wills, Probate and Administration Act 1898 s 4 (SA) Wills Act 1936 s 3(2). There are no equivalent provisions in the other jurisdictions. 2 The general effect of republication is to bring the date of the will down to the date of the codicil, and to effect the same disposition of the testators property as would have been effected if the testator had at the date of the codicil made a new will containing the same dispositions as in the original will but with the alterations introduced by the codicil: Goonewardene v Goonewardene [1931] AC 647 at 650; (1931) 145 LT 7 at 8 , PC. See also Fairweather v Fairweather (1944) 69 CLR 121 at 133-4; [1944] ALR 190 per Latham CJ; Re Fraser; Lowther v Fraser [1904] 1 Ch 726; [1904] All ER Rep 177; [1904] WN 82 ; In the Goods of Carritt (decd) (1892) 66 LT 379; Follett v Pettman (1883) 23 Ch D 337; 48 LT 865 ; In the Goods of Rawlings (1879) 41 LT 559; Green v Tribe (1878) 9 Ch D 231; 38 LT 914 ; Wade v Nazer (1848) 1 Rob Eccl 627; 163 ER 1158; Upfill v Marshall (1843) 3 Curt 636; 163 ER 851 . This principle is not to be applied so as to defeat the testators intentions: see Re Hardyman; Teesdale v McClintock [1925] Ch 287; [1925] All ER Rep 83 . See further [395-785]. 3 For example, where a beneficiary under a will witnesses the will: see [395-775].4 In the Will of Eteson (1927) 28 SR (NSW) 119 at 122; 45 WN (NSW) 6 per Harvey CJ; In the Goods of Heath [1892] P 253; (1892) 67 LT 356. As to alteration of wills generally see [395-700]-[395705].5 There is a rebuttable presumption that such alterations were made after execution of the codicil and it is for the person asserting that the codicil validated certain alterations to prove that those alterations were made before execution of the codicil: In the Goods of Heath [1892] P 253; (1892) 67 LT 356.6 As to incorporation see [395-440].7 In the Goods of Lady Truro (decd) (1866) LR 1 P & D 201; 14 LT 893. The paragraph below is current to 20 September 2007 [395-775] Republication and gifts to attesting witnesses In some jurisdictions, gifts to attesting witnesses or their spouses may be null and void, or subject to limitations.1 However, where a will is republished by way of a codicil attested by independent witnesses, gifts otherwise void because the beneficiary or the beneficiarys spouse was a witness will be valid.2 This is due to the fact that the date of execution of the will becomes the date of republication, and therefore the republished will is attested by the independent witnesses.3

Where a gift to a certain person was validly made and attested in the original will, the original gift will not be invalidated if that person performs the role of attesting witness for any republication of the will.4 Notes 1 As to the witness-beneficiary rule see [395-380]. As to attestation generally see [395-345]-[395385].2 Anderson v Anderson (1872) LR 13 Eq 381; [1861-73] All ER Rep 161; Re Trotter; Trotter v Trotter [1899] 1 Ch 764; (1899) 80 LT 647 ; Harris v Harris (1880) 1 LR (NSW) L 247 ; Green v Tribe (1878) 9 Ch D 231; 38 LT 914 ; Burton v Newbery (1875) 1 Ch D 234; 34 LT 15; Re King (decd) [1949] QWN 7 .3 See, for example, Anderson v Anderson (1872) LR 13 Eq 381; [1861-73] All ER Rep 161.4 Re Heaths Will Trusts; Hamilton v Lloyds Bank Ltd [1949] Ch 170; [1949] 1 All ER 199 (if a testamentary gift is valid at the date of execution of the will then it cannot be made invalid by a mere republication of the will by a codicil). See also Re Trotter; Trotter v Trotter [1899] 1 Ch 764; (1899) 80 LT 647 . The paragraph below is current to 20 September 2007 [395-780] Change in persons or property A description of a person or property in a will which is subsequently republished also applies to the person or property fitting that description at the time of republication.1 Where the description is of a person, such as a son2 or wife,3 and circumstances alter so that prior to republication a different person fits the description, the republication results in the description applying to the person who fitted it at the time of republication.4 Where a will is republished subsequent to a variation or change in the nature of specific property described in the will, but the description may reasonably be applied to property existing at the time of republication, that property may pass under the will.5 Where the original will refers to property using words such as my present lease6 or now in my occupation7 and the will is subsequently republished, those words will apply to the testators property at the time of republication.8 Accordingly the republished will incorporates relevant property, interests or realty which fits the description and was acquired by the testator after execution of the original will and before republication.9 Notes 1 See, for example, Re Hardyman; Teesdale v McClintock [1925] Ch 287; [1925] All ER Rep 83 (where will referred to the wife of a cousin of the testator and cousins wife died and he subsequently remarried, republication after the remarriage resulted in will applying to the second wife); Perkins v Mickelthwarte (1714) 1 P Wms 274; 24 ER 386 (testators will left money to youngest son Joseph, who died before the testator; testator subsequently fathered another son named Joseph and republished his will; the description youngest son Joseph now applied to the second Joseph because of the republication); Re Reeves [1928] Ch 351 (where will referred to my present lease and lease expired and testator entered into new lease, republication meant the will applied to the new lease). See further notes 4, 5 below.2 See, for example, Perkins v Mickelthwarte (1714) 1 P Wms 274; 24 ER 386 (testator referred to his youngest son Joseph).3 See, for example, Re Hardyman; Teesdale v McClintock [1925] Ch 287; [1925] All ER Rep 83 (cousins wife).4 Re Hammersley (decd); Foster v Hammersley [1965] Ch 481; [1965] 2 All ER 24; [1965] 2 WLR 928 ; In the Will of Jackson; Jackson v Duncan [1964-65] NSWR 1279; (1964) 82 WN (Pt 1) (NSW) 62 ; Re Park; Bott v Chester [1910] 2 Ch 322; (1910) 102 LT 725 ; Re Donald; Moore v Somerset [1909] 2 Ch 410; (1909) 101 LT 377 (testator made will and eight codicils; first codicil used the words persons and institutions to whom and to which I have given pecuniary legacies; the eighth republishing codicil meant that these words applied to the will and to all intervening codicils).5 Re Reeves [1928] Ch 351 ; In the Will of Sargood; Trustees, Executors & Co v Sargood (1904) 10 ALR 149; 26 ALT 51 ; Re

Champion; Dudley v Champion [1893] 1 Ch 101; (1892) 67 LT 694 , CA.6 Re Reeves [1928] Ch 351 .7 Re Champion; Dudley v Champion [1893] 1 Ch 101; (1892) 67 LT 694 , CA.8 Re Reeves [1928] Ch 351 ; Re Champion; Dudley v Champion [1893] 1 Ch 101; (1892) 67 LT 694 , CA.9 Re Reeves [1928] Ch 351 ; Re Champion; Dudley v Champion [1893] 1 Ch 101; (1892) 67 LT 694 . The paragraph below is current to 20 September 2007 [395-785] Limits on republication The primary limitation on the doctrine of republication is that it cannot operate or be judicially applied so as to defeat the true intentions of the testator as expressed in his or her will.1 A republishing codicil may only act upon an earlier will as it exists at the date of republication, so that republication cannot:2 (1) reinstate a revoked will or codicil;3 (2) restore a gift which no longer exists at the date of republication, and has failed due to ademption;4 or (3) rectify a failure of a gift due to lapse.5 Where a codicil republishes a will there is a rebuttable presumption that the codicil republishes the will as altered by all subsequent codicils.6 A reference to the original will only is not enough to rebut this presumption;7 the testator must expressly and clearly revoke the intermediate codicils in order to republish the original will unaffected by those codicils.8 Thus, where a codicil has revoked a gift made in a will, a republication of the will by a later codicil will not restore the gift unless the testator clearly expresses an intention to do so, whether by referring to the original gift or by expressly revoking the previous codicil.9 Notes 1 Re Hardyman; Teesdale v McClintock [1925] Ch 287 at 291; [1925] All ER Rep 83 per Romer J; Re Heaths Will Trusts; Hamilton v Lloyds Bank Ltd [1949] Ch 170; [1949] 1 All ER 199 . As to the determination of the testators intention see [395-905]-[395-1005].2 Powys v Mansfield (1837) 3 My & Cr 359 at 376; 40 ER 964 at 971 per Cottenham LC.3 In order to reinstate a revoked will, the will must be revived: see [395-840].4 Fairweather v Fairweather (1944) 69 CLR 121 at 134; [1944] ALR 190 per Latham CJ; Powys v Mansfield (1837) 3 My & Cr 359 at 376; 40 ER 964 at 971 per Cottenham LC. As to ademption see [395-1150]-[3951165].5 Fairweather v Fairweather (1944) 69 CLR 121 at 134; [1944] ALR 190 per Latham CJ; Powys v Mansfield (1837) 3 My & Cr 359 at 376; 40 ER 964 at 971 per Cottenham LC. A legacy which has been revoked, adeemed or satisfied cannot be revived later by a subsequent codicil: Powys v Mansfield (1837) 3 My & Cr 359 at 376; 40 ER 964 at 971 per Cottenham LC. As to the doctrine of lapse see [395-1170]-[395-1190].6 Green v Tribe (1878) 9 Ch D 231; 38 LT 914 .7 Smith v Cunningham (1823) 1 Add 448; 162 ER 158 ; In the Goods of De La Saussaye (1873) LR 3 P & D 42; 28 LT 368.8 Green v Tribe (1878) 9 Ch D 231; 38 LT 914 ; Fairweather v Fairweather (1944) 69 CLR 121 at 134; [1944] ALR 190 per Latham CJ.9 See, for example, Green v Tribe (1878) 9 Ch D 231; 38 LT 914 (held that the testator had not expressed sufficient intention to revoke the intermediate codicil; evidence of such an intention is necessary to restore

an original gift).

