665
THE
SUCCESSION ACTS, 1867 to 1968
SUCCESSION ACT of 1867
31 Vic. No. 24
Amended by
Acts Citation Act of 1903, 3 Edw. 7 No. 10
Statute Law Revision Act of 1908, 8 Edw. 7 No. 18
Wills (Soldiers, Sailors, and Members of the Air Force) Act of 1940,
4 Geo. 6 No.4
Succession Acts Amendment Act of 1942, 6 Geo. 6 No. 20
Succession Acts and Another Act Amendment Act of 1943, 7 Geo. 6
No. 28
Succession Acts Amendment Act of ] 968, No. 8
An Act to Consolidate and Amend the Laws Relating to Dower
Inheritance Succession Wills Powers Uses and Remedies against
Realty
[Assented to 28 December 1867 J
References to "Pring's Statutes" and to Colonial Acts were omitted from the
sectional notes throughout this Act by the Acts Citation Act of 1903, s. 10.
Collective title conferred by Act of 1968, No.8, s. 1 (3).
[Preamble repealed by Statute Law Revision Act of 1908, s. 2. J
PART I-PRELIMINARY
Heading inserted by Act of 1965, No.8, s. 4.
1. Division of Act.
follows:-
This Act is divided into Parts and a Schedule as
PART I-PRELIMINARY;
PART II-DoWER, DESCENT, ESCHEAT, FORHTi liRE, ETC.;
PART III-DISTRIBUTION ON INTESTACY;
PART IV-WILLS, POWERS. USES, REMEDIES AGAINST REALTY,
ETC.;
PART V-FAMILY PROVISION;
PART VI-GENERAL;
SCHEDULE.
InseI1ed by Act of 1968, No.8, s. 4.
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INTERPRETATION
lAo Meaning of words in the Act.
That the words and expressions
hereinafter mentioned which in their ordinary signification have a more
confined or a different meaning shall in this Act except where the nature
of the provision or the context of the Act shall exclude such construction
be interpreted as follows (that is to say)
the word "land" shall extend to messuages and all other hereditaments whether corporeal or incorporeal and whether freehold or of any other tenure and whether descendible according
to the common law or according to any other law or custom
and to money to be laid out in the purchase of land and to
chattels and other personal property transmissible to heirs
and also to any share of the same hereditaments and properties or any of them and to any estate of inheritance or
estate for any life or lives or other estate transmissible to
heirs and to any possibility right or title of entry or action
and any other interest capable of being inherited and whether
the same estates possibilities rights titles and interests or
any of them shall be in possession reversion remainder
or contingency
and the words "the purchaser" shall mean the person who last
acquired the land otherwise than by descent or than by any
escheat partition or inclosure by the effect of which the land
shall have become part of or descendible in the same manner
as other land acquired by descent
and the word "descent" shall mean the title to inherit land by
reason of consanguinity as well where the heir shall be an
ancestor or collateral relation as where he shall be a child or
other issue
and the expression "descendants" of any ancestor shall extend to
all persons who must trace their descent through such
ancestor
and the expression "the person last entitled to land" shall extend
to the last person who had a right thereto whether he did or
did not obtain the possession or the receipt of the rents and
profits thereof
and the word "assurance" shall mean any deed or instrument
(other than a will) by which any land shall be conveyed or
transferred at law or in equity
and the word "will" shall extend to a testament and to a codicil
and to an appointment by will or by writing in the nature of
a will in exercise of a power and also to a disposition by will
and testament or devise of the custody and tuition of any
child and to any other testamentary disposition
and the words "real estate" shall extend to messuages lands rents
and hereditaments whether freehold or of any other tenure
and whether corporeal incorporeal or personal and to any
undivided share thereof and to any estate right or interest
(other than a chattel interest) therein
and the words "personal estate" shall extend to leasehold estates
and other chattels real and also to moneys shares of Government and other funds securities for money (not being real
SUCCESSION ACT OF 1867
ss.lA-3
667
estates) debts choses in action rights credits goods and all
other property whatsoever which by law devolves upon the
executor or administrator and to any share or interest therein
and the word "Part" shall mean Part of this Act
3 & 4 Wm. 4 c. 105 s. 1. Provided that in the fourteen sections
next hereupon following the word "land" shall not extend to such
hereditaments as are not now liable to dower nor any land which by any
Act heretofore passed may have been exempted from dower.
Originally s. 1. Amended by Statute Law Revision Act of 1908, s. 5; Acts
Citation Act of 1903, s. 10; renumbered s. lA and amended by Act of 1968,
No.8, ss. 5, 6.
"Descent".-See now Intestacy Act of 1877, s. 13, p. 634, ante, and notes
thereto.
"Will".-FormerJy a distinction was made in the use of the terms "will"
and "testament". The distinction is said to be that "will" is a general term, and
that where lands or tenements are devised, though no executor is appointed, the
instrument is properly called a will, and that where it concerns chattels only and
appoints an executor, it is called a testament (see Habbury's Laws of England
(1 st ed.), Vol. 28, title Wills, p. 505). The distinction, however, was never
rigidly adhered to.
A will and codicil being one instrument, the will may be interpreted by
reference to the codicil, Jenkins v. Stewart (1906), 3 C.L.R. 799.
As to what form of document amounts to an appointment by will in exercise
of a power, see Re Barnett, [1908J 1 Ch. 402. See also s. 59, and notes thereto.
As to testamentary appointment of guardians, see Children'S Services Act
1965-1970, s. 90, 1965 Annual Volume, p. 559.
"Personal Estate".-As to devolution of personalty upon personal representatives, see 16 Halsbury's Laws of England, 3rd ed., p. 283.
PART II-DOWER, DESCENT, ESCHEAT, FORFEITURE, ETC.
Heading inserted by Act of 1968, No.8, s. 7.
RIGHT TO DOWER OR PROVISION
2. Seisin shall not be necessary to give title to dower. 3 & 4 Wm.
4 c. 105 s. 3. When a husband shall have been entitled to a right of
entry or action in any land and his widow would be entitled to dower out
of the same if he had recovered possession thereof she shall be entitled to
dower out of the same although her husband shall not have recovered
possession thereof
Provided that such dower be sued for or obtained within the period
during which such right of entry or action might be enforced.
The statute 3 & 4 Will. 4, c. 105, referred to in the sectional notes to this and the
following sections, is the Dower Act. 1833, for which see 9 Halsbury's Statutes
of England, 2nd ed., p. 678.
Estates and rights of dower or by the curtesy were abolished in Queensland
by the Intestacy Act of 1877, s. 28, p. 637, ante. As to the nature of dower, see
32 Halsbury's Laws of England, 3rd cd., p. 302. As to the nature of curtesy, see
ibid., p. 299.
3. Widows to be entitled to dower out of equitable estates. 3 & 4
Wm. 4 c. 105 s. 2. When a husband shall die beneficially entitled to
any land for an interest which shall not entitle his widow to dower
out of the same at law and such interest whether wholly equitable or
partly legal and partly equitable shall be an estate of inheritance in
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possession or equal to an estate of inheritance in possession (other than
an estate in joint-tenancy) then his widow shall be entitled in equity to
dower out of the same land.
See notes to s. 2.
4. Bequest of personal estate to widow shall not bar her dower.
3 & 4 Wm. 4 c. 105 s. to. No gift or bequest made by any husband
to or for the benefit of his widow of or out of his personal estate or of
or out of any of his land not liable to dower shall defeat or prejudice her
right to dower unless a contrary intention shall be declared by his will.
See notes to s. 2.
5. Agreement not to bar dower may be enforced. 3 & 4 Wm. 4
c. 105 s. 11. Provided always that nothing in this Act contained shall
prevent any court of equity from enforcing any covenant or agreement
entered into by or on the part of any husband not to bar the right of
his widow to dower out of his lands or any of them.
See notes to s. 2.
6. Legacies in bar of dower still entitled to preference. 3 & 4 Wm.
4 c. 105 s. 12. Nothing in this Act contained shall interfere with any
rule of equity or of ecclesiastical law by which legacies bequeathed to
widows in satisfaction of dower are entitled to priority over other
legacies.
See notes to s. 2.
RESTRICTIONS ON THE RIGHT
7. Certain dowers abolished. 3 & 4 Wm. 4 c. 105 s. 13. No widow
shall hereafter be entitled to dower ad ostium ecclesi<e or dower ex assensu
patris.
Dower has been completely abolished by the Intestacy Act of 1877, s. 28,
p. 637, ante. See further, notes to s. 2, ante.
8. Residence of wife in the colony or knowledge of her existence at
time of sale required. No claim to dower on the part of the widow
of any deceased owner of land shall have any force at law or in equity
against any person claiming by purchase from such owner for valuable
consideration unless it shall be proved that the claimant resided in
Queensland with and as the wife of such deceased owner before his sale
of the land or that the purchaser had notice before or at the time of
sale of the fact of the deceased owner having been married to the
claimant and in case the defendant resisting such claim shall derive title
through the original purchaser from such deceased owner it shall not be
sufficient to prove such knowledge on the part of the original purchaser
without also showing that before the defendant purchased the land either
the claimant had resided with her husband in the said colony or the
defendant had become acquainted with the said fact of marriage.
See notes to s. 2.
9. Claim to dower limited. The claim to dower out of any land by
the widow of any person who has or shall have alienated such land for
valuable consideration shall be limited to one-third of the estimated
rent for the time being of such land considered as if remaining in the
state of improvement in which the same shall have been at the time of
such alienation and shall not be recoverable by metes and bounds hut
SUCCESSION ACT OF 1867
,-'S.3-16
669
shall be assignable by a court of equity only with liberty nevertheless
to such court to direct the trial at law of any issue of fact on which the
assessment of the claim shall depend.
