How can we help with Construction and Rectification Issues for Wills, in particular Beneficiaries?

When drafting your will there are obviously many issues you should consider, including simple issues such as how you divide your estate, who should be appointed as your executor/s and more complex issues such as whether creating a testamentary trust suits your needs.

This article addresses the situation where a beneficiary does not survive a testator and the impact of the anti-lapse provision contained in section 33N of the Succession Act 1981 (Qld) (“the Act”).

Part 2, Division 5, of the Act deals with interpretation of wills. Section 33B provides to the effect that unless a contrary intention appears in the will, where a “disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator”. The application of this provision has the effect that any disposition made to a person who is deceased at the time of the testator’s death will lapse.

However, section 33N of the Act must also be considered, which effectively provides that where a testator leaves a gift to a person who is his/her issue, in the event the issue fails to survive the testator by 30 days, the gift will pass to their issue unless there is a contrary intention in the will. For example, if you leave a gift to your child and your child does not survive you for a period of 30 days, then under section 33N, your child’s child would take your child’s share. This provision prevents the original give to your child from lapsing.

An example of the Court’s consideration of the operation of this section is a decision of Mullins J in McPherson v Byrne & Ors [2012] QSC 394. That case involved a very simple will which disposed of the testator’s estate in favour of her two sons as follows:

   “3.  I GIVE my shares in Geo W McPherson Nominees Pty Ltd ACN 010 001 368 to MAY McPHERSON NOMINEES PTY LTD ACN 010 000 567 as trustee for the May McPherson Family Trust. 

  1.  I GIVE my shares in May McPherson Nominees Pty Ltd ACN 010 000 567 to my son DONALD BRUCE McPHERSON.

    5.  I GIVE the rest and residue of my estate to such of GRAHAM ROSS McPHERSON and the said DONALD BRUCE McPHERSON as shall survive me and if more than one in equal shares as tenants in common.”

The deceased’s son, Donald McPherson had predeceased the deceased.

The remaining son, Graham McPherson brought an application for a declaration that, amongst other orders, section 33N did not apply to the gift in clause 4 as there is a contrary intention (expressed in clause 5 of the will). The application was opposed by Donald’s children (the second respondents to the application). Donald’s children filed their own application seeking rectification of the will by deleting the words “such of” and the words “as shall survive me and if more than one in equal shares as tenants in common” in clause 5 of the will.

The solicitor who took instructions from the deceased gave evidence to the effect that the deceased wished that in the event of either of her sons pre-deceasing her, then their respective shares of her estate would pass to her grandchildren.

Her Honour determined that the ordinary meaning of the terms of the will when read together with the anti-lapse provision in section 33N meant that the disposition in clause 4 passed to Donald’s children. The Court was not satisfied that a contrary intention appeared in the will and ordered that the words “such of” and the words “as shall survive me and if more than one in equal shares as tenants in common” be deleted.

It is important to consider whether the effect of these sections in the Succession Act reflects your wishes and if not, a clause must be inserted in the will to which establishes an intention to the contrary. This will ensure your wishes are properly carried out and that your estate is not eroded by litigation aimed at resolving preventable interpretation issues.

Tom Rynders
Senior Associate
Creevey Russell Lawyers
Ph: 07 3009 6555
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