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[Halsbury's Laws of Australia]

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(10) REVIVAL The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-840] General Revival is the reinstatement of a revoked 1 will or codicil.2 A will can only be revived by re-execution or by a properly executed codicil.3 The testator must have an intention to revive.4 The revival is effective from the date of the revival, not the date of the original will or the revoking instrument.5 At the date of the revival the revoked will must be physically in existence, thus a will that has been destroyed cannot be revived.6 It is possible to revive only part of a will. 7 Where a will was revoked by instrument,8 revocation of that instrument will not be sufficient to revive the original will because revival is only possible by way of re-execution or codicil.9 Revival of a will does not necessarily revoke wills subsequent to that will.10 A will revoked due to operation of law may be revived.11 As well as reinstating a revoked will or codicil, a reviving instrument may:12 (1) validate otherwise invalid alterations to the original will made before the date of revival;13 (2) incorporate documents into the original will which were not in existence at the time of execution of the original will;14 and (3)

validate a gift in the original will to an attesting witness or his or her spouse, provided that the reviving instrument is witnessed by an independent attesting witness.15 Although there is a presumption that a will last in the possession of the testator but missing at the time of the testators death has been destroyed,16 evidence of its contents may be given to show that it revoked a previous will.17 A missing will which is not shown to have been destroyed by the testator with the necessary intention18 may be revived by a codicil even if an intermediate will inconsistent with the missing will exists.19 Notes 1 As to revocation see [395-595]-[395-645].2 (ACT) Wills Act 1968 s 22(1) (NT) Wills Act 2000 s 17(1) (NSW) Wills, Probate and Administration Act 1898 s 19(1); (NSW) Succession Act 2006 (opn on proc) s 15 (QLD) Succession Act 1981 s 17 (SA) Wills Act 1936 s 25(1) (TAS) Wills Act 1992 s 27(1) (VIC) Wills Act 1997 s 16(1) (WA) Wills Act 1970 s 16(1). In Western Australia, (WA) Wills Amendment Bill 2006 cl 15 when enacted, amends (WA) Wills Act 1970 s 16 with similar effect. Compare the act of republication, which confirms an existing, valid will: see [395-760]. 3 See note 2 above. In this respect, revival is the same as republication: see [395-760]. The formal requirements may be dispensed with in certain circumstances: see, for example, In the Estate of Lynch (1985) 39 SASR 131 . Compare Trickey v Davies (1994) 34 NSWLR 539 (formal requirements needed to revive a revoked will were strictly applied). As to the judicial dispensing powers generally see [395-300]. Note, however, that a revoked will or codicil may be incorporated into a later valid testamentary instrument: In the Goods of Bangham (1876) 1 PD 429; 24 WR 712.4 See [395-845].5 (ACT) Wills Act 1968 s 22(3) (NT) Wills Act 2000 s 17(2) (NSW) Wills, Probate and Administration Act 1898 s 4; (NSW) Succession Act 2006 (opn on proc) s 15(4) (QLD) Succession Act 1981 s 17(4) (SA) Wills Act 1936 s 3(2) (TAS) Wills Act 1992 s 27(2) (VIC) Wills Act 1997 s 16(4). In Western Australia, (WA) Wills Amendment Bill 2006 cl 15 when enacted, amends (WA) Wills Act 1970 s 16(3) with similar effect. 6 Rogers v Goodenough (1862) 2 Sw & Tr 342; 164 ER 1028; In the Goods of Reade [1902] P 75; (1902) 86 LT 258 ; Hale v Tokelove (1850) 2 Rob Eccl 318; 163 ER 1331 . As to revocation by destruction see [395-630].7 In the Estate of Mardon (decd) [1944] P 109; [1944] 2

All ER 397 . See further [395-845].8 As to revocation by instrument see [395-620], [395-625].9 Major v Williams (1843) 3 Curt 432; 163 ER 781; In the Goods of Brown (decd) (1858) 1 Sw & Tr 32; 164 ER 615; Powell v Powell (1866) LR 1 P & D 209; [1861-73] All ER Rep 362 ; In the Goods of Hodgkinson [1893] P 339; (1893) 69 LT 540, CA; Re Hayes [1906] QWN 44 ; Re Hilly (1885) 1 WN (NSW) 119. However, if a will is revoked with the sole intention of reviving an earlier will, revocation of the second will may be treated as conditional so that, when the condition is not fulfilled, the doctrine of dependent relative revocation applies and the later will is not revoked: Powell v Powell (1866) LR 1 P & D 209; [1861-73] All ER Rep 362 . As to conditional revocation and the doctrine of dependent relative revocation see [395-640]. 10 See [395-850].11 In the Estate of Lynch (1985) 39 SASR 131 (testator executed will and after marrying altered it by amending her surname; testator intended to revive will and although she had not complied with formalities, will would be admitted to probate under judicial dispensing power); In the Goods of Davis (decd) [1952] P 279; [1952] 2 All ER 509 . As to wills revoked by operation of law generally see [395-600]-[395-610].12 Re Pearson (decd); Rowling v Crowther [1963] 3 All ER 763; [1963] 1 WLR 1358 .13 As to alteration of wills generally see [395-700][395-705].14 As to incorporation generally see [395-440].15 As to the validity of gifts to attesting witnesses see [395-380].16 As to the presumption of destruction of a missing will by the testator see [395-645].17 Barkwell v Barkwell [1928] P 91; [1927] All ER Rep 138 .18 As to intention to revoke see [395-615].19 Re Watson (decd) (1887) 13 VLR 599; 9 ALT 127 . See, however, Russell v Matchett [1903] St R Qd 98 (where codicil to will expressly confirmed will but the will was missing at time of testators death and no evidence was available to rebut presumption of destruction, codicil did not revive will and although a draft will was available, only the codicil was admitted to probate). As to intermediate wills see [395-850]. The paragraph below is current to 20 September 2007 [395-845] Intention to revive In order to revive a will the testator must have an intention to revive it.1 Where the revival is effected by re-execution, the mere fact of re-execution demonstrates an intention to revive.2 Where the revival is effected by codicil, the intention to revive must appear on the face of the codicil3 and, while express words of revival are not necessary, 4 a mere reference5 to a former will may not suffice.6 Part only of a will may be revived if an intention to revive just that part is expressly conveyed in the reviving codicil.7 As an intention to revive must appear on the face of the codicil, extrinsic evidence is not admissible, but evidence may be received of the circumstances surrounding the execution of the codicil.8 Notes 1 The evidence required to determine the testators intention to revive will vary with the surrounding circumstances of the case: In the Estate of Brian (decd) [1974] 2 NSWLR 231 , CA(NSW); McLeod v McNab [1891] AC 471; (1891) 65 LT 266 , PC. As to intention generally see [395-195].2 The same principle applies as in republication of a will: see [395-760].3 In the Goods of Steele (1868) LR 1 P & D 575 at 578; [1861-73] All ER Rep 209 per Sir J P Wilde; In the Estate of Horne (1920) 20 SR (NSW) 531; 37 WN (NSW) 185 ; Re Geary (decd) [1960] QWN 37 ; In the Will of Killick (decd) [1960] VR 98 ; Re Kelly [1942] QWN 31 ; In the Estate of Brian (decd) [1974] 2 NSWLR 231 , CA(NSW). An intention to revive is not necessarily indicated by the fact that a subsequent codicil: (1) is engrossed on the face of the revoked will (In the Estate of Brian (decd) [1974] 2 NSWLR 231 , CA(NSW); In the Estate of Horne (1920) 20 SR (NSW) 531; 37 WN (NSW) 185 );

(2) is physically attached or annexed to the original will (Marsh v Marsh (1860) 1 Sw & Tr 528; 164 ER 845 ); or (3) refers to the will by date (In the Estate of Brian (decd) [1974] 2 NSWLR 231 , CA(NSW); In the Will of Killick (decd) [1960] VR 98 ). The words confirmation and ratification may, in appropriate circumstances, be construed as amounting to words of revival: In the Will of Killick (decd) [1960] VR 98 ; Perpetual Trustees Estate and Agency Co of New Zealand Ltd v Wheeler [1946] GLR 125; McLeod v McNab [1891] AC 471; (1891) 65 LT 266 , PC. 4 In the Goods of Davis (decd) [1952] P 279; [1952] 2 All ER 509 (testator made will in favour of woman he later married and will revoked on marriage; an endorsement, signed and attested, on envelope that woman now my lawful wedded wife showed intention to revive); In the Goods of Steele (1868) LR 1 P & D 575; [1861-73] All ER Rep 209 (express words referring to revoked will and expressing intention to revive it, or disposition of property inconsistent with any other intention, or some other expression conveying to the court with reasonable certainty the existence of intention to revive).5 Compare with the situation for republication: see [395-760].6 McLeod v McNab [1891] AC 471; (1891) 65 LT 266 , PC.7 In the Estate of Mardon (decd) [1944] P 109; [1944] 2 All ER 397 .8 Re Dear (decd) [1975] 2 NZLR 254 at 264 per Richmond J, CA(NZ); In the Will of Killick (decd) [1960] VR 98 ; In the Will and Codicil of Littlejohn (1952) 69 WN (NSW) 129 ; In the Estate of Horne (1920) 20 SR (NSW) 531; 37 WN (NSW) 185 ; In the Estate of Brian (decd) [1974] 2 NSWLR 231 , CA(NSW). See further [395-915]. The paragraph below is current to 20 September 2007 [395-850] Intermediate wills and codicils Revival of a will does not necessarily revoke 1 all wills and codicils between the date of the original will and the date of the reviving codicil.2 Unless a contrary intention appears, revival of a will extends to all codicils to the will executed before the revival.3 The mere fact that the testator refers to the will to be revived by its original date does not necessarily mean the revival does not extend to later codicils.4 Where a will is revived and any intermediate wills or codicils are not expressly revoked, the intermediate wills and codicils remain valid to the extent that they are not inconsistent with the terms of the revived will and the reviving codicil, and will be admitted to probate along with the revived will and reviving codicil.5 Notes 1 As to revocation see [395-595]-[395-645]. As to admission to probate see further [395-2400][395-2695].2 See, for example, Re Dykes Goods (1881) 6 PD 205; [1881-85] All ER Rep 410; (1881) 45 LT 192 ; Re Reynolds Goods (1873) LR 3 P & D 35; Re Baker; Baker v Baker [1929] 1 Ch 668 .3 Green v Tribe (1878) 9 Ch D 231; 38 LT 914 .4 McLeod v McNab [1891] AC 471; (1891) 65 LT 266 , PC.5 In the Goods of Stedham (1881) 6 PD 205 at 206 per Sir J P Hannen. The extent of the inconsistency is to be determined by the court of construction: Re Pearson (decd); Rowling v Crowther [1963] 3 All ER 763; [1963] 1 WLR 1358 . As to determination of the testators intention and the construction of wills generally see [395-905][395-1005].