See notes to s. 2.
10. No dower out of estate disposed of. 3 & 4 Wm. 4 c. 105 s. 4.
No widow shall be entitled to dower out of any land which shall have
been absolutely disposed of by her husband in his lifetime or by his
will.
See notes to s. 2.
11. Dower may be barred by a declaration in a deed. 3 & 4 Wm.
4 c. 105 s. 6. A widow shall not be entitled to dower out of any land
of her husband when in the deed by which such land was conveyed to
him or by any deed executed by him it shall be declared that his widow
shall not be entitled to dower out of such land.
See notes to s. 2.
12. Or by a declaration in the husband's will. 3 & 4 Wm. 4 c. 105
s. 7. A widow shall not be entitled to dower out of any land of which
her husband shall die wholly or partially intestate when by the will of
her husband duly executed for the devise of freehold estates he shall
declare his intention that she shall not be entitled to dower out of such
land or out of any of his land.
See notes to s. 2.
13. Dower shall be subject to restrictions. 3 & 4 Wrn. 4 c. 105
s. 8. The right of a widow to dower shall be subject to any conditions
restrictions or directions which shall be declared by the will of her
husband duly executed as aforesaid.
See notes to s. 2.
14. Devise of real estate to the widow shall bar her dower. 3 & 4
Wm. 4 c. 105 s. 9. Where a husband shall devise any land out of
which his widow would be entitled to dower if the same were not so
devised or any estate or interest therein to or for the benefit of his
widow such widow shall not be entitled to dower out of or in any land
of her said husband unless a contrary intention shall be declared by
his will.
See notes to s. 2.
15. Priority to partial estates charges and specialty debts.
3 & 4
Wm. 4 c. 105 s. 5. All partial estates and interests and all charges
created by any disposition or will of a husband and all debts encumbrances contracts and engagements to which his land shall be subject
or liable shall be valid and effectual as against the right of his widow
to dower.
See notes to s. 2.
DESCENT TO BE TRACED FROM THE PURCHASER
16. Descent shall always be traced from the purchaser but the last
owner shall be considered to be the purchaser unless the contrary be
proved. 3 & 4 Wm. 4 c. 106 s. 2. In every case descent shall be
traced from the purchaser and to the intent that the pedigree may never
be carried further back than the circumstances of the case and the nature
of the title shall require the person last entitled to the land shall for
the purposes of this Act be considered to have been the purchaser
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thereof unless it shall be proved that he inherited the same in which
case the person from whom he inherited the same shall be considered
to have been the purchaser unless it shall be proved that he inherited
the same and in like manner the last person from whom the land shall
be proved to have been inherited shall in every case be considered to
have been the purchaser unless it shall be proved that he inherited the
same.
In the case of persons dying on or after 1 July, 1878, land undisposed of
by will has been devisable and distributable in the same manner as personal
estate. See Intestacy Act of 1877, ss. 13, 57, pp. 634, 639, allte. For the rules for
distribution on an intestacy, see ss. 29 et seq., of this Act. References in any Act
to the "heir" in relation to land devolving on intestacy are deemed to refer if
necessary to the person in whom the land is vested under Intestacy Act of 1877,
p. 633, ante, for the time being, ibid., s. 27. For the persons in whom land
is so vested, see ss. 12-14 of that Act and Public Curator Acts, 1915 to 1957,
s. 30 (title TRUSTEES AND EXECUTORS), replacing the former s. 11 of Intestacy
Act of 1877.
This section and ss. 17-27 apply, accordingly, only in the case of persons dying
before 1 July, 1878. They may still be important, however, in deducing title to
land upon sale, though, it would seem, only on rare occasions. Title to land under
Real Property Acts, 1861 to 1963, title REAL PROPERTY, Vol. 14, p. 633, is
now proved by production of the certificate of title as evidence of registration
(see ibid., ss. 33, 96), and in the case of land not under that Act, the length
of title which must be shown is fixed by law at sixty years in the absence of
stipulation to the contrary, adopting a practice of conveyancers, Barnwell v. Harris
(1809), 1 Taunt. 430; Cooper v. Emery (1844), 13 L.J. Ch. 275; 34 Halsbury's
Laws of England, 3rd ed., p. 272.
Sections 16-24 of Succession Act of 1867 follow the provisions of Inheritance
Act, 1833 (3 & 4 Will. 4. c. 106), for which see 9 Halsbury's Statutes of England,
2nd ed., p. 682. That Act was first adopted here by the Act 7 Will. 4, No.8.
See generally as to the effect of the mles contained in that Act, 16 Halsbury's Laws
of England, 3rd ed., p. 430.
For the terms "descent", "purchaser", and "person last entitled to land", see s. 1.
The person entitled to take as heir-at-Iaw had to be ascertained as at the death
of the intestate, Peud v. Peud (1912), 15 C.L.R. 510.
17. Heir entitled under a will shall take as devisee and a limitation
to the grantor or his heirs shall create an estate by purchase. 3 & 4
Wm. 4 c. 106 s. 3. When any land shall have been devised by any
testator to the heir or to the person who shall be the heir of such
testator such heir shall be considered to have acquired the land as a
devisee and not by descent and when any land shall have been limited
by any assurance to the person or to the heirs of the person who shall
thereby have conveyed the same land such person shall be considered
to have acquired the same as a purchaser by virtue of such assurance
and shall not be considered to be entitled thereto as his former estate or
part thereof.
See notes to s. 16; 16 Halsbury's Laws of England, 3rd ed .. p. 424.
18. Where heirs take by purchase under limitations to the heirs of
their ancestor the land shall descend as if the ancestor had been the
purchaser. 3 & 4 Wm. 4 c. 106 s. 4. When any person shall have
acquired any land by purchase under a limitation to the heirs or to the
heirs of the body of any of his ancestors contained in any assurance
or under a limitation to the heirs or to the heirs of the body of any
of his ancestors or under any limitation having the same effect contained
in a will of any testator then and in any of such cases such land shall
descend and the descent thereof shall be traced as if the ancestor named
in such limitation had been the purchaser of such land.
See notes to s. 16; 16 Halsbury's Laws of England, 3rd ed., p. 424.
SUCCESSlON ACT OF 1867
SS.
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671
DESCENT TO BE LINEALLY TRACED
19. Brothers, etc., shall trace descent through their parent. 3 & 4
Wm. 4 c. 106 s. 5. No brother or sister shall be considered to inherit
immediately from his or her brother or sister but every descent from a
brother or sister shall be traced through the parent.
See notes to s. 16.
20. Lineal ancestor may be heir in preference to collateral person
claiming through him. 3 & 4 Wm. 4 c. 106 s. 6. Every lineal ancestor
shall be capable of being heir to any of his issue and in every case where
there shall be no issue of the purchaser his nearest lineal ancestor shall
be his heir in preference to any person who would have been entitled to
inherit either by tracing his descent through such lineal ancestor or in
consequence of there being no descendant of such lineal ancestor so
that the father shall be preferred to a brother or sister and a more
remote lineal ancestor to any of his issue other than a nearer lineal
ancestor or his issue.
See notes to s. 16; 16 Halsbury's Laws of England, 3rd cd., p. 425.
MATERNAL ANCESTORS
21. The male line to be preferred. 3 & 4 Wm. 4 c. 106 s. 7. None
of the maternal ancestors of the person from whom the descent is
to be traced nor any of their descendants shall be capable of inheriting until all his paternal ancestors and their descendants shall have
failed and also no female paternal ancestor of such person nor any of
her descendants shall be capable of inheriting until all his male paternal
ancestors and their descendants shall have failed and no female maternal
ancestor of such person nor of any of her descendants shall be capable
of inheriting until all his male maternal ancestors and their descendants
shall have failed.
As amended by Statute Law Revision Act of 1908, s. 5.
See notes to s. 16; 16 Halsbury's Laws of England, 3rd ed., p. 425.
See Re Gardiner, [1938] S.A.S.R. 6.
22. The mother of more remote male ancestor to be preferred to the
mother of the less remote male ancestor. 3 & 4 Wm. 4 c. 106 s. 8.
Where there shall be a failure of male paternal ancestors of the person
from whom the descent is to be traced and their descendants the mother
of his more remote male paternal ancestor or her descendants shall be
the heir or heirs of such person in preference to the mother of a less
remote male paternal ancestor or her descendants and where there shall
be a failure of male maternal ancestors of such person and their
descendants the mother of his more remote male maternal ancestor and
her descendants shall be the heir or heirs of such person in preference
to the mother of a less remote male maternal ancestor and her
descendants.
See notes to s. 16.
THE HALF BLOOD
23. Half blood if on the part of a male ancestor to inherit after the
whole blood of the same degree if on the part of a female ancestor
after her. 3 & 4 Wm. 4 c. 106 s. 9. Any person related to the person
from whom the descent is to be traced by the half blood shall be capable
of being his heir and the place in which any such relation by the half
blood shall stand in the order of inheritance so as to be entitled to
inherit shall be next after any relation in the same degree of the whole
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blood and his issue where the common ancestor shall be a male and
next after the common ancestor where such common ancestor shall be
a female so that the brother of the half blood on the part of the father
shall inherit next after the sisters of the whole blood on the part of
the father and their issue and the brother of the half blood on the part
of the mother shall inherit next after the mother.
See notes to s. 16.
ESCHEAT AND FORFEITURE
24. After the death of a person attainted his descendants may inherit.
3 & 4 Wm. 4 c. 106 s. 10. When the person from whom the
descent of any land is to be traced shall have had any relation who
having been attainted shall have died before such descent shall have
taken place then such attainder shall not prevent any person from
inheriting such land who would have been capable of inheriting the
same by tracing his descent through such relation if he had not been
attainted.