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[Halsbury's Laws of Australia]

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Bottom of Form (11) CONSTRUCTION (A) General The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-905] Principles of construction The principal aim of the courts of construction 1 is to ascertain the expressed intentions of the testator.2 If the words of a will are clear and unambiguous, then the testators intentions will prevail as expressed3 and the rules of construction are inapplicable.4 However, where the intention of the testator is ambiguous or unclear, the court will apply the rules of construction to the will in order to resolve the ambiguity.5 These rules are not rigid rules of law; rather, they are aids available to the court for the purpose of giving meaning and effect to the testamentary instrument.6 Certain restrictions apply concerning the admissibility of extrinsic evidence to ascertain the intention of the testator.7 In general, extrinsic evidence will not be admitted where the testators intention is sufficiently clear.8 Grants of representation to be obtained before applying for construction of a will.9 Legislative provisions facilitate construction of wills, generally by giving the relevant courts powers to give directions to appropriate applicants such as any interested person including personal representatives, trustees and to Public Trustees.10 Notes 1 As to courts of probate and courts of construction see [395-910]. As to construction of foreign wills see conflict of laws [85-1745].2 As to the determination of the testators expressed intention see [395-915].3 See [395-915].4 Singleton v Tomlinson (1878) LR 3 App Cas 404 at 423; 38 LT 653 per Lord Hatherley; As to the expression of the testators intention see Perrin v Morgan [1943] AC 399 at 420; [1943] 1 All ER 187 at 197 per Lord Romer.5 As to the rules of

construction see [395-920]-[395-990].6 Lutheran Church of Australia South Australia District Inc v Farmers Co-op Executors and Trustees Ltd (1970) 121 CLR 628 at 646; [1970] ALR 545; (1970) 44 ALJR 176 per Windeyer J; Re Hendersons Trusts; Schreiber v Baring [1969] 3 All ER 769; [1969] 1 WLR 651 ; Perrin v Morgan [1943] AC 399 at 406; [1943] 1 All ER 187 per Viscount Simon.7 As to the ability of the courts of construction and probate to admit extrinsic evidence see [395-910]. As to the use of extrinsic evidence generally see [395-995]-[395-1005].8 Ballard v Pick (1920) 20 SR (NSW) 223 at 227-8 ( where the draftspersons intentions are accurately expressed in the will and the testator then adopts the will, the testator is held to have adopted the intentions of the draftsperson and no other testamentary intention can be ascribed to the testator from the will); McRobert v McRobert (1920) 27 CLR 331 at 333 ( extrinsic evidence inadmissible where the testators words are unambiguous); Abbott v Middleton (1858) 7 HL Cas 68 at 114; 11 ER 28 at 46 per Lord Chelmsford; Roddy v Fitzgerald (1858) 6 HL Cas 823 at 876; 10 ER 1518 at 1539 per Lord Wensleydale.9 Haines DM, Construction of Wills, LexisNexis Butterworths, Sydney, 2007, [101]-[104].10 (ACT) Administration and Probate Act 1929 s 97A; (ACT) Court Procedures Rules 2006 r 3091(2). (NT) Public Trustee Act 1979 s 69; (NT) Supreme Court Rules r 54.02(2)(a)(i) (NSW) Supreme Court Rules Pt 68 r 2(2), Pt 70 r 5; (NSW) Uniform Civil Procedure Rules 2005 rr 7.11, 7.12; (NSW) Public Trustee Act 1913 s 12(2); (NSW) Trustee Act 1925 s 63 (QLD) Succession Act 1981 s 49 conferring powers of (QLD) Trusts Act 1973 s 50; (QLD) Uniform Civil Procedure Rules 1999 rr 621, 622 regarding (QLD) Public Trustee Act 1978 ss 29, 31 (SA) Supreme Court Act 1935 s 18; (SA) Administration and Probate Act 1919 s 69; (SA) Probate Rules 2004 R 93; (SA) Supreme Court Civil Rules 2006 R 206 (TAS) Public Trustee Act 1930 s 74; (TAS) Wills Act 1992 Pt 4; (TAS) Supreme Court Rules 2000 rr 89(j), 90(a), 103(3)(a), 103(3)(b), 604, 609; (TAS) Trustee Companies Act 1953 s 16 (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 5 (WA) Trustees Act 1962 s 92; (WA) Public Trustee Act 1941 s 23. The paragraph below is current to 20 September 2007 [395-910] Courts of probate and courts of construction The Supreme Court in each jurisdiction acts both as a court of probate and as a court of construction.1 The court of probate determines the validity, admissibility and text of a document in relation to which a grant of probate is sought.2 The court examines matters such as the testamentary nature of the document,3 the capacity of the testator to make the will4 and the validity of the form and execution of the document.5 A court of probate does not usually deal with questions of construction, except where it is necessary in order to determine whether probate of the document should be granted.6 However, where a testamentary document has been construed by the probate court and admitted to probate, that construction will not be binding on a court of construction.7 The probate court may admit extrinsic evidence according to the usual rules of admission of evidence.8 The court of construction determines the meaning of words and phrases used in wills which have been admitted to probate.9 The words of the will admitted by the court of probate are conclusive of the contents of the will and cannot be corrected or altered by the court of construction.10 However, the court of construction may inspect the original will directly where this is necessary for the purposes of construction.11 The court of construction may only admit extrinsic evidence in limited circumstances.12

When the content of a will is inconsistent with the intention of the testator a court of construction exercises the following powers: (1) discard or modify the inconsistency; or (2) imply words to express omissions.13 However, courts of construction must not speculate.14 Notes 1 See further [395-2400]-[395-2425]. As to the court structure generally see courts and judicial system.2 See further [395-2510]-[395-2535].3 See [395-1]-[395-120].4 See [395-175]-[395225].5 See [395-280]-[395-385].6 In the Estate of Kavanagh (decd) (1977) 16 SASR 342 ; Re Smith; Equity Trustees Executors and Agency Co Ltd v Smith [1939] VLR 213 at 221 per OBryan J. For example, the court of probate may need to construe a document to determine whether an instrument has been revoked by a later instrument: Re Smith; Prada v Vandroy [1916] 1 Ch 523; (1916) 115 LT 161 , CA. As to revocation see [395-595]-[395-645].7 Re Hendersons Trusts; Schreiber v Baring [1969] 3 All ER 769; [1969] 1 WLR 651 at 654 per Harman LJ, CA; Re Allsop (decd); Cardinal v Warr [1968] Ch 39 at 47; [1968] 2 All ER 1056; [1967] 3 WLR 793 per Lord Denning MR, CA; Perpetual Trustee Co Ltd v Wood (1959) SR (NSW) 260; 76 WN (NSW) 255 at 265 per Else-Mitchell J; Re Bleckly (decd); Bleckly v Bleckly [1951] Ch 740; [1951] 1 All ER 1064; [1951] 1 TLR 902 , CA; Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 at 414; [1945] ALR 411; (1945) 19 ALJ 200 per Dixon J; Public Trustee v Logan (1925) 25 SR (NSW) 194 ; In the Will of Nicholas (decd) [1923] VLR 461 at 467-8 per Mann J, SC(VIC), Full Court; Fell v Fell (1922) 31 CLR 268 at 273; 29 ALR 31 per Isaacs J; Byrne v Dunne (1910) 11 CLR 637 at 643; [1912] AC 407; (1910) 17 ALR 457 per Griffith CJ (affirmed Dunne v Byrne (1912) 16 CLR 500; [1912] AC 407; (1912) 18 ALR 122 ).8 As to the admissibility of extrinsic evidence see [395-995]-[395-1005]. See further evidence [195-3210]-[195-3240].9 See further [395-2420]. As to the testators expressed intention see [395-915]. As to the rules of construction see [395-920]-[395-990].10 Oppenheim v Henry (1853) 10 Hare 441; 68 ER 999 . If there is an error in the admitted will, the court of construction may apply to the court of probate to amend the testamentary document: Re Kleinsang (decd) (1928) 28 SR (NSW) 455; 45 WN (NSW) 123 .11 Doggett v Lenehan [1926] St R Qd 84 ; Re Crocombe (decd) [1949] SASR 302 at 305 per Mayo J; Re Steel (decd); Public Trustee v Christian Aid Society [1979] Ch 218; [1978] 2 All ER 1026; [1978] 2 WLR 950 at 952-3 per Megarry VC.12 See generally [395-995]-[395-1005].13 Towns v Wentworth (1858) 11 Moo PCC 526 at 542-43 per Pemberton J; 14 ER 794 . These principles followed and applied in Australia in Smidmore v Smidmore (1905) 3 CLR 344 at 356; 12 ALR 203; [1905] HCA 58; BC0500020 per Griffith CJ . See also Williams v Malone [2004] NSWSC 576; BC200404024 ; Berkovitch v Keily [2000] VSC 49; BC200000913 .14 Andrews v National Trustees, Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1 at 13; [1937] VLR 14; [1937] ALR 1; BC3700073 per Dixon J .