See notes to s. 16; E,cheat Acts, 1891 to 1962, s. 12, title SUPREME COURT
AND PRACDCE.
25. No escheat of property held upon trust or mortgage. No lands
stock or chose in action vested in any person upon any trust or by
way of mortgage or any profits thereof shall escheat or be forfeited to
Her Majesty by reason of the attainder or conviction for any offence
of such trustee or mortgagee but shall remain in such trustee or mortgagee or survive to his or her co-trustee or descend or vest in his or
her representative as if no such attainder or conviction had taken place.
See also Escheat Acts, 1891 to 1962,
PRACTICE.
SS.
II, 12. title SUPREME COURT AND
26. Act not to prevent escheat or forfeiture of beneficial interest. Nothing
contained in this Act shall prevent the escheat or forfeiture of any
lands or personal estate vested in any such trustee or mortgagee so
far as relates to any beneficial interest therein of any such trustee or
mortgagee but such lands or personal estate so far as relates to any
such beneficial interest shall be recoverable in the same manner as if
this Act had not passed.
As amended by Acts Citation Act of 1903, s. 10.
Equitable interests are snbject to escheat along with legal interests, Escheat
Acts, 1891 to 1962, 5S. II, 12, title SUPREME COURT AND PRACTICE.
FAILURE OF HEIRS
2'1. Descent how to be traced. 22 & 23 Vic. c. 35 s. 19. When
there shall be a total failure of heirs of the purchaser or where any
land shall be descendible as if an ancestor had been the purchaser
thereof and there shall be a total failure of the heirs of such ancestor
then and in every such case the land shall descend and the descent shall
thenceforth be traced from the person last entitled to the land as if he
had been the purchaser thereof.
This section follows Law of Property Amendment Act, 1859, 22 & 23 Vic. c. 35.
For "the person last entitled to land", see s. 1.
See also notes to ~. 16.
SUCCESSION ACT OF 1867
ss.23·29
673
ESTATES PUR AUTRE VIE
28. Estates pur autre vie. 7 Wm. 4 & 1 Vic. c. 26 s. 6. See 54
Geo. 3 c. 15 s. 4. If no disposition by will shall be made of any
estate pur autre vie of a freehold nature the same shall be chargeable
in the hands of the heir if it shall come to him by reason of special
occupancy as assets by descent as in the case of freehold land in feesimple and in case there shall be no special occupant of any estate
pur autre vie whether freehold or of any other tenure and whether a
corporeal or incorporeal hereditament it shall go to the executor or
administrator of the party that had the estate thereof by virtue of
the grant and if the same shall come to the executor or administrator
either by reason of a special occupancy or by virtue of this Act it shall
be assets in his hands and shall go and be applied and distributed in the
same manner as the personal estate of the testator or intestate.
A person entitled to an estate pur autre vie could not at common law dispose
of it by will nor did the estate pass to his heirs on intestacy unless they were
mentioned in the gift. Section 36 of this Act allows such estates to be disposed
of by will and the above section provides that they shall pass upon intestacy
in the same manner as other property. The rights of persons becoming entitled
on the death of cestui que vie are protected by the Cestui Que Vie Act, 1707
(Imperial), title REAL PROPERTY, Vol. 14, p. 621, which is expressly applied in
. this State by the Real Property Acts, 1861 to 1963, s. 90, title REAL PROPERTY,
Vol. 14, p. 695.
See also s. 74.
PART Ill-DISTRIBUTION ON INTESTACY
Heading substituted by Act of 1968, No.8, s. 8.
29. Interpretation.
( I ) In this Part, unless the contrary intention
appears"Child"-includes a child of an intestate born out of lawful
wedlock whose parents have intermarried since the birth of
that child notwithstanding that, by the law of the State,
Territory or country where the father of that child was
domiciled at the date of his marriage to the mother of that
child, such child did not become legitimated by virtue of
that marriage;
"Intestate"-means a person who dies and either does not leave
a will or leaves a will but does not dispose effectively by the
will of the whole or part of his real or personal property;
"Residuary estate"-in relation to an intestate, means(a) in the case of an intestate who leaves a will-the real and
personal property of the intestate that is not effectively
disposed of by the will; or
(b) in any other case-the real and personal property of the
intestate,
which is available for distribution after payment thereout of
all such funeral, testamentary and administration expenses,
duties, debts and other liabilities as are properly payable
thereout.
(2) For the purposes of this Part, in ascertaining relationship It IS
immaterial whether the relationship is of the whole blood or the half
blood.
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(3) The provlSlons of this Part shall be subject to the provisions
of an order made under and in accordance with the provisions of Part V
of this Act and shall be applied accordingly.
Substituted by Act of 1968, No.8, s. 8.
Child-As to the rights of adopted children, see Adoption of Children Acts.
1964 to 1967, ss. 28, 29, 1964 Annual Volume, p. 561.
Intestate-See also Intestacy Act of 1877, p. 633, ante.
Subsection (3 )-Part V relates to family provision.
See ss. 89 et seq.
Compare Re Mayes, [1957] Q.W.N. 23.
30. Distribution of residuary estate on intestacy. The person or persons
entitled to take an interest in the residuary estate of an intestate, and
the interest in that estate which that person is or those persons are
entitled to take shall be ascertained by reference to the Schedule to this
Act according to the facts and circumstances existing in relation to the
intestate.
For the purposes of this Act(a) the brothers and sisters of the intestate;
(b) the grandparents of the intestate;
(c) the brothers and sisters of a parent of the intestate;
(d) the children of any brothers or sisters of an intestate who
predecease the intestate; and
(e) the children of any brothers or sisters of a parent of an
intestate who predecease the intestate,
are the next of kin of the intestate.
Substituted by Act of 1968, No.8, s. 8.
A bequest to "personal representatives" was held in the particular context tf>
mean the next of kin, Re Corrigan, [1903] Q.W.N. 4.
As to partial intestacies, see s. 34.
As to onus of proof, see Re Carr, deceased, [1942] St. R. Qd. 182.
In Re Bernecker; Queensland Trustees Ltd. v. Public Curator, [1948] St. R. Qd.
161, the Full Court, construing a will made in California, held that the expression
"heirs-at-Iaw according to the laws of succession in force in . . . Queensland"
meant the persons entitled under the Statute of Distributions then in force.
As to apportionment of the costs of inquiry directed to ascertain persons
entitled according to this section, see Perpetual Trustee Co. Ltd. v. Thomas (1942),
59 S.R.(N.S.W.) 100.
For a case in which undisposed-of personalty went to the Crown as bona
vacantia, see In the Goods of O'Toole, [1902] Q.W.N. 50.
As to the effect of a residuary gift to the persons who would be entitled on
intestacy after the gift of particular interests to some of such persons, see
Queensland Trustees Ltd. v. Robertson, [1911] SI. R. Qd. 172.
As to the manner of distribution to the next of kin, see s. 32.
Compare 16 Halsbury's Laws of England, 3rd ed., pp. 392 et seq., 414 et seq.
31. Manner of distribution to issue. (1) Where an intestate is survived
by issue who are entitled to the whole or a part of the residuary estate
of the intestate(a) if only one person being a child or remoter issue of the
intestate survives the intestate--that person is entitled to
the whole, or that part, of the residuary estate, as the case
may be; or
(b) in any other case-the whole or that part of the residuary
estate shall be divided into a number of parts ascertained
in accordance with subsection (2) of this section and(i) each child (if any) of the intestate who survived the
intestate is entitled to one of those parts; and
SUCCESSION ACT OF 1867
ss.29-32
675
(ii) the issue of each child (if any) of the intestate who died
before the intestate leaving issue who survived the intestate
are entitled to one of those parts through all degrees,
according to their stocks, and, if there shall be more than
one issue, in equal shares.
(2) The number of parts for the purposes of paragraph (b) of
'iubsection (1) of this section is a number equal to the sum of(a) a number equal to the number of children (if any) of the
intestate who survived the intestate; and
(b) a number equal to the number of children (if any) of the
intestate who died before the intestate leaving a child or
remoter issue who survived the intestate.
Substituted by Act of 1968, No.8, s. 8.
As to manner of distribution to next of kin, see s. 32.
Child-See s. 29.
3IA. [Repealed.]
Inserted by Act of 1943, 7 Geo. 6 No. 28, s. 5; and repealed by Act of 1968,
No.8, s. 8.
3IB. [Repealed.]
Inserted by Act of 1943, 7 Geo. 6 No. 28, s. 6 (l); repealed by Act of 1968,
No.8, s. 8.
32. Manner of distribution to next of kin. ( 1 ) Where, by virtue of
this Act, the next of kin of an intestate are entitled to the residuary
estate of the intestate, the persons entitled to that residuary estate shall
be ascertained in accordance with the following paragraphs:(a) the brothers and sisters of the intestate who survived the
intestate, and the children of a brother or sister of the intestate
who died before the intestate, being children who survived the
intestate, are entitled to the residuary estate of the intestate;
(b) if the intestate is not survived by any persons entitled to the
residuary estate under the last preceding paragraph but is
survived by one or more of his grandparents, the grandparent
is entitled to the residuary estate of the intestate, or the
grandparents are entitled to the residuary estate in equal
shares, as the case requires; and
(c) if the intestate is not survived by any persons entitled to the
residuary estate under the last two preceding paragraphs,
the uncles and aunts of the intestate who survived the intestate
and the children of an uncle or aunt who died before the
intestate, being children who survived the intestate, are
entitled to the residuary estate of the intestate.
(2) The residuary estate of an intestate shall be divided amongst:(a) the brothers and sisters of the intestate, and the children of
those brothers or sisters who died before the intestate, in the
same manner as the residuary estate would have been divided
amongst those persons if the brothers and sisters had been
children of the intestate and the children of a brother or sister
who died before the intestate had been children of a child of
the intestate who died before the intestate;
676
SUCCESSION
Vol. 16
(b) the uncles and aunts of the intestate and the children of those
uncles or aunts who died before the intestate, in the same
manner as the residuary estate would have been divided
amongst those persons if the uncles and aunts had been
children of the intestate and the children of an uncle or
aunt who died before the intestate had been children of a
child of the intestate who died before the intestate:
Provided that the said residuary estate of the intestate
shall not be divided amongst the issue of a brother or sister
or of an uncle or aunt who died before the intestate more
remote than the children of any such brother or sister, uncle
or aunt.
Substituted by Act of 1968, No.8, s. 8.
As to who are the next of kin, see s. 30.
As to manner of distribution to issue, see s. 31.
33. Administration with the will annexed.
The Supreme Court on
and after the passing of "The Succession Acts Amendment Act of
1968" shall continue to grant administration with the will annexed
in every case where it was usual to make such grant before the passing
of that Act and in such case the will of the deceased person shall be
performed and observed in like manner as if probate thereof had been
granted to an executor.
Substituted by Act of 1968, No.8, s. 8.
Act referred to:
Succession Acts Amendment Act ()f 1968. p. 731. post.
34. Partial Intestacies. (1) The executor of the will of an intestate
shall hold, subject to his rights and powers for the purposes of administration, the residuary estate of the intestate on trust for the persons
entitled to it.
(2) An executor of the will of an intestate is not entitled to take
beneficially any part of the residuary estate of the intestate unless it
appears by the will that he is intended so to take that part.
(3) Where the spouse of an intestate acquires a beneficial interest
under the will of the intestate in the real or personal property of the
intestate, item 3 of Part I of the Schedule to this Act applies as if(a) in a case where the value of the beneficial interest so acquired
by the spouse under the will does not exceed twenty thousand
dollars-the references to the sum of twenty thousand dollars
were read as references to that sum less the value of that
beneficial interest; or
(b) in any other case-the references to the sum of twenty
thousand dollars or the whole of the residuary estate, whichever is the less, were omitted.
For the purposes of this subsection, a beneficial interest in real
or personal property acquired by virtue of the exercise, by will, of a
general power of appointment, shall be taken to be an interest acquired
under that will.
Substituted by Act of 1968. No.8, s. 8.
This section and s. 35 follow Executors Act, 1830, 11 Geo. 4 & 1 Will. 4,
c. 40, for which see 9 Halsbury's Statutes of England. 2nd ed., p. 668.
SUCCESSION ACT OF 1867
s5.32-35
677
Where there is an obvious intention in the will that the executor is not to
take beneficially, he is a trustee, and on failure of the cestui que lru~t the personal
estate vests in the Crown as bona vacalltia, Re Jones, Johnson v. Attorney-General,
[1925] 1 Ch. 340; [1925] All E.R. Rep. 704.
The question whether the executor takes beneficially is one of construction
of the will. The intention must appear on the face of the will. For a case
see Onslow v. Wallis (1849), 16 Sim. 483. The cases are in favour of their
taking beneficially if the gift is not to the executors as such, but by name,
Williams v. Arkle (1875), L.R. 7 H.L. 606; and a gift to the executor at his
discretion and his own disposal goes to him beneficially, Re Howell, [1915] 1 Ch.
241; [1914-15] All E.R. Rep. 211; but see Re Chapman, [1922J 2 Ch. 479, where
these words, coupled with a reference to charitable objects, did not give him the
beneficial interest. The cases are against the executors taking beneficially if prior
legacies have been given them or the gift is to them as joint tenants (Gibbs v. Rumsey
(1813), 2 Ves. & B. 294; [1803-13] All E.R. Rep. 701; Re Henshaw (1864), 34
L.J. Ch. 98), or if there is a direction that they are to retain their costs (Saltmarsh v.
Barrett (1861), 3 De G. F. & J. 279), and where there is no gift to them a direction
that they, their heirs, successors, etc., may apply and distribute the residue as to
them may appear just, Yeap. C. Neo v. Ong Cheng Neo (1875), L.R. 6 P.C. 381.
See also 16 Halsbury's Laws of England, 3rd ed., p. 408, and the 24 English and
Empire Digest, (Rp1.), p. 966.
As to what constitutes the residue in respect of which the executors are
trustees, see Byrne v. Comrs. oj Stamps, [1913] St. R. Qd. 147; [1913] Q.W.N. 32.
With respect to the effect of a will appointing an executor, but not disposing
of any property, see Re Skeats, [1936J 2 All E.R. 298; Re Andrews, [1936J
V.L.R. 253; 56 C.L.R. 1.
35. Public Curator may distribute small estates. (1) For the purposes
of this section, the term "illegitimate child" in relation to any person
means a child of that person, born out of lawful wedlock, and who is not
otherwise legitimised or legitimated or adopted in accordance with the law
of the State, Territory or country where the adoption takes place as in
force at the date of the adoption.
(2) Notwithstanding anything contained in this Act or in any other
Act or law or rule or practice or process of law, where a person being a
widow or widower or an unmarried person dies or has died without
leaving a will, and without leaving any lawful issue but leaving an
illegitimate child or children, then, if the residuary estate of such person
does not exceed two thousand dollars, the following provisions shall
apply, namely:(a) for the purpose of the distribution of the residuary estate an
illegitimate child shall be deemed the lawful child of the
deceased person;
(b) the Public Curator, upon being satisfied that the evidence
submitted to him on behalf of an illegitimate child is reasonably sufficient to establish that such child is the offspring of
the deceased person, shall have power, authority, and jurisdiction to distribute the whole of the residuary estate of the
deceased person to such child, or if the deceased person is
survived by more than one illegitimate child, to distribute the
whole of the residuary estate to such illegitimate children in
equal shares.
(3) Notwithstanding anything contained in this Act or in any other
Act or law or rule or practice or process of law, where a person, being an
illegitimate child and being a widow, widower or an unmarried person
SUCCESSION
Vol. 16
dies or has died without leaving a will and without leaving any issue
(whether born in or out of lawful wedlock) but leaving a mother, then the
following provisions shall apply, namely:(a) for the purpose of the distribution of the residuary estate
the mother shall be deemed the lawful mother of the deceased
person and to the same extent as if the deceased person were
her offspring born in lawful wedlock;
(b) the Public Curator, upon being satisfied that the evidence
submitted to him on behalf of the mother is reasonably
sufficient to establish that the deceased person was her offspring, shall have power, authority, and jurisdiction to
distribute the whole of the residuary estate of the deceased
person to the mother absolutely and exclusively.
(4) (i) No grant of administration in respect of any estate to which
this section applies shall be made by the Supreme Court to any person
other than the Public Curator;
(ii) The Public Curator shall have and may exercise all or any of
his powers, authorities and jurisdiction under "The Public Curator Acts,
1915 to 1957," "The Intestacy Act of 1877" (as amended by subsequent
Acts), or under any other Act or Law or Rule of Court in relation to
the allowance of claims or to the distribution of residuary estates in
respect of any estate to which this section applies which are, mutatis
mutandis, applied herein accordingly.
Substituted by Act of 1968, No.8, s. 8.
Acts referred to:
Public Curator Acts, 1915 to 1957, title TRUSTEES AND EXECUTORS.
Intestacy Act of 1877. p. 633, ante.
PART IV-WILLS, POWERS, USES, REMEDIES AGAINST REALTY, ETC.
Heading inserted by Act of 1968, No.8, s. 9.
WILLS
36. All property may be disposed of by will comprising freeholds
also such of them as cannot now be devised. Estates pur autre vie.
Contingent interests.
Rights of entry and property acquired after
execution of the will. 7 Wm. 4 & 1 Vic. c. 26 s. 3. It shall be lawful
for every person to devise bequeath or dispose of by his will executed
in manner hereinafter required all real estate and all personal estate
which he shall be entitled to either at law or in equity at the time of
his death and which if not so devised bequeathed or disposed of would
devolve upon the heir-at-Iaw of him or if he became entitled by descent
of his ancestor or upon his executor or administrator and also all estates
pur autre vie whether there shall or shall not be any special occupant
thereof and whether the same shall be freehold or of any other tenure
and whether the same shall be a corporeal or incorporeal hereditament
and also all contingent executory or other future interests in any real
or personal estate whether the testator mayor may not be ascertained
as the person or one of the persons in whom the same respectively may
become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will and also all rights of entry for conditions
broken and other rights of entry and also such of the same estates interests
SUCCESSION ACT OF 1867
SS.
35, 36
and rights respectively and other real and personal estate as the testator
may be entitled to at the time of his death Ilotwithstalluing that he
may become entitled to the same subsequently to the execution of his
will.
This section and the following sections follow Wills Act, 1837 (7 Will. 4 & 1
Vic. c. 26), adopted by the Act 3 Vic. No.5, as from 1 January, 1840. The Act
3 Vic. No.5 was repealed by the Repealing Act of 1867, 31 Vic. No. 39, s. 2.
Section 75 declares that this Act does not apply to any will made before 1 January,
1840.
The terms "will", "real estate" and "personal estate" are defined by s. 1. As
to "heir", see Intestacy Act of 1877, s. 27, p. 637, ante.
As to the property dealt with by a will, see also ss. 55, 56.
As to young persons, see s. 37.
As to married women, see s. 38 and Married Women (Restraint upon
Anticipation) Act of 1952, title MARRIAGE AND DIVORCE, Vol. 11, p. 411.