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(B) Rules of Construction The paragraph below is current to 20 September 2007 [395-915] Expressed intention of the testator The duty of the court of construction is to ascertain the testators intention by construing the language of the will.1 It is the actual words used by the testator which constitute the testators expressed intention, not what the testator meant to do.2 Thus, it is the written words of the instrument which determine the meaning of the instrument.3 Where the intention of the testator is unclear, the court may use a variety of rules of construction to resolve the ambiguity.4 The court is not permitted to re-write the will so as to produce a more logical or rational result, but may only give effect to the actual dispositions made in the testamentary instrument.5 Notes 1 Perrin v Morgan [1943] AC 399 at 406; [1943] 1 All ER 187 per Viscount Simon LC; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 . As to the court of construction see further [395-910].2 Perrin v Morgan [1943] AC 399 at 406; [1943] 1 All ER 187 per Viscount Simon LC; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 . See also Davis v Adventist Development and Relief Agency [2006] NSWSC 876; BC200607167 ; Abbs v Abbs [2003] NSWSC 1202; BC200307730 ; Firriolo v Firriolo [2000] NSWSC 1039; BC200006803 ; Public Trustee (Qld) v Roberts [2004] QSC 199; BC200403956 ; Lewis v Lohse [2003] QCA 199; BC200302360 ; Lewis v Lohse [2002] QSC 204; BC200204035 ; In the matter of Zimmerman [1999] QSC 15; Hood v A-G (WA) [2006] WASC 157; BC200606471 ; Wallis v Miller [2006] WASC 7; BC200600116 ; Re Kuzma; ex parte Public Trustee [2002] WASC 303; BC200207695 ; Estate of Hudson (decd) [2002] WASC 146; BC200203119 ; Borlaug v University of Western Australia [2001] WASCA 425; BC200108157 ; Thomas v Strickland [2001] WASC 156; BC200103203 .3 Perrin v Morgan [1943] AC 399 at 406; [1943] 1 All ER 187 per Viscount Simon LC; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 ; Pearce v Wright (1926) 26 SR (NSW) 515 at 521 per Long Innes J (affirmed Pearce v Wright (1926) 39 CLR 16 ); Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 at 52 per S0hand J, SC(QLD), Full Court; Ballard v Pick (1920) 20 SR (NSW) 223 at 227-8 per Harvey J; McRobert v McRobert (1920) 27 CLR 331 at 333 ; Roddy v Fitzgerald (1858) 6 HL Cas 823 at 876; 10 ER 1518 at 1539 per Lord Wensleydale; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327; 63 WN (NSW) 159 , SC(NSW), Full Court. As to the position where there is an error in the instrument see [395-910].4 See [395920]-[395-990].5 Pearce v Wright (1926) 26 SR (NSW) 515 at 521 per Long Innes J (affirmed Pearce v Wright (1926) 39 CLR 16 ); Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 at 52 per Shand J, SC(QLD), Full Court; Ballard v Pick (1920) 20 SR (NSW) 223 at 227 per Harvey J; McRobert v McRobert (1920) 27 CLR 331 at 333 ; Re Mackay (decd) (1915) 17 GLR 570; Simpson v Foxon [1907] P 54 at 57; (1906) 76 LJP 7; 96 LT 473 per Sir Gorrell

Barnes; Scale v Rawlins [1892] AC 342 at 344 per Lord Halsbury LC; Abbott v Middleton (1858) 7 HL Cas 68 at 114; 11 ER 28 at 46 per Lord Chelmsford. See further [395-910]. The paragraph below is current to 20 September 2007 [395-920] Will to be construed as a whole The entirety of the will is to be examined when ascertaining the testators intentions and not just a specific part or portion of the will which has created a doubt or ambiguity as to the true meaning of the will.1 Where a will has been altered by codicils, the will and the codicils are read together.2 The construction of the will as a whole may have the effect of solving ambiguities in words that are unclear,3 or may demonstrate that a word which appeared to have one meaning when read on its own should have a different meaning in the context of the entire will.4 Notes 1 Perpetual Trustee Co Ltd v McKendrick [1973] 2 NSWLR 784 at 792 per Mahoney J; Towns v Wentworth (1858) 11 Moo PCC 526; 14 ER 794 ; Crumpe v Crumpe [1900] AC 127; (1900) 82 LT 130 ; Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404; [1945] ALR 411; (1945) 19 ALJ 200 .2 Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135; [1960] ALR 642; (1960) 34 ALJR 218 .3 Re Haygarth; Wickham v Haygarth [1913] 2 Ch 9; (1913) 108 LT 756 .4 Re Haygarth; Wickham v Haygarth [1913] 2 Ch 9; (1913) 108 LT 756 . This may involve a rebuttal of the presumption that words in a will have their usual or technical meaning: Re Haygarth; Wickham v Haygarth [1913] 2 Ch 9; (1913) 108 LT 756 ; Re McBean (decd) (1973) 7 SASR 579 . See further [395-925]. The paragraph below is current to 20 September 2007 [395-925] Usual meaning rule The usual meaning rule requires the court to interpret words and phrases in a will in the context of the whole of the will read together,1 according to their usual, primary or technical meaning.2 If the passage of time has caused an alteration in the usual meaning of a word or phrase, the usual meaning is ascertained at the date the will was executed.3 Where the meaning of a word or phrase is clear and capable of application by reference to the surrounding circumstances of the testator then, with certain qualifications,4 no evidence may be led to show that the testator used the word or phrase in a manner other than according to its ordinary or usual meaning.5 Words which have acquired a settled meaning in the courts will prima facie be given that meaning.6 The usual meaning rule will not be displaced merely because a provision in a will appears arbitrary, capricious or eccentric.7 The usual meaning rule is qualified in its application by: (1) the dictionary principle;8 (2) the armchair principle;9 (3) words having more than one meaning;10 and (4) customary usage.11

Notes 1 As to construction of the will as a whole see [395-920].2 Allgood v Blake (1873) LR 8 Ex 160 at 163; 29 LT 331 per Blackburn J; Lutheran Church of Australia South Australia District Inc v Farmers Co-op Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545; (1970) 44 ALJR 176 . As to technical words and phrases see [395-945].3 Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187 . Note that republication of a will alters the wills date of execution: see [395760]. As to the date of execution see [395-290].4 See notes 8-11 below.5 Re Cuthbertson; Cuthbertson v Cuthbertson 1979 Tas R 93; Re Atkinsons Will Trusts; Atkinson v Hall [1978] 1 All ER 1275; [1978] 1 WLR 586 at 590 per Megarry VC; Re Rowlands (decd) [1973] VR 225 ; Re Bell (decd) [1969] VR 597 ; Re Hackett (decd) [1966] VR 232 ; Re Edwards (decd) [1964] VR 551 at 553 per Herring CJ; Hulks v Wills (1949) 50 SR (NSW) 74; 67 WN (NSW) 79 ; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327; 63 WN (NSW) 159 , SC(NSW), Full Court; Re Robertson [1942] VLR 137 ; Re Grazebrook; Chase v Layton [1928] VLR 75; (1927) 49 ALT 261 ; Pearce v Wright (1926) 26 SR (NSW) 515 (affirmed Pearce v Wright (1926) 39 CLR 16 ); Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 ; Re Goodes (1902) SALR 86 at 91 per Way CJ; Robinson v Gould (1886) 8 ALT 38.6 Re Cox (decd) [1967] Qd R 173 ; Re Motion; New Zealand Insurance Co Ltd v Hargraves [1960] NZLR 921 ; Re Hogarth (decd) [1935] St R Qd 211 ; Re Smith [1933] Ch 847 ; Re Harcourt; Portman v Portman [1921] 2 Ch 491 at 503 per Lord Sterndale (affirmed Portman v Portman [1922] 2 AC 473; (1922) 128 LT 129 ); Hamilton v Ritchie [1894] AC 310 at 313 per Lord Watson; Leach v Jay (1878) 9 Ch D 42 . See further [395-940].7 Re Jamess Will Trusts; Peard v James [1962] Ch 226; [1960] 3 All ER 744 ; Bird v Luckie (1850) 8 Hare 301 at 306; 68 ER 375 .8 See [395-930].9 See [395-935].10 Most words have more than a single meaning, and the circumstances in which the testator uses those words determines what meaning the court will attribute to them in each particular case: Charter v Charter (1874) LR 7 HL 364. See further [395940], [395-945].11 See [395-950]. The paragraph below is current to 20 September 2007 [395-930] Dictionary principle Under the dictionary principle, where a testator has provided his or her own definitions for the words in the will, the court will interpret the words or phrases in the will in accordance with those definitions.1 The clearest application of the principle occurs where the testator includes an express definition clause in the will.2 However, the principle will also apply where the testator clearly uses a word or phrase in a different sense from its usual meaning.3 In applying the principle, the meaning of a word or phrase must be construed in the context of the will as a whole, and not in isolation.4 Notes 1 Walker v Landenberger (1937) 37 SR (NSW) 201 at 213 per Long Innes CJ; Re Mitchell (decd); Ballarat Trustees Executors and Agency Co Ltd v National Trustees, Executors & Agency Co of Australasia Ltd [1929] VLR 95; [1929] ALR 108 ; Public Trustee v Leslie [1917] NZLR 841 ; In the Will of Thomas [1915] VLR 141 , SC(VIC), Full Court; Joy v Curator of the Estates of Deceased Persons (1895) 21 VLR 620; 1 ALR 109 ; Hill v Crook (1873) LR 6 HL 265; [1874-80] All ER Rep 62 .2 Re Davidson (decd); National Provincial Bank Ltd v Davidson [1949] Ch 670; [1949] 2 All ER 551 ; Re Helliwell; Pickles v Helliwell [1916] 2 Ch 580; (1916) 115 LT 478 .3 Trustees, Executors & Agency Co Ltd v Johnston [1970] VR 587 ; In the Will of Moyle (decd); Howie v Moyle [1920] VLR 147; (1920) 26 ALR 70 ; Re Viney (1917) 13 Tas LR 72 . As to the usual meaning rule see [395-925].4 Re Griffiths (decd) (1980) 23 SASR 358 at 361 per Walters J; Public Trustee v Young (1980) 23 SASR 239 at 247 per Jacobs J; Perrin v Morgan [1943] AC 399 at 418; [1943] 1 All ER 187 per Lord Russell; Crumpe v Crumpe [1900] AC 127; (1900) 82 LT 130 ; Martin v Lee (1861) 14 Moo PCC 142; 4 LT 657; 15 ER 259 . As to construction of a will as a whole see [395-920]. The paragraph below is current to 20 September 2007