A person who is a lunatic or non compos mentis cannot during the continuance
of his unsoundness of mind make a will, but he can do so during a lucid interval,
White v. Driver (1809) I Phillim. 84. See also 33 English and Empire Digest,
(RpJ.), p. 603.
At common law aliens could not acquire and hold real estate, and
consequently could not dispose of it by will. See now Aliens Act of 1965,
Annual Volume, p. 197.
The power of testamentary disposition is now subject to the power of the
Supreme Court to make provision out of testators' estates for the maintenance
and support of a surviving spouse and children, for which see ss. 89 et seq., post.
"All real estate".-Land held under a possessory title may be devi~ed. See
Asher v. Whitlock (1865), L.R. 1 Q.B. 1; Calder v. Alexander (1900), 16 T.L.R.
294.
It appears that real estate may be devised by a testator dying without having
any person who would answer the description of his heir at law within the
meaning of this section. See Wentworth v. Humphrey (1886), 11 App. Cas. 619.
Testamentary Intention.-In order to operate as a will an instrument must
have been intended to be a will and to operate only on death, Re Lloyd, [19081
Q.W.N. 24; In the Will of Rowston, [1917] Q.W.N. 39; Re Greenwood, [1918]
S1. R. Qd. 58; [1918] Q.W.N. 19; Milnes v. Faden (1890), 15 P.D. 105. If made
animo testandi and duly executed it is not necessary that it should be made in
the form in which wills are usually made, In the Will of Johns/on, [1912] V.L.R.
55; Re Shepperd (1894), 5 Q.L.J. 116. The test of whether an instrument not in
form a testamentary instrument is in fact testamentary is whether there is proof,
either in the document itself or from extrinsic evidence, that it was the intention
of the maker to convey by the instrument the benefits which would be conveyed
if it were a will and that the instrument should be dependent on the death for its
vigour and effect, Re Shepperd, supra; Re Fenton, [1919] V.L.R. 740. The fact
that an instrument contains words showing that it is not intended to be revocable
indicates that it is not testamentary, but is not conclusive if a predominant
testamentary intention appears otherwise, Re Reid (1893), 5 Q.L.J. 120. See
further, as to testamentary intention, 48 English and Empire Digest, (Rp!.), p. 77;
notes to s. 43.
For a case of an attempted disposition without naming a donee, see Andrews
v. National Trustees, etc., Co. (1936), 56 C.L.R. 1.
For cases of dispositions not expressly describing the subject properly, see
Fell v. Fell (1922), 31 C.L.R. 268; Re Messenger's Estate, [1937] 1 All E.R. 355.
As to contracts to make a will in a particular manner, see Wells v. Matthews
(1914), 18 C.L.R. 440; Gray v. Perpetual Trustee Co. Ltd., [1928] A.C. 391;
[1928] All E.R. Rep. 758; 40 C.L.R. 558; 39 c.L.R. 473; Horton v. Jones (1934),
53 C.L.R. 475; Birmingham v. Renfrew (1937), 57 C.L.R. 666; 48 English and
Empire Digest, (Rp!.), p. 19.
As to what will constitute a devize of the legal estate in land to executors,
see Re Ferrett's Trusts (1894), 6 Q.L.J. 183.
As to a direction by a deceased person that his body shall be subjected to
anatomical examination after death, see Medical Act 1939-1969, s. 59, title
MEDICINE AND PHARMACY, Vo!. 11, p. 563. As to directions by a deceased
680
SUCCESSION
Vol. 16
person that his body shall be cremated see Cremation Acts, 1913 to 1961, s. 6,
title CREMATION, Vol. 4, p. 319.
'
For forms of wills, see Encyclopaedia of Forms and Precedents (2nd ed.),
Vol. 18, pp. 503 et seq .
.For an example of a mortgage debt passing under a purported devise of the
relatIve mortgaged land, see Re Smellie, [1948] Q.W.N. 7.
In Re Castiglione's Will Trusts, [1958] 1 All E.R. 480, the question arose as
(0 the validity of a legacy of shares in a private company to the company itself.
Danckwerts, J., upon an originating summons, following a statement of the law
in Jarman on Wills, 8th ed. Vol. 2, at p. 1055, held that although the shares could
not be transferred to the company itself, the company was entitled to direct that
the shares should be transferred to proper nominees for it,elf, namelv nominees
qualified to hold shares under the company's articles of association.
.
COMPETENCY OF TESTATORS
37. (1) Persons of the age of 18 years and married pcrsons may makc
a valid will.
A person(a) who is of or over the age of eighteen years;
(b) who, being under the age of eighteen years, is married or is
a member of the Defence Force of the Commonwealth,
shall have the same capacity to make a valid will as a person of or over
the age of twenty-one years heretofore had.
(2) Save as provided in subsection (I) of this section, no wi!!
made by any person under the age of eighteen years shall be valid.
(3) Transitional Provisions. The provisions of this section shall
not apply to and in relation to a will of a testator who died before the
passing of "The Succession Acts Amendment Act of 1968," but shall
apply to and in relation to a will of a testator who dies on or after the
passing of that Act whether the will be executed before, on or after the
passing of that Act, and section thirty-seven of this Act, as in force
immediately before the passing of "The Succession Acts Amendment Act
of 1968" shall continue to apply to and in relation to a will of a testator
who died before the passing of "The Succession Acts Amendment Act
of 1968," as if that lastmentioned Act had not come into operation.
Substituted by Act of 1968, No.8, s. 10.
Act referred to:
Succession Acts Amendment Act of 1968, p. 631, post.
The repealed s. 37 provided that wills by persons under the age of twenty-one
years were invalid.
The Succession Acts Amendment Act of 1968 was passed on 16 April 1968.
As to testamentary capacity of infants who are soldiers on actual military
service, see s. 43 and notes thereto.
As to wills expressed to be in contemplation of marriage, see Law Reform
(Wills) Act of 1962, p. 641, allle.
See also Wills (Soldiers, Sailors, and Members of the Air Force) Act of 1940,
p. 733, post. In particular, see s. 4 thereof.
38. Nor of a femme covert except such as might now be made. 7
Wm. 4 & 1 Vic. c. 26 s. 8. Provided also that no will made by any
married woman shall be valid except such a will as might have heen
made by a married woman before the passing of this Act.
In early times a married woman was incapable of making a will. Her will
of lands was declared void by statute (34 & 35 Hen. S, c. 5).
Her will of
personalty was equally invalid, not merely because marriage was a gift of her
personalty to her husband, but because in law a wife had no separate existence
from her husband and no separate contracting or disposing powers. In course
SUCCESSION ACT OF 1867
ss.36-39
681
of time, however, the rule was modified and a married woman acquired restricted
testamentary powers, for which see Halsbury's Laws of England (1st ed.), Vol. 28,
title Wills, p. 535.
The Married Women's Property Acts, 1890 to 1952, s. 3 (1) empowered
a married woman to dispose of her separate property by will as if she were
unmarried.
This section did not give validity to a will made prior to its
enactment by a married woman who had no property which she could dispose of
by will, Re Morley's Will (1897), 8 Q.L.J. (N.C.) 3. See now Married Women
(Restraint upon Anticipation) Act of 1952, title MARRIAGE AND DIVORCE, Vol.
11, p. 411.
As to probate of the will of a married woman or the will of a widow made
during coverture, see R.S.C. (1900), Order 71, Rule 24. title SUPREME COURT
AND PRACTICE.
EXECUTION AND ATTESTATION OF WILLS AND POWERS
39. Every will to be in writing and signed by the testator in the presence
of two witnesses. 7 Wm. 4 & 1 Vic. c. 26 s. 9. No will shall be
valid unless it shall be in writing and executed in manner hereinafter
mentioned and required (that is to say) it shall be signed at the foot
or end thereof by the testator or by some other person in his presence
and by his direction and such signature shall be made or acknowledged
by the testator in the presence of two or more witnesses present at the
same time and such witnesses shall attest and shall subscribe the will
in the presence of the testator but no form of attestation shall be
necessary.
"Will" is defined by s. 1.
As to wills of soldiers and sailors, see ss. 43, 44 and notes thereto.
As to the wills of assisted Aborigines and assisted Islanders. see Aborigines' and
Torres Strait Islanders' Affairs Acts, 1965 to 1967, s. 30, 1965 Annual Volume,
p. 305.
The validity of a will so far as it disposes of movable property in this State
falls to be determined according to the law of the testator's domicile, but so far
as it disposes of immovable property in this State the validity must be determined
by the law of this State, Lewis v. Balshaw (1935), 54 C.L.R. 188.
As to jurisdiction to construe the terms of a testamentary document where
questions arise which of two or more such documents should be admitted to probate
and to whom a grant of administration with the will should be made, see Re Fawcett,
[1941] P. 85.
For an example of admission to probate of both copies of a will typed in
duplicate, see Re McNamara, [1944] V.L.R. 17.
The rule that a will is made at the date when it is confirmed by a codicil is
not applicable when it would have the effect of defeating the testator's intention.
For an example of the exclusion of that rule, see Re Heath's Will Trusts; Hamilton
v. Lloyd's Bank Ltd., [1949] 1 Ch. 170; [1949] 1 All E.R. 199.
On the inadmissibility of evidence of identity dehors the instrument, see Re
Robertson, [1942] V.L.R. 137 (extrinsic evidence of testator's intention as to
appointment of executor held inadmissible where will itself was not ambiguous).
Similarly, in Re Evans; Evans v. Allot!, [1950] V.L.R. 60; 57 A.L.R. 203. where
the will named as sole beneficiaries two persons, of one of whom the description
was defective but not equivocal, extrinsic evidence was held inadmissible, with
the result that the intended gift in question was void for uncertainty and there
was an intestacy as to one half of the testatrix's estate. Contrast therewith
Re Cullen, [1946] V.L.R. 47. and Re Robertson; Equity Trustees Executors &
Agency Co. Ltd. v. Ramage, [1946] V.L.R. 162 (in each of which cases a description
applicable to two persons constituted an equivocation and parol evidence of the
testator's intention was therefore held admissible).
For an example of the admission to probate of an incomplete will, which
contained neither an appointment of an executor nor any reference to the
property of the testatrix. see Re Stevens; Pateman v. James, [1952] Ch. 323; [1952]
I All E.R. 674, where Wynn-Parry, J., held that the testatrix intended to deal with
the whole of her property by leaving it to the beneficiaries named therein.
682
SUCCESSION
Vol. 16
In Re Dyne; Stratford v. O'Neill, [1949] Q.W.N. 9, Philp, J., pronounced for
the force and validity of a lost will established by oral evidence. The standard
of proof required for the reconstruction of a lost will by parol evidence is no
different from the standard of proof in other cases, namely the establishment of
reasonable probability as to the terms of the document, Re Wippermann; Wissler v.
Wippermann, [1953] 1 All E.R. 764.
Where the trusts of a will provided that certain "land be not sold until such
time or times as the law directs" the court held that the testator's intention was
that the land should be sold at the expiration of the period fixed by the rule against
perpetuities, Re Craig, [1955] V.L.R. 196; [1955] A.L.R. 521.
"In writing".-A testator cannot dispose of his property by instructions not
executed as a will but referred to in his will as instructions to be thereafter
given, Re Walsh (1911), 30 N.Z.L.R. 1166. Compare Blackwell v. Blackwell
(1929), 145 T.L.R. 208; [1929] All E.R. Rep. 71. As to trusts accepted by a donee
under the will but not disclosed in the will, see Halsbury's Laws of England
Ost ed.), Vol. 28, title Wills, p. 648. As to incorporation of unexecuted documents
by reference in a will, see infra.
A will may be typewritten. See Acts Interpretation Acts, 1954 to 1962, s. 32
(a), title ACTS OF PARLIAMENT, Vol. 1, p. 93: Dougharfy v. Clurk, [1902]
Q.w.N 69.
For a case in which a form, prepared by a trustee company, and headed
"Instructions for Preparation of Will", duly signed and attested, was held to be a
will appointing the company executor, see Re Cowin, deceased, [1968J Q.W.N. 3.
"Signed".-A mark made by the testatrix in the attempt to execute a will and
which appeared to be part of the first letter of her Christian name was held to be a
signature, Re Male, [1934] V.L.R. 318. The testator may sign by placing a mark
instead of actually writing his name, In the Goods of Bryce (839), 2 Curt. 325:
and signature by mark is sufficient whether the testator is able to write or not, 111 the
Goods of Glover (1847), 5 Notes of Cases 553, per Cur. The stamped name of
the testator is sufficient, whether the stamp be applied by the testator or by some
other person by his direction and in his presence, Jenkins v. Gaisford (1863).
3 Sw. & Tr. 93.
A signature which appears to be precautionary only and not operative is not
sufficient. See In the Will of Plain (927), 27 S.R.(N.S.W.) 241, at p. 244.
For cases where the testator had indorsed the will on the back but had not
otherwise signed it, see Re Middlebrook (1928), 29 S.R.(N.S.W.) 217; Re
McDonald (1893), 15 A.L.T. 82; Re Dytrych, [1928] V.L.R. 144.
For a case of forgery of a testator's signature, see Healey v. Healey (1912), 14
C.L.R. 271.
As to when it can be inferred that a document contained the writing constituting
the will when it was executed, where the paper was rolled up so that the attesting
witnesses could not see anything, see In the Will of Betts, [1914] V.L.R. 302.
For steps which should be taken where a will is executed by a blind or
illiterate person, see R.S.C. (1900), Order 71, rule 23, title SUPREME COURT
AND PRACTICE.
"At the foot or end thereof".-The provisions of this section with respect to
the placing of the signature must be read with s. 40.
Where a will is written on a single sheet of paper, whether or not the paper
is folded, the foot or end of the will is determined by the order in which the
script is to be read, Cinnamon v. Public Trustee (1934),51 C.L.R. 403, at p. 41l.
And see In the Will of Hall, [1910] V.L.R. 14; Re Estate of Long, [1936] 1 All
E.R. 435.
A document contained in several attached pages may be such that the unsigned
pages are incorporated by reference in the signed page. See Cinnamon v. Public
Trustee, supra; Re Heitsch, [1933] V.L.R. 338. But see Lay v. Gough (1924),
20 Tas. L.R. 59; In the Will of Donovan (1915), 32 W.N.(N.S.W.) 100; In the
Will of Buli, [1905] V.L.R. 38; In the Will of Wilkinson, [1915] V.L.R. 77; In the
Will of Palmer (1905), 11 A.L.R. 186. Compare In the Will of Hughl\" (1869).
1 A.J.R. 2, where the signature was above the last clause.
A document propounded for probate as a will was typed on three pages of a
sheet of paper folded into four pages. The dispositive portions of the will began
on the first page and continued into the second and third pages. The disposition
of the residuary estate was unfinished on the first page and continued into the
SUCCESSION ACT OF 1867
s.39
683
second page. The second page ended with an unfinished sentence which was
continued on the third page. At the bottom of each of the first and second
pages appeared the words "Testator" and "Witnesses". The testimonium and
attestation clauses appeared at the bottom of the third page, but were unsigned.
The signature of the testatrix appeared beside the word "Testatrix" on the first
page and those of the witnesses appeared above the word "Witnesses" on that page,
but there were no signatures on the second or third pages. Held: that the whole
document should be admitted to probate. See In the Will of Smith, [1965] Qd.
R. 177.
Where the writing was continued right across the folded paper on to the
opposite page where it ended at a point above the signature which was on the
first page, the signature was good, In the Will of Ryan (1927), 27 S.R.(N.S.W.)
241. Where a sentence in a will was not completed on the same level as the
testator's signature but straggled below it though completed before signature, it
was held that the signature authenticated that part of the sentence which was
below it, In the Will of Mitchell (1888), 14 V.L.R. 699.
A will was held to be properly executed where the signature was written
perpendicularly in the margin towards the top of the page. See In the Will of
Everingham (1900), 21 L.R.(N.S.W.) (B. & P.) 15. But a signature by a mark
made against the testator's name in the opening sentence was held insufficient,
In the Estate of Roffe (1920), 20 S.R.(N.S.W.) 632.
For a case in which the first page only of a will was signed see Re Allee,
deceased; Equity Trustees Executors & Agency Co. Ltd. v. James, [1960] V.R. 481.
Where by some folding or manipUlation of the paper the testator's signature
can be regarded as placed at the end of the will and such folding or manipulation
took place at the time of the signature, there is a sufficient signature, In the Will
of Moroney (1928), 28 S.R.(N.S.W.) 553; Re McDonald (1893), 15 A.L.T. 82.
Thus where execution and attestation appeared on the second page of a double
sheet and the dispositions on the fourth page, it was held the fourth page should
be treated as the first and the second page as the third so that the will was
executed, In the Will of Cohen (1929), 29 S.R.(N.S.W.) 196.
Where the appointment of executors appears below the signatures, and the
disposing parts of the will above the signatures, the latter may be regarded as a
complete will and therefore as properly executed, Re Belfrage, [1932] V.L.R. 357.
In the Will of Hempel (1959), 77 W.N.(N.S.W.) 1, was a case where a
document propounded as a will consisted of a single page folded to form four
pages. On the first two pages appeared a printed form of will filled in at the
direction of the testator and disposing of his property to the appellant. The
testator signed the document on the third page after printed dispositions to a wife.
The testator had no wife. It was held that the testator had put his signature in
the wrong place by mistake with no intention of giving testamentary effect to the
printed words immediately above it which could be rejected and the balance of the
document admitted to probate.
Where a signature appears at the end of a portion of an intended will which
is obviously only a fragment, probate cannot be granted of such portion, Lay v.
Gough (1924), 20 Tas. L.R. 59; Re Sheehan (1888), 10 A.L.T. 208; In the Will
of Wyatt (1895), 21 V.L.R. 571; In the Will of Moroney (1928), 28
S.R.(N.S.W.) 553.
But where the court is satisfied that the portion of the
document appearing below the signature was written after the signature, the
portion above such signature will be admitted as a duly executed will, In the
Wi/I of Moroney, supra.
Incorporation of unexecuted documents.-An unexecuted writing will be part
of a will where incorporated by clear reference in an executed will so that it
can be identified, Re Pepperill, [1927] St. R. Qd. 154; [1927] Q.W.N. 35; Hitchin{?s
v. Wood (1841), 2 Moo. p.c.e. 355; Croker v. Hertford (1844), 4 Moo. p.e.e.
339. Parol evidence is admissible for the purpose of identification, Re Pepperill,
supra. An intention to incorporate the unexecuted document must appear, Re
Williams' Will (1897), 7 Q.L.J. 151; In the Will of Duncan, [1916] V.L.R. 1.
Words in a codicil confirming the will are not sufficient to incorporate the will
in the codicil, Russell v. Matchett, [1903] St. R. Qd. 98. But see Re Weatherlake,
[1933] Q.W.N. 46. As to identification of an envelope with the will contained in
it, see In the Will of Grace, [1931] Q.W.N. 3.