[395-935] Armchair principle The armchair principle enables the court to give meaning and effect to a will in which the words used may be clear but have no application or discernible meaning with reference to surrounding circumstances.1 It has been held that armchair evidence may also be used to show an ambiguity, even if the words in the will are clear.2 The principle is termed the armchair principle3 because the will is interpreted as if the court was sitting in the testators armchair looking at the will from his or her viewpoint or perspective.4 Under the armchair principle, the court may admit for examination extrinsic evidence about the testators property and his or her family, acquaintances and friends for the purpose of putting the court in a position to read the will as the testator himself or herself would read it.5 However, the court may not admit direct evidence of the testators intention.6 Armchair evidence may reveal a doubt as to the meaning of the words in a will and the court must determine whether the words have their usual and ordinary meaning7 or whether their meaning is modified by the extrinsic evidence.8 The court will first construe the will according to the ordinary meaning of the words used; if necessary, look at the surrounding circumstances,9 then check the testators situation against the words in the will as they are construed.10 Notes 1 Higgins v Dawson [1902] AC 1; [1900-3] All ER Rep Ext 1470 ; Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 , CA(NSW); Harris v Ashdown (1985) 3 NSWLR 193 , CA(NSW); Re Gibb [1984] 1 NZLR 708 , HC(NZ); Re Jebb (decd); Ward-Smith v Jebb [1966] Ch 666; [1965] 3 All ER 358; [1965] 3 WLR 810 , CA.2 Re Smalley; Smalley v Scotton [1929] 2 Ch 112 ; Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 , CA(NSW); Harris v Ashdown (1985) 3 NSWLR 193 , CA(NSW); Re Gibb [1984] 1 NZLR 708 , HC(NZ); Re Jebb (decd); Ward-Smith v Jebb [1966] Ch 666; [1965] 3 All ER 358; [1965] 3 WLR 810 , CA.3 The expression was first used in Boyes v Cook (1880) 14 Ch D 53 at 56 per James LJ.4 Re Bell (decd); Bell v Bell [1964] NZLR 912 , CA(NZ); In the Will and Codicil of Padbury; Home of Peace for the Dying and Incurable v Solicitor-General (WA) (1908) 7 CLR 680; 15 ALR 77 ; Hendry v Perpetual Executors and Trustees Assn of Australia Ltd (1961) 106 CLR 256; [1962] ALR 249; (1961) 35 ALJR 151 ; Re Edwards (decd); Turner v Roberts [1981] VR 794 ; Re Heidenreich; Cole v Heidenreich (1981) 27 SASR 455 ; Public Trustee v Young (1980) 23 SASR 239 at 245 per Jacobs J; Re Beames (decd); Pearce v Beames (1979) 22 SASR 595 ; Re McBean (decd) (1973) 7 SASR 579 at 582 per Sangster J; Re Hillier (decd) (1971) 1 SASR 140 ; Re Bell (decd) [1969] VR 597 ; Re Bowcock (decd); Box v Bowcock [1968] 2 NSWR 697 ; Re Carrigan (decd) [1967] Qd R 379 ; Re Cox (decd) [1967] Qd R 173 ; Re Fowler (decd) [1963] VR 639 ; Re Carson (decd); Carson v Presbyterian Church of Queensland [1956] St R Qd 466 , SC(QLD), Full Court; Re Thomson [1956] SASR 188 , SC(SA), Full Court; Re Tait (decd); Rumsby v Cowan [1953] SASR 263 at 267 per Ligertwood J; In the Estate of Playfair (decd) [1946] SASR 110 ; Re Minton; Public Curator v Toohey [1939] St R Qd 159 ; Walker v Landenberger (1937) 37 SR (NSW) 201 ; Ballard v Pick (1920) 20 SR (NSW) 223 .5 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 , CA(NSW); Harris v Ashdown (1985) 3 NSWLR 193 , CA(NSW); Re Gibb [1984] 1 NZLR 708 , HC(NZ); Re Jebb (decd); Ward-Smith v Jebb [1966] Ch 666; [1965] 3 All ER 358; [1965] 3 WLR 810 , CA. As to the admission of extrinsic evidence generally see [395-995]-[395-1005].6 At common law, direct evidence of the testators intention may only be admitted in the case of equivocations: see [3951000]. As to statutory provisions in this area see [395-1005].7 As to the usual meaning of words in a will see [395-925].8 National Society for Prevention of Cruelty to Children v Scottish National Society for Prevention of Cruelty to Children [1915] AC 207; (1915) 111 LT 869 . The distinction between words or phrases in a will that are clear and sensible and those that are insensible is a fine one: Re Bell (decd); Bell v Bell [1964] NZLR 912 , NZ(CA). The concept of doubt when applied to the meaning of the words used in the testamentary instrument and looked at with the hindsight of extrinsic or armchair evidence is not always conclusive: Re Charleson (decd) [1968] VR 252 at 256 per Starke J; Reishiska v Cody (1967) 62 WWR 581; Re Cox (decd) [1967] Qd

R 173 ; Marchuk v Marchuk (1965) 52 WWR 652; Re Wood (decd) [1952] VLR 450 ; Re Foley; Channell v Foley (1952) 53 SR (NSW) 31; 70 WN (NSW) 1 ; Walker v Petrie (1936) 53 WN (NSW) 155 ; Re Grazebrook; Chase v Layton [1928] VLR 75; (1927) 49 ALT 261 ; In the Will of Barnett; Bradbury v Barnett [1919] VLR 524; (1919) 25 ALR 289 .9 Re Hodgson; Nowell v Flannery [1936] Ch 203 at 206; [1935] All ER Rep 161 per Farwell J.10 Re Edwards (decd); Turner v Roberts [1981] VR 794 ; Executor Trustee and Agency Co of South Australia Ltd v Warbey [1971] SASR 255 ; Re Burns (decd) [1969] WAR 97 ; Re Alleyn (decd) [1965] SASR 22 ; Re Fleming (decd); McNamara v Fleming [1963] VR 17 ; Re Wilton [1958] Qd R 559 , SC(QLD), Full Court; Re Thomson [1956] SASR 188 ; Re Guidi (decd) [1948] SASR 207 ; Re Minton; Public Curator v Toohey [1939] St R Qd 159 ; Re Livingston; Irving v Irving [1923] SASR 387 . The paragraph below is current to 20 September 2007 [395-940] Words with more than one ordinary meaning If a word or phrase in a will has more than one ordinary meaning, then the usual meaning rule1 does not apply and the court will instead apply the most likely meaning, taking into account the surrounding circumstances of the particular case, the intention of the testator as expressed in the whole of the will and the context of the will.2 Although the rules of construction have resulted in certain words acquiring a prima facie meaning at law,3 the modern approach is that the word in question will be construed as having a different meaning if the entire circumstances and the context of the will indicate that this should be so.4 For example, the word money may have several possible meanings depending upon the language of the will and the surrounding circumstances.5 Notes 1 As to the usual meaning rule see [395-925].2 Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187 .3 See, for example, Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 at 409; [1945] ALR 411; (1945) 19 ALJ 200 per Rich J (meaning of survivors); Elliott v Joicey [1935] AC 209 at 218; [1935] All ER Rep 578 per Lord Russell; Matthews v Williams (1941) 65 CLR 639; [1943] ALR 113 (meaning of issue); Re Brooke (decd); Edyvean v Archer [1903] AC 379; (1903) 89 LT 4 , PC.4 Perrin v Morgan [1943] AC 399 at 418-20 per Lord Russell, at 420 per Lord Romer; [1943] 1 All ER 187 ; Re Purnchards Will Trusts [1948] Ch 312 ; Re Everett; Prince v Hunt [1944] Ch 176; [1944] 2 All ER 19 (words stocks and shares included all the investments the testator wished to dispose of, as identified by the surrounding circumstances and context of the will).5 Re Leury (decd) [1975] VR 601 ; Lewis v OLoughlin (1971) 125 CLR 320; [1972] ALR 456; (1971) 45 ALJR 640 ; Ramsay v Lowther (1912) 16 CLR 1 ; Re Lowin (decd); Perpetual Trustee Co Ltd v Robins [1967] 2 NSWR 140; (1967) 85 WN (Pt 1) (NSW) 403 , CA(NSW); Minehan v Minehan [1965] WAR 196 ; Re Nankivell [1965] SASR 269 ; Re East (decd) [1964] QWN 16 ; Re McLennan [1963] VR 270 ; Re Ross [1963] SASR 32 ; Re Litchfield (decd); Public Trustee v Millett [1961] ALR 750; (1961) 2 FLR 454 , SC(NT); In the Estate of Ward (decd) [1957] SASR 125 ; Re OShea (decd); National Trustees Executors & Agency Co of Australasia Ltd v OShea [1953] VLR 43 ; Re Jordan (decd); Tasmanian Permanent Executors and Trustees Assn Ltd v Symmons [1948] Tas SR 59 ; Re Stokell (1913) 9 Tas LR 7 ; Re Pearce (decd) [1946] SASR 118 ; Public Trustee v Smith (1944) 44 SR (NSW) 348; 61 WN (NSW) 206 ; Perpetual Trustee Co Ltd v Connell (1940) 57 WN (NSW) 81 ; Re Albert; Albert v Albert [1940] VLR 353; [1940] ALR 316 . The paragraph below is current to 20 September 2007 [395-945] Technical words and phrases If words or phrases used in a will have, prima facie, a technical, legal or scientific meaning, there is a strong presumption1 that the words or phrases bear that meaning.2 Where a word has a particular legal meaning, the presumption will still apply even if the testamentary instrument was drafted by a lay person and not a lawyer.3 Notes