Separate unattached documents, consisting of a dated but unattested dispositive
paper writing in testator's handwriting found folded in a form of will attested,
684
SUCCESSION
Vol. 16
signed in blank, undated but executed some weeks after the other document. were
admitted to probate in In the Will of Craney, [1945] Q.W.N. 23.
For an example of an informal holograph document which formed the basis
of an order for a grant of administration cum testamento annexo, see In the Lands
and Goods of Mina Gray, [1950] Q.W.N. 31.
See also RS.C. (1900), Order 71, rules 20-22, title SUPREME COURT AND
PRACTICE.
Acknowledgment.-Acknowledgment by gestures in the joint presence of the
witnesses is sufficient. See In the Goods of Davies (1850), 2 Rob. Ecc!. 337.
To constitute a sufficient acknowledgment the witnesses must at the time of
acknowledgment see, or have the opportunity of seeing, the signature, and it
should be explained to them that the document they are asked to sign is a
testamentary instrument. See Pearson v. Pearson (1871), L.R. 2 P. & D. 451:
Re Skelton, [1930] V.L.R. 323; Re Will tel', [1926] V.L.R. 300.
In Re Power, [1945] Q.W.N. 31, following Blake v. Knight (1843), 3 Curt.
547; 163 E.R. 821, where the testatrix produced to two persons a paper writing
which she informed them was her will and asked each of them in turn to sign it
(which both did, though neither remembered that her signature was on it before
they did so), it was held that such production and request constituted a sufficient
acknowledgment within the meaning of this section. So also in Re Isherwood,
[1946] V.L.R 312, where the material facts were similar. Contrast Re Haskard,
[1947] Q.W.N. 6, where Matthews, J., held that production and request to witness
the will did not constitute sufficient acknowledgment, the witnesses having no
opportunity of seeing whether the signature of the testator was on it at the time.
Where the signature of the deceased was attested by two witnesses who were
not actually present together, though each was in the vicinity, when they attested it,
it was held that, since the deceased had not acknowledged his signature in the
presence of both witnesses at the same time, the will had not been duly execukd
and was accordingly invalid, In the Will of Morgan, [1950] V.L.R. 335; 57 A.L.R.
729. Similarly in In the Estate of Davies; Russell v. Delaney, [1951] 1 All E.R 920.
a will was held invalid because the testatrix, who had put her mark on the document
in the presence of one of the witnesses, did not acknowledge her mark to the
other witness who entered the room while the first witness was subscribing her
name thereto.
Where a witness before whom a will has already been acknowledged by the
testator informs the other witness in the presence and hearing of the testator
that the signature is the testator's signature, this constitutes an acknowledgment
by the testator in the presence of both witnesses, McKenzie v. McKenzie (1907),
27 N.Z.L.R. 461. And see also III the Goods of Crooke, [1903] Q.W.N. 63.
Attestation.-As to competence of witnesses, see ss. 46-49.
A will must be signed by the testator before the attesting witnesses affix
their signatures, III the Goods of Kelly (1866), 3 W.W. & a'B. (1. E. & M.)
80.
See also III the Wilt of Burr, [1912] V.L.R. 246.
An acknowledgment
must be made in the presence of the two witnes'jes befure either witness signs.
ll'llllley v. rahy (1892), 4 Q.LJ. 197. It is no: sufficient if there is merely an
acknowledgment before one witness who then signs followed by a reacknow1edgment before the other witness who then signs, McKel1zie v. McKen7.ie (1907),
27 N.Z.L.R. 461; Re Duffy (1909), 12 N.Z.G.L.R. 260.
In Re Amos; Perkins v. McLeod and Mackay, [1954] 2 D.L.R. 574, where
the evidence was that the persons who signed the will as attesting witnesses did
not see the signature of the testator, who had deliberately folded the will so that
they could not see any part of it, the High Court of Ontario held that the evidence
indicated due execution and therefore the presumption omnia rite ese acta applied.
The initials of attesting witnesses are sufficient signatures when affixed for
the purposes of attestation, In the Will of Dyer (1869), 6 W.W. & a'B. (I. E. &
M.) 43. An attesting witness may sign by a mark. See In the Goods of Ashmore
(1843),3 Curt. 756; On Lin Muk San!; v. Goo Tin (1911),28 W.N.(N.S.W.) 102.
The hand of an attesting witness may be guided by the hand of the other witness
or of a third person, Harrison v. Elvin (1842), 3 Q.B. 117. A witness cannot sign
in the name of another person, In the G.oods of Leverill[:ton (1886), II P.D. 80.
One attesting witness cannot sign for another, III the Goods of White (1843),
SUCCESSION ACT OF 1867
s. 39
685
2 Notes of Cases 401; nor can a third person sign for a witness. In the Goods oj
Cope (1850), 2 Rob. Eccl. 335. Passing a dry pen over a written signature is not
sufficient, Playne v. Scriven (1849), 1 Rob. Eccl. 772.
The word "attest" in this section is wide enough to include the word
",ubscribe". Where the testatrix executed a will of which the form of attestation
was "signed by the testatrix in our presence and attested by us in the presence of
her and of each other" it was held that this clause was sufficient to comply with
the English section of which this section is a transcript, Re Selby-Bigge, [1950]
I All E.R. 1009.
An acknowledgment of his signature by an attesting witness is not the equivalent
of :,ignature by him, Hallnan v. Whitworth (1884), 5 L.R.(N.S.W.) (P. & D.) 11.
It is immaterial where the names of witnesses appear so long as they are
found to attest the operative signature. See III the Will of Plaill (1927), 27
S.R.(N.S.W.) 241, at p. 245. Thus the signature of witnesses on other pages of the
will may be a sufficient attestation of testatm's signature appearing at the end
of the wil!, Williams v. Pain (1889),3 Q.LJ. 175; Re McPhee, [1924] V.L.R. 394;
Rc Grebert, [1925] V.L.R. 662. But see In /h~ Vlil/ of Hodgsoll (1922),
39 W.N.(N.S.W.) 210.
Where tht! deceased had signed his name at the foot of a sheet of paper on
which were set out the dispositive clauses purporting to devise all his pl'Operty to
his daughter and three sons, and two persons, in whose presence he had signed
it and whom he informed that he was making his last will and testament, subscribed
an attestation clause which was set out upon a separate sheet of paper, the Supreme
COlilt of Victoria, uplln application for probate of both documents as together
constituting the last will of the deceased, held, after considering cel1ain authorities,
that, as the signatures of the witnesses did not appear on the sheet of paper containing
the dispositive clauses and as the sheets were not attached in any way, probate should
be refused, III the Estate of John Ryall, [1955] V.L.R. 316; [1955] A.L.R. 814.
With that case contrast III the Will oj Johl/ Verges, [1956] V.L.R. 94; [1956] A.L.R.
458, where the same judge held that probate should be granted of a will written on
three unattached sheets of paper. of which the first and second contained the
dispositive clauses and the third contained the date of the will and the attestation
clam,e, all three sheets bearing the signatures of the testator and the two witnesses,
which were first affixed opposite the attestation clause in that order.
In the Will of Sejer/h, [1956] V.L.R. 3f\2, is another case that presented difficulty.
There the document propounded as a will was a printed form with additions in
manuscript on a single sheet of paper which, folded once, made four pages. The
attestation clause, on the first page, bore the name of the testator, in the space
provided, in the kstator's own handwriting, and beneath it were the signatures
of the attesting witnesses. The three signatures appeared also on the third page
at the end of what purported to he a codicil to the will, which bore the same date.
The court, in a reserved jUdgment, found that when the witnesses signed the
attestati,hl clause on page one they had not witnessed either the writing of the
testator's name therein or his signature on page th ree, but that the testator was
aware that a sig:1ature by him was necessary to render the document effective as a
will and that he intended his name in the attest:ltion clause to be his signature and
believed that it was. In these circumstance, his Honour held that page one and the
contemporaneous handwriting on page three should be admitted to probate.
Where a tcst:ltor signed his will in the presence of one witness and some
weeks later called on another person with the first witness and they acknowledged
their joint signatures and asked the other person to sign as a witness and he
did s(} in the presence of the testator and the first attesting witness, it was held
that the execution was ineffectual, Re Lacy (1869), 6 W. W. & a'B. (I.E. &
M.) 44. That case was distinguished in the case of III /ile Will of Gray (1888),
14 V.L.R. 207, where a person came into the room after the testator had signed
his will in the presence of one attesting witness, and the testator acknowledged
his will to both and asked them to witness it, whereupon both signed.
In f\e Defining, [1958] 2 All E.R. 1, probate was sought of a holograph will
of a lady consisting of a small single sheet of writing paper, on one side of which
appeared a single dispositive clause followed by the deceased's signature. On the
reverse side, upside down, were the names of two unidentified females written in
different hands, but there was no attestation clause nor any indication why those
names were there. Sadl'i, J., following III the Goods of Pn'crell, [1902] P. 205,
applied the maxim Of/mill praeSllfll!lIzter rita esse tlcta and admitted the document
to proh:,tc.
686
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Vol. 16
An attestation clause is not essential to the validity of a will, Williams v. Pain
(1889), 3 Q.L.1. 175; Re Gager, [1907] Q.W.N. 55. As to the value of such a clause
as evidence of due execution, see infra.
"In the presence of the testator".-Signature by the witnesses in a room
adjoining that of the testator but where he cannot see them, even though he knows
that they are signing there, is not signature in his presence, Upton v. Public Trustee
(1915), 34 N .Z.L.R. 614, nor is such signature in an adjoining room signature in
his presence where he could have seen it taking place but did not do so, In the Wi/I
of Callow, [1918] V.L.R. 406.