1 Re Harcourt; Portman v Portman [1921] 2 Ch 491 at 503 per Lord Sterndale MR, CA (affirmed Portman v Portman [1922] 2 AC 473; (1922) 128 LT 129 ). The dictionary or armchair principle may be used to rebut the presumption, but strong evidence will be required: Re Harcourt; Portman v Portman [1921] 2 Ch 491 at 503 per Lord Sterndale MR.2 Re Cook; Beck v Grant [1948] Ch 212; [1948] 1 All ER 231 ; Re Van Lessen [1955] 3 All ER 691; [1955] 1 WLR 1326; Re Rayner; Rayner v Rayner [1904] 1 Ch 176; (1903) 89 LT 681 , CA (trade and business usage and terminology).3 Allen v Crane (1953) 89 CLR 152; [1953] ALR 959 ; Re Cook; Beck v Grant [1948] Ch 212; [1948] 1 All ER 231 . Note that evidence as to the meaning of legal technical terms is not admissible: Leach v Jay (1878) 9 Ch D 42 , CA. The paragraph below is current to 20 September 2007 [395-950] Custom If a testator belonged to a religious, trade or other special group of people, and he or she used words in a will which have a special meaning for that group of people, the court will usually give effect to that special meaning when interpreting the will.1 This principle may be applied even where the words of the will are clear and unambiguous according to their usual meaning.2 It may also be applied to a description of a place, property or residence if the special meaning or custom has significance there.3 The court will admit extrinsic evidence to determine the customary meaning as it is a question of fact.4 Notes 1 Re Gillson (decd); Ellis v Leader [1949] 1 Ch 99; [1948] 2 All ER 990, CA (referring to bloodstock); Re Rayner; Rayner v Rayner [1904] 1 Ch 176 at 188; (1903) 89 LT 681 per Vaughan Williams LJ, CA (referring to securities); Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450 (referring to godly persons).2 Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450; Max Cooper & Sons Pty Ltd v Sydney City Council (1980) 29 ALR 77; 54 ALJR 234 . As to the usual meaning rule see [395-925].3 Anstee v Nelms (1856) 1 H & N 225; 156 ER 1186.4 Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450. As to extrinsic evidence generally see [395-995]-[3951005]. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-955] Omission, change and transposition of words: rectification Where the court has clearly determined the testators main purpose and intention, but the intention would be defeated by, or is inconsistent with, an apparently defective or meaningless provision in the will, the courts of probate and of construction have varying powers to alleviate the defect.1 Where the will is ambiguous, the courts main aim is to construe the will in a manner that prevents whole or partial intestacy.2 The court of probate may delete words inserted in the will of which the testator did not know and approve or that were inserted by fraud, but except in jurisdictions with statutory rectification powers,3 it cannot add omitted words.4 In all jurisdictions except Western Australia, the probate court may alter the will if it is satisfied that the will is expressed in such a way as to fail to carry out the testators intentions; it may then rectify the will so as to carry out those intentions.5 The court must be satisfied that the testators intention can be discerned to the point that an order can be made carrying it out.6 In Queensland, under common law, the probate court has the same power to add words to the will

as it previously had to omit material where there was an accidental or inadvertent insertion.7 The Supreme Court of Western Australia will assume powers of rectification similar to all other jurisdictions upon commencement of the (WA) Wills Amendment Bill 2006.8 The court of construction cannot delete words but, where necessary, may transpose or ignore words.9 Furthermore, the court may read in words where necessary in order to give effect to the testators clear intention,10 but only where it is clearly apparent that an omission has been made and the court can identify what has been omitted with reasonable certainty.11 Notes 1 As to the respective roles of the courts of probate and construction see [395-910] and [3952415], [395-2420].2 Re Kallil (decd); Koorey v Kallil [1957] NZLR 10 , CA(NZ); In the Will of Barnett; Bradbury v Barnett [1919] VLR 524; (1919) 25 ALR 289 , SC(VIC), Full Court; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 . See further [395-960]. As to intestacy generally see [3951500]-[395-2095].3 (ACT) Wills Act 1968 s 12A (NT) Wills Act 2000 s 27 (NSW) Wills, Probate and Administration Act 1898 s 29A; (NSW) Succession Act 2006 (opn on proc) s 15(4) (QLD) Succession Act 1981 s 33 (SA) Wills Act 1936 s 25AA (TAS) Wills Act 1992 s 47 (VIC) Wills Act 1997 s 31. In Western Australia (WA) Wills Amendment Bill 2006 cl 24 when enacted, inserts (WA) Wills Act 1970 ss 49, 50. See further [395-2400]-[395-3475]. 4 Osborne v Smith (1960) 105 CLR 153; [1961] ALR 831; (1960) 34 ALJR 368 ; Tatham v Huxtable (1950) 81 CLR 639 at 645; [1951] ALR 1; (1950) 24 ALJ 416 per Latham CJ; In the Will of Cartledge (decd) [1919] VLR 182; (1919) 25 ALR 94; 40 ALT 177 ; In the Will of Green; Crowson v Wild [1907] VLR 284; (1907) 13 ALR 121; 28 ALT 206 at 288 per ABecket J. As to the court of probate see [395-910].5 (ACT) Wills Act 1968 s 12A (NT) Wills Act 2000 s 27 (NSW) Wills, Probate and Administration Act 1898 s 29A; (NSW) Succession Act 2006 (opn on proc) s 27 (QLD) Succession Act 1981 s 33 (SA) Wills Act 1936 s 25AA (TAS) Wills Act 1992 s 47 (court must be satisfied beyond reasonable doubt). (VIC) Wills Act 1997 s 31. In Western Australia (WA) Wills Amendment Bill 2006 cl 24 when enacted, inserts (WA) Wills Act 1970 s 50. 6 Estate of Spinks (unreported, CA(NSW), Sheller, Mahoney and Meagher JJA, No 40544/90, 12 December 1991).7 Re Hess [1992] 1 Qd R 176 ; Re Allen [1988] 1 Qd R 1 .8 (WA) Wills

Amendment Bill 2006 cl 24 inserting (WA) Wills Act 1970 Pts XI, XII.9 Re Lourie (decd) [1968] NZLR 541 ; Re Thomas (decd); Trustees Executors and Agency Co Ltd v Thomas [1925] VLR 488 at 493 per McArthur J; In the Will of Barnett; Bradbury v Barnett [1919] VLR 524; (1919) 25 ALR 289 , SC(VIC), Full Court; Re Smith [1948] 1 Ch 49 at 53 per Vaisey J; Towns v Wentworth (1858) 11 Moo PCC 526 at 543; 14 ER 794 at 800 .10 Re Smith [1948] 1 Ch 49.11 McClymont v Hooper (1973) 128 CLR 147; [1972-73] ALR 1331; (1973) 47 ALJR 222 ; Betts v Conolly (1970) 120 CLR 417; [1970] ALR 852; (1970) 44 ALJR 197 ; Andrews v National Trustees, Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1; [1937] VLR 14; [1937] ALR 1; BC3700073 ; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 ; In the Estate of French (decd) [1961] SASR 302 . The court will not read in words by conjecture but must have a strong persuasion as to which words were omitted; a mere strong suspicion is not sufficient when reading the whole will in a single context: Re Houlgrave (decd); Public Trustee v Doodie and Houlgrave (1980) 23 SASR 107; Butlin v Butlin (1966) 113 CLR 353; [1967] ALR 352; (1966) 39 ALJR 438 ; Re Rileys Will Trusts [1962] 1 All ER 513; [1962] 1 WLR 344 ; Re Bacharachs Will Trusts; Minden v Bacharach [1959] 1 Ch 245; [1958] 3 All ER 618; [1959] 2 WLR 1 ; Re Whitrick [1957] 2 All ER 467; [1957] 1 WLR 884 , CA; Re Cory (decd); Cory v More [1955] 2 All ER 630; [1955] 1 WLR 725; Re Follett (decd); Barclays Bank Ltd v Dovell [1955] 2 All ER 22; [1955] 1 WLR 429 , CA. The paragraph below is current to 20 September 2007 [395-960] Presumption against intestacy The golden rule of construction is that the court of construction aims to interpret and give effect to a testamentary instrument so as to avoid an intestacy.1 Where the meaning of the will is unclear, the court presumes the testator did not intend to die intestate, unless a different conclusion can be drawn on a fair and reasonable construction of the will.2 In applying the presumption, the court may transpose, supply, change or ignore words.3 If the words of the will clearly indicate an intention on the part of the testator to die intestate, the court must give effect to that intention.4 Similarly, if the words of the will are ambiguous, and admissible extrinsic evidence5 does not resolve the ambiguity, the court cannot apply the presumption against intestacy so as to give the words of the will an unsubstantiated meaning.6 Notes 1 Re Edwards (decd); Turner v Roberts [1981] VR 794 at 795 per Kaye J; Jenkins v Stewart (1906) 3 CLR 799 at 804; 12 ALR 370 ; Re Beames (decd); Pearce v Beames (1979) 22 SASR 595 at 599 per Matheson J; Re Steel (decd); Public Trustee v Christian Aid Society [1979] Ch 218; [1978] 2 All ER 1026; [1978] 2 WLR 950 at 956 ; Re Cox (decd) [1967] Qd R 173 ; Re East (decd) [1964] QWN 16 ; Re Murray (decd); Equity Trustees Executors and Agency Co Ltd v Murray [1958] VR 4; [1958] ALR 605 ; Re Maley [1944] SASR 99 at 101 per Richards J; Re Price [1941] St R Qd 192 , SC(QLD), Full Court; Re Barber; James v Barber (1937) 37 SR (NSW) 470 ; Re Hall (decd); Bentick v Hall [1918] VLR 448; (1918) 24 ALR 229 ; Re Dwyer; National Trustees, Executors & Agency Co v Dwyer (1900) 26 VLR 263 at 266; 6 ALR 65 per Madden CJ. As to intestacy see [395-1500]-[396-2095]. As to the respective roles of the courts of probate and construction see [395-910]. See also Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292; BC200301648 ; Motum v Motum [1999] NSWSC 761; BC9904187 .2 Fell v Fell (1922) 31 CLR 268 at 275-6; 29 ALR 31 per Isaacs J; Re East (decd) [1964] QWN 16 ; Byrne v Dunne (1910) 11 CLR 637; [1912] AC 407; (1910) 17 ALR 457 ; Re Edwards (decd); Turner v Roberts [1981] VR 794 ; Public Trustee v Executor Trustee and Agency Co of South Australia Ltd (1984) 36 SASR 32 at 39 per Wells J.3 Re Houlgrave (decd); Public Trustee v Doodie and Houlgrave (1980) 23 SASR 107 at 112 per Matheson J (golden rule accepted, but did not operate to supply words in this case); Re Leury (decd) [1975] VR 601 ; In the Estate of Rigg [1960] SASR 197 at 198 per Napier CJ; Re Browne; Public Trustee v Browne (1939) 39 SR (NSW) 283 ; Re Thomas (decd); Trustees Executors and Agency Co Ltd v Thomas [1925] VLR 488 ; Fell v Fell (1922) 31 CLR 268; 29 ALR 31 ; In the

Will of Barnett; Bradbury v Barnett [1919] VLR 524 at 533; (1919) 25 ALR 289 per Cussen J, SC(VIC), Full Court; Re Shackelford (decd); Boothby v Shackelford [1918] VLR 279 . As to the power of the court to transpose, change or ignore words see further [395-955].4 Re Rowland (decd); Smith v Russell [1963] 1 Ch 1; Re Wragg (decd); Hollingsworth v Wragg [1959] 2 All ER 717; [1959] 1 WLR 922 at 930 ; Re Scott [1957] St R Qd 507 at 510 ; Re Bailey; Barrett v Hyder [1951] Ch 407; [1951] 1 All ER 391 ; Re Sharp [1946] Tas SR 13 ; Re Smith [1938] VLR 59 ; Lenehan v Lenehan (1892) 13 LR (NSW) Eq 59.5 As to the admissibility of extrinsic evidence see [395-995]-[395-1005].6 Re Campbell (decd) [1950] SASR 228 at 233 per Mayo J; Re Gibson; Doig v Haynes [1929] SASR 321 ; Byrne v Dunne (1910) 11 CLR 637 at 643; [1912] AC 407; (1910) 17 ALR 457 per Griffith CJ (affirmed Dunne v Byrne (1912) 16 CLR 500; [1912] AC 407; (1912) 18 ALR 122 ). The paragraph below is current to 20 September 2007 [395-965] Preservation of dispositions The court of construction will construe testamentary instruments in a manner which preserves rather than destroys the gifts and dispositions contained in them.1 This principle2 is an extension of the presumption that the testator intended his or her will to be effective.3 Where a liberal construction of a will would be effective and meaningful, and a strict literal construction would destroy a gift or disposition, the court will apply the principle so as to favour the liberal construction of the will.4 Notes 1 Langston v Langston (1834) 2 Cl & Fin 194 at 243; [1824-34] All ER Rep 598; (1834) 6 ER 1128 at 1147 . As to the respective roles of the courts of probate and construction see [395945].2 Known by the Latin term ut res magis valeat quam pereat, meaning it is better for a thing to have effect than to be made void: Roe d Wilkinson v Tranmarr (1757) Willes 682; [1558-1774] All ER Rep 461; (1757) 125 ER 1383.3 See [395-915], [395-960].4 Langston v Langston (1834) 2 Cl & Fin 194 at 243; [1824-34] All ER Rep 598; (1834) 6 ER 1128 at 1147 ; Roe d Wilkinson v Tranmarr (1757) Willes 682; [1558-1774] All ER Rep 461; (1757) 125 ER 1383. The paragraph below is current to 20 September 2007 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-970] Inaccurate descriptions of dispositions Where a will contains a partly true and a partly false description of a property or a person, if the court of construction can identify the person or property with the aid of admissible extrinsic evidence1 via the true part of the description, then the false part of the description will not be allowed to invalidate the gift. This principle of construction is known as falsa demonstratio non nocet, cum de corpore constat.2 The court cannot delete inaccurate words in a will3 but in certain circumstances it may incorporate words or ignore or reject the false part of a description and give effect to the true part in order to make a gift or disposition effective.4 It is of no consequence that the false portion of the description is at the beginning or end of a clause in the will.5 The court will not apply the principle if it cannot determine the most important part of the clause.6 It is important to distinguish between words which are inaccurate and words which are used to restrict a gift or disposition, the principle having no application in the latter situation.7 Where the whole description is inaccurate, and not just part of the description, the principle will only be applied where the surrounding circumstances and the whole context of the will clearly indicate the testators true intention without any element of doubt.8

In Queensland where a testator uses the term realty or personalty in a gift of residue, the strict interpretation will not be followed, so that if only one description is used all the property will pass as residue.9 Notes 1 Re Gifford (decd); Gifford v Seaman [1944] Ch 186 at 188; [1944] 1 All ER 268; (1944) 170 LT 267 per Simonds J; Re Edwards (decd); Turner v Roberts [1981] VR 794 at 797 per Kaye J; Re Osoba (decd); Osoba v Osoba [1979] 2 All ER 393; [1979] 1 WLR 247 at 254, CA; Re Price [1932] 2 Ch 54 ; Re Brocket; Dawes v Miller [1908] 1 Ch 185; (1907) 97 LT 780 ; Cowen v Truefitt Ltd [1899] 2 Ch 309; (1899) 81 LT 104 . As to the respective roles of the courts of probate and construction see [395-945].2 Falsa demonstratio non nocet, cum de corpore constat means that an inaccurate description does not vitiate a document or part thereof: see deeds and other instruments [140-630].3 See further [395-910], [395-955].4 As to the application of the principle to gifts of property see Re McBean (decd) (1973) 7 SASR 579 ; Re Hillier (decd) (1971) 1 SASR 140 at 145 per Walters J; Re Charleson (decd) [1968] VR 252 at 255 per Starke J; Re Hackett (decd) [1966] VR 232 at 237-8 per Winneke CJ; Re Gard (decd) [1965] SASR 244 ; In the Will of Rawes (decd); Crossthwaite v Collin [1917] VLR 323; (1917) 38 ALT 191 ; Re Anderson (1916) 12 Tas LR 71 ; Re Davis; Tuxfor v Davis (1906) 7 SR (NSW) 71; 23 WN (NSW) 237 ; In the Will of Sargood; Trustees, Executors & Co v Sargood (1904) 10 ALR 149; 26 ALT 51 ; Brown v Brown (1901) 1 SR (NSW) 218; 18 WN (NSW) 300 ; Gallagher v Adams (1887) 13 VLR 948; 9 ALT 148 . As to the application of the principle to gifts to persons see Re Gray (decd); Menary v Short [1919] St R Qd 295; [1919] QWN 50 ; Re OMara; OMara v OMara (1909) 10 SR (NSW) 67; 26 WN (NSW) 185 ; Re Garnock; Garnock v Garnock (1909) 10 SR (NSW) 51; 27 WN (NSW) 13 ; Re McNicol; Herron v McNicol [1909] VLR 311; (1909) 15 ALR 308; 30 ALT 220 ; In the Will of Loughlin; Acheson v OMeara [1906] VLR 597; (1906) 12 ALR 411; 28 ALT 28 ; Easton v Jeffray (1887) 13 VLR 900; 9 ALT 109 ; Gale v Mathew (1873) 7 SALR 97 .5 Hardwick v Hardwick (1873) LR 16 Eq 168 at 175; 21 WR 719 per Lord Selborne LC; Cowen v Truefitt Ltd [1899] 2 Ch 309 at 311-12; (1899) 81 LT 104 per Lindley MR.6 For example, where there are two or more claimants and the court is unable to decide who the testator intended to benefit: Re Constable (decd) [1971] VR 742 .7 Wrightson v Calvert (1860) 1 John & H 250; 70 ER 740 (testator had three grandchildren; reference to only two grandchildren not an error but clearly meant to exclude the third grandchild). See also Peoples v Simpson [2005] NSWSC 355; BC200502351 (children and grandchildren); Napper v Miller (2003) 11 BPR 21,175; [2003] NSWSC 376; BC200302126 (surviving grandchildren); Napper v Miller [2002] NSWSC 1122; BC200207054 (unborn children); Marks v Pope [2001] NSWSC 105; BC200100643 (daughters); Estate of Warren [2001] NSWSC 104; BC200100609 (step-children); Public Trustee (Qld) v Jacob [2006] QSC 372; BC200610323 (children and grandchildren); Hill v Handford [2001] QCA 319; BC200104674 (description of children); In the matter of Cuckow [1999] QSC 175; BC9904207 (grandchildren); Burman v Burman [1998] QCA 250; BC9804376 (surviving sons); Hopwood v Cuthbertson (2001) 10 Tas R 186; [2001] TASSC 64; BC200103007 (child); Cuthbertson v Hopwood [2000] TASSC 92; BC200003952 . 8 Re Lewiss Will Trusts; Lewis v Williams [1984] 3 All ER 930; [1985] 1 WLR 102 ; Re Gifford (decd); Gifford v Seaman [1944] Ch 186 at 189; [1944] 1 All ER 268; (1944) 170 LT 267 per Simonds J; Cowen v Truefitt Ltd [1899] 2 Ch 309 at 311; (1899) 81 LT 104 .9 (QLD) Succession Act 1981 s 29. See also Fotiadis v Jinks [2002] NSWSC 420; BC200202391 . The paragraph below is current to 20 September 2007 [395-975] Ejusdem generis rule The ejusdem generis1 rule provides that where a testator enumerates a set of things or individuals which together form a specific class2 and then follows the enumeration with a general word or phrase, the ambit of the general word or phrase will be limited by the previous words of narrower import.3 The principle of ejusdem generis is a special qualification of the usual meaning rule,4 as the general words are given a narrower secondary meaning and not their primary meaning.5 The court of construction will not apply the rule where to

do so would clearly be contrary to the testators intention6 or would lead to partial intestacy.7 The enumeration of specified items which is preceded by a gift in general terms will not be subject to the operation of the ejusdem generis rule.8 Notes 1 Ejusdem generis means of the same kind or nature. See Gregory v Fearn [1953] 2 All ER 559; [1953] 1 WLR 974 , CA.2 The rule will only be applied where the enumerated persons or things form an identifiable class: Tillmanns & Co v SS Knutsford Ltd [1908] 2 KB 385 at 402-3; [190810] All ER Rep 549; (1908) 99 LT 399 per Farwell LJ, CA.3 Lyndon v Standbridge (1857) 2 H & N 45 at 51; 157 ER 19 at 22 (general rule of construction that, where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with that class).4 See [395-925].5 Re Alleyn (decd) [1965] SASR 22 at 24-6 per Hogarth J; Re Fitzpatrick (1934) 78 Sol Jo 735; Re Layard; Layard v Bessborough (1916) 85 LJ Ch 505; 115 LT 15 (affirmed Re Layard; Layard v Bessborough (1917) 33 TLR 261, HL); Re Castlehow; Lamonby v Carter [1903] 1 Ch 352; (1902) 88 LT 455 .6 Benham v Benham (1910) 30 NZLR 30 at 32; 13 GLR 69 ; Tillmanns & Co v SS Knutsford Ltd [1908] 2 KB 385 at 402-3; [1908-10] All ER Rep 549; (1908) 99 LT 399 per Farwell LJ, CA; Moodie v Commins (1903) 22 NZLR 510; 5 GLR 198 ; Re Stockport Ragged, Industrial, and Reformatory Schools [1898] 2 Ch 687 at 696 ; Anderson v Anderson [1895] 1 QB 749 at 753; (1895) 72 LT 313 , CA. As to the respective roles of the courts of probate and construction see [395-945].7 Re Rowling (decd); Ellis v Rowling [1942] NZLR 88 ; Re Hall (decd); Bentick v Hall [1918] VLR 448; (1918) 24 ALR 229 . Thus, residuary clauses such as a general residuary bequest will be unlikely to be construed according to the ejusdem generis rule: Benham v Benham (1910) 30 NZLR 30 at 32; 13 GLR 69 ; Tillmanns & Co v SS Knutsford Ltd [1908] 2 KB 385 at 402-3; [1908-10] All ER Rep 549; (1908) 99 LT 399 per Farwell LJ, CA. As to the presumption that the testator did not intend to die intestate see [395-960].8 Bridges v Bridges (1729) Eq Cas Abr 330; 22 ER 281; Re Duffell; Equity Trustees Executors and Agency Co Ltd v Duffell [1926] VLR 489; (1926) 48 ALT 105 ; Re Fleetwood; Sidgreaves v Brewer (1880) 15 Ch D 594; 49 LJ Ch 514 ; Re Kendalls Trust (1851) 14 Beav 608; 51 ER 418. The paragraph below is current to 20 September 2007 [395-980] Ambiguous words will not restrict an earlier clear gift Where one clause establishes a clear gift, and a later clause appears inconsistent with the gift but is ambiguous or unclear, the later ambiguous clause will not restrict or destroy the original clear gift.1 The court of construction will attempt to determine the testators intention, specifically, whether he or she intended to qualify an earlier gift made in the will, as shown by the will and codicils read as a whole2 and to give effect to that intention.3 Where the intention to revoke or qualify a gift is clear, and there is an inconsistency between the will and a codicil, the court may construe the codicil either as qualifying the will in some way or as partly (rather than wholly) revoking the gift in the will.4 Notes 1 Perpetual Trustee Co Ltd v Wright; Re Will of Cox (Jnr) (decd) (1987) 9 NSWLR 18 ; Smidmore v Smidmore (1905) 3 CLR 344; 12 ALR 203; [1905] HCA 58; BC0500020 ; Re Kipping; Shearer v Hill [1948] St R Qd 247 , SC(QLD), Full Court; Re Brown; Cavanagh v Cronin [1940] St R Qd 154 , SC(QLD), Full Court; Re Freeman; Hope v Freeman [1910] 1 Ch 681 at 691; (1910) 102 LT 516 per Buckley LJ, CA; Peter v Shipway (1908) 7 CLR 232 at 243; 15 ALR 214 per Griffith CJ; Re Jones; Richards v Jones [1898] 1 Ch 438 at 441; (1898) 78 LT 74 per Byrne J.2 Doe d Hearle v Hicks (1832) 8 Bing 475; 131 ER 476 . As to the respective roles of the courts of probate and construction see [395-945].3 Re Syme (decd) [1980] VR 109 at 113 per Lush J.4 Re Sewell [1929] SASR 226 ; Re McGeorge [1921] SASR 1 ; Re

Freeman; Hope v Freeman [1910] 1 Ch 681; (1910) 102 LT 516 , CA; Re Day; Kavanagh v Day (1907) 7 SR (NSW) 484; 24 WN (NSW) 117 ; National Trustees, Executors & Agency Co of Australia v McGuigan (1900) 28 VLR 273; 7 ALR 36 ; In the Will of Jackson; Jackson v Jackson (1868) 7 SCR (NSW) Eq 28; Kellett v Kellett (1868) LR 3 HL 160 at 167 per Lord Cairns. Where the testator provides a life interest to his or her spouse, with a remainder to the children, the earlier gift to the spouse is qualified by the later interest in remainder to the children: Public Trustee v Roberts [1966] SASR 269 ; Re Inkster [1939] SASR 121 ; Re Warren [1936] SASR 457 ; Re Pryor; Woods v Pryor [1923] SASR 199 ; Re Carless; Carless v Carless (1911) 11 SR (NSW) 388; 28 WN (NSW) 112 ; Re Ridgway; Sutherland v Ridgway (1900) 26 VLR 254; 6 ALR 93 ; Brown v Brown (1886) 20 SALR 98 . Another construction to which the court may give effect is a gift of a life interest to the spouse with a general power of appointment over the whole property the subject of the gift, allowing the spouse to appoint to himself or herself, coupled with a gift to the children if no appointment is executed: Re Rollings (1974) 9 SASR 418 ; In the Estate of Ward (decd) [1957] SASR 125 ; Re McIntosh [1929] SASR 21 ; Re Ryder [1914] 1 Ch 865 ; Re Sanford; Sanford v Sanford [1901] 1 Ch 939 . As to intention to revoke see [395615]. The paragraph below is current to 20 September 2007 [395-985] Rule of despair The rule of despair states that if there are two clauses in a testamentary instrument which conflict, the later clause will prevail over the earlier one.1 However, the rule may be displaced and the former clause given effect where:2 (1) the earlier clause is clear and the later conflicting clause is ambiguous, the rule that ambiguous words will not restrict a clear gift will apply;3 and (2) after reading the will as a whole, and ascertaining the intention of the testator, it appears that the intention was more accurately expressed by the earlier clause rather than by the later one.4 The rule will not be applied where its application would result in an intestacy.5 Inconsistencies between a clause in a will and a clause in a later codicil may result in the codicil partially revoking the will if there is a clear expression of intention to do so in the words of the codicil.6 Notes 1 Re Potters Will Trusts [1944] Ch 70 at 77 ; Re Hammond; Hammond v Treharne [1938] 3 All ER 308 ; Doggett v Lenehan [1926] St R Qd 84 at 88 per Macnaughton J; Gallagher v Adams (1887) 13 VLR 948 at 955; 9 ALT 148 per Webb J; Re Bywater; Bywater v Clarke (1881) 18 Ch D 17 at 24 ; Doe d Leicester v Biggs (1809) 2 Taunt 109; [1803-13] All ER Rep 546; (1809) 127 ER 1017 .2 Re Dubois [1940] SASR 1 at 3 per Murray CJ; Re Hamersley; Hamersley v Hamersley (1933) 35 WALR 85 ; Doggett v Lenehan [1926] St R Qd 84 at 88 per Macnaughton J; Cordeaux v Corbidge (1915) 32 WN (NSW) 15; Piper v Piper (1886) NZLR 5 SC 135 at 145.3 See [395-980]. See also Peter v Shipway (1908) 7 CLR 232 at 243; 15 ALR 214 per Griffith CJ; Re Kipping; Shearer v Hill [1948] St R Qd 247 , SC(QLD), Full Court; Re Brown; Cavanagh v Cronin [1940] St R Qd 154 , SC(QLD), Full Court.4 Re Dubois [1940] SASR 1 at 3 per Murray CJ; Re Hamersley; Hamersley v Hamersley (1933) 35 WALR 85 ; Doggett v Lenehan [1926] St R Qd 84 at 88 per Macnaughton J; Cordeaux v Corbidge (1915) 32 WN (NSW) 15.5 Piper v Piper (1886) NZLR 5 SC 135 at 138 per Johnston J. As to the presumption against intestacy see further [395-960] and [395-1500]-[396-2095].6 Re McGeorge [1921] SASR 1 at 4 per Gordon J. As to revocation generally see [395-595]-[395-645].

The paragraph below is current to 20 September 2007 [395-990] Uncertainty A disposition may fail on the grounds of uncertainty where the court of construction is unable to discern the testators intention1 from the words of the will. 2 A gift will be void for uncertainty if the beneficiary3 or the content of the disposition4 remains unidentifiable, despite an examination of extrinsic evidence admitted under the armchair rule or to clarify an equivocation.5 Where there is even a slight reason to prefer one ambiguous construction over another, the court will do so, even on the basis that it is closer to intestacy than the testators intention.6 Notes 1 See [395-915]. As to the respective roles of the courts of probate and construction see [395945].2 See [395-920]. See also Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 ; Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716 at 719 per Holland J. See, for example, Lutheran Church of Australia South Australia District Inc v Farmers Co-op Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545; (1970) 44 ALJR 176 . See also Hammond v Hammond [2007] NSWSC 106; BC200700733 ; Hyde v Holland [2003] NSWSC 733; BC200304479 ; Rennes v Death [2003] NSWSC 708; BC200304441 ; Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292; BC200301648 ; National Trust of Australia (NSW) v Amour (unreported, (CA)NSW, Meagher, Sheller and Cole JJA, 3 December 1997, BC9706373); Ellaway v Lawson [2006] QSC 170; BC200605353 ; Prosper v Wojtowicz [2005] QSC 177; BC200504808 ; Tower Trust Ltd v Worden [2004] SASC 159; BC200403304 ; Armstrong v Stokell [2001] TASSC 132; BC200107221 ; Bakranich v Robertson [2005] WASC 12; BC200500495 ; Perpetual Trustees (WA) Ltd v Riverwest Pty Ltd [2004] WASC 81; BC200402496 ; Re Kuzma; ex parte Public Trustee [2002] WASC 303; BC200207695 .3 In the Estate of Banks [1966] SASR 290 ; Re Berry (decd); Public Trustee v Berry [1968] SASR 286 ; Re McMahon [1913] St R Qd 47 . As to the identification of the beneficiary see [3951070].4 Asten v Asten [1894] 3 Ch 260 ; Re Sutherland [1909] VLR 223 ; Re Gibson; Doig v Haynes [1929] SASR 321 .5 Extrinsic evidence may be admissible under the statutory provisions in the Australian Capital Territory, the Northern Territory, Tasmania and Victoria: see [395-1005]. As to the armchair rule see [395-935]. As to equivocation see [395-1000].6 Gerhardy v British & Foreign Bible Society Inc (SA) (1982) 30 SASR 12 at 26 per Legoe J. See, for example, Re Ansell; Wardlaw v Eleblade [1947] Tas SR 36 . As to the presumption against intestacy see [395-960].

Source

[Halsbury's Laws of Australia]

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