Semble it is not necessary that the attesting witnesses should sign the will in
the presence of each other. See In the Will of Morgan, [1950] V.L.R. 335; 57
A.L.R. 729. Casement v. Fulton (1843), 5 Moo. P.c. 130, in the Privy Council
appears to decide that they must do so, but in Faulds v. Jackso/1 (1843), 6 N. of C
Supp. 1., the contrary is said to have been decided by the Privy Council a few
weeks prior to the decision in Casement v. Fulton. Faulds v. Jackson was followed
in Re Foley (1879), 5 V.L.R. (I.P. & M.) 95, Mackenzie v. Mackenzie (1907),
27 N.Z.L.R. 461, hz the Goods of Webh (1855), 1 Jur. N.S. 1096, Sul/ivan v.
Sullivan (1879),3 L.R. Ir. 299, and In the Goods of Smythe (1915),49 I.L.T. 223.
The judgment in Faulds v. Jackson, however, does not advert to the point and the
case was capable of decision on other grounds. Casement v. Fulton was followed.
unwillingly, in Slack v. Busteed (1856), 6 Ir. Ch. R. 1. In this uncertain state of
the law, care should be taken that witnesses sign in each others presence and
immediately after signature by the testator.
Proof of due execution.-There is a presumption that a will which bears an
attestation clause stating the due formalities of execution and is apparently signed
in a regular manner by the testator and witnesses, was duly executed, Gair V. Bowers
(1909), 9 C.L.R. 510, at pp. 525, 530. Probate may be granted where there is a
sufficient attestation clause even where one of the attesting witnesses swears that
it was not there when he signed, In the Will of Monteith (1896), 22 V.L.R. 60.
A will signed by two witneSc~es and bearing an attestation clause "signed by the
testatrix in our presence and by us in her presence" was held to be sufficiently
attested, Re Pinnock's Will, B.C.R., 13 July, 1892. See also, as to proof of execution
by the attestation clause, R.S.C. (1900), Order 71, rule 13. title SUPREME COURT
AND PRACTICE.
There is also a presumption that a will was duly executed where it appears
on its face to have been duly executed even though it contains no attestation clause.
See Re Stewart. [1904] Q.W.N. 41; Re Gager, [1907] Q.W.N. 55: 16 Halsbury's
Laws of England. 3rd ed., p. 205: Re Ferreira, [1927] V.L.R. 90; Re Hutchins (1893).
14 A.L.T. 223; Re Buckley (1899), 24 V.L.R. 923; Re Ross (1900), 6 A.L.R.
(CN.) 89.
Where the court is unable to obtain trustworthy assistance from conflicting
and imperfect evidence of the attesting witnesses, on the question of compliance
with the statutory formalities, the grammar and composition being unexceptionable
and the attestation regular on the face of it, the court is entitled to weigh the
presumption of due execution in the balance with the rest of the documentary and
oral evidence available. So held by Sholl, J., in Re McMah:?ll, [1955] V.L.R. 173.
distinguishing In the Will of Foley, [1879] 5 V.L.R. (J.P. & M.) 95.
Statements made by a person after the alleged execution of a will by him
are not admissible as evidence of execution, Gail' v. Bowers, supra.
As to evidence of persons other than the attesting witnesses as to due execution,
see Re Gager, [1907] Q.W.N. 55; 16 Halsbury's Laws of England, 3rd ed., p. 205.
The evidence of the attesting witnesses is not necessarily conclusive; it is
competent for the propounders of a will to adduce evidence in rebuttal. See
Vere-Wardale v. Johnson, [1949] P. 398; 65 T.L.R. 493; [1949] 2 All E.R. 250.
Generally on the question of when a presumption of the due execution of a will
arises, and on the nature of the presumption itself, see the judgment in R e Bladen.
[1952] V.L.R. 82; [1952] A.L.R. 326.
As to proof of execution and attestation on application for probate, see
R.S.C. (1900), Order 71, rules 13-15, title SUPREME COURT AND PRACTICE.
As to the principles on which the Court will endeavour to save a will from
defeat by formal requirements, see In the Will of Doherty (1907), 24 W.N.(N.S.W.)
150.
For English cases with respect to execution and attestation. 'ice 48 English
and Empire Digest, (Rpl.), pp. 101 ct seq.
SUCCESSION ACT OF 1867
SS.
39, 40
687
40. When signature to a will shall be deemed valid. 15 & 16 Vic.
c. 24. Every such will shall so far only as regards the position of the
signature of the testator or of the person signing for him as aforesaid be
deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the will that it shall be
apparent on the face of the will that the testator intended to give effect
by such his signature to the writing signed as his will
and no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will
or by the circumstance that a blank space shall intervene between the
concluding word of the will and the signature or by the circumstance
that the signature shall be placed among the words of the testimonium
clause or of the clause of attestation or shall follow or be after or under
the clause of attestation either with or without a blank space intervening
or shall follow or be after or under or beside the names or one of the
names of the subscribing witnesses or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers
containing the will whereon no clause or paragraph or disposing part of
the will shall be written above the signature or by the circumstance that
there shall appear to be sufficient space on or at the bottom of the
preceding side or page or other portion of the same paper on which the
will is written to contain the signature
and the enumeration of the above circumstances shall not restrict
the generality of the above enactment but no signature under this Act
shall be operative to give effect to any disposition or direction which is
underneath or which follows it nor shall it give effect to any disposition
or direction inserted after the signature shall be made.
Section 39 requires a will to be signed "at the foot or end thereof."
A clam,e beneath the signatures of the testator and witnesses is not part
of the will, Re Stawell, [1904] St. R. Qd. 4; [1904] Q.W.N. 3. But a disposition
underneath or following the signature may be part of the will where sufficiently
incorporated into the context of the will by reference in that part which is above
the signature, Cinnamon v. Public Trustee (1934), 51 C.L.R. 403; Re Heitsch,
[1933] V.L.R. 338; In the Will of Donovan (1915), 32 W.N.(N.S.W.) 100.
This section is sufficiently complied with where the testator and witnesses
sign across the will at right angles to the other writing, In the Will of Pople
(1874),5 A.J.R. 80; In the Will oj Mathew, [1906] V.L.R. 531.
Administration was granted where the signature of the testator was below
those of the attesting witnesses and there was a regular attestation clause, In
the Will of Edwards (1910),27 W.N.(N.S.W.) 185.
A signature appearing upside down on the opposite side of the paper, but the
position of which was explained by evidence, was held to be a good execution,
In the Goods of Campbell (1863),2 W. & W. (I.E. & M.) 119.
Signature by the testator of his name where it occurs in the testimonium
clause with intention to give effect to the will thereby is sufficient, DogRett v.
Lellehan, [1926] St. R. Qd. 84; [1926] Q.W.N. 16.
See also In the Will oj
Co/eman (1878). 4 V.L.R. (I.P. & M.) 22; Re Meikle (1899). 25 V.L.R. 309;
In the Will oj Gordon (1884), 10 V.L.R. (LP. &M.) 25.
III the Will oj GallaRher, [1945] Q.W.N. 41, the court admitted to probate
a will on a printed form, where the testator signed on the front or caption page,
and the attesting witnesses at the end of the dispositive part of the document,
which was on another page thereof. See also In the Will of Brown, [1948] Q.W.N.
-I and [1948] Q.W.N. 25.
For an example of a document propounded as a wilJ but held not admissible
to probate, see Re Harris; Murray v. Everard, [1952] 2 All E.R. 409 (dispositive
provisions following the signature of the deceased), where \Villmer, J., reviewed
the authorities.
688
SUCCESSION
Vol. 16
For a case in which the court admitted to probate a holograph will attested but
not signed, enclosed in an envelope signed and sealed by the testatrix but not
attested, accepting the signature on the envelope as the signature to the will, see
In the Estate of Mann (1942), 58 T.L.R. 400; [1942] 2 All E.R. 193. See also
In the Will of Robinson, [1944] Q.W.N. 50 (will signed on back of printed form
with witnesses' names subscribed at foot or end of will, admitted to probate).
In a probate action, In the Goods of Chalcraft; Chalcraft v. Giles and Rance,
[1948] P. 222; [1948] 1 All E.R. 700, Willmer, 1., pronounced for the validity of a
document that bore part of the signature of the testatrix, Ellen Chalcraft,
which she had affixed as she lay dying of cancer, namely "E. Chal," at which
stage it ended abruptly.
See also notes to s. 39.
As to obliterations, interlineations and alterations made after execution, see s. 53.
41. Act to extend to certain wills already made. The provisions of
the section last preceding shall extend and be applied to every will
already made where administration or probate has not already been
granted or ordered in consequence of the defective execution of such
will or where the property being other than personalty has not been
possessed or enjoyed by some person claiming to be entitled thereto
in consequence of the defective execution of such will or the right
thereto shall not have been decided to be in some other person than the
person claiming under the will in consequence of the defective execution
of such will.
42. Appointments by will to be executed like other wills, etc. 7 Wm.
4 & 1 Vic. c. 26 s. 10. No appointment made by will in exercise of
any power shall be valid unless the same be executed in manner hereinbefore required and every will executed in manner hereinbefore required
shall so far as respects the execution and attestation thereof be a valid
execution of a power of appointment by will notwithstanding it shall
have been expressly required that a will made in exercise of such power
should be executed with some additional or other form of execution or
solemnity.
As to execution of powers by deed, see s. 66.
As to execution of general powers by general gifts, see s. 59.
See also 37 English and Empire Digest. (Rp!.), p. 274.
Where an appointment apparently regular is challenged as being a fraud on
the power, evidence is admissible to show the appointee's state of mind at the time
when the power was exercised. See, for example, Re Rigby; DowninR v. Rigby,
[1950] V.L.R. 346. See also Re Dick; Knight v. Dick, [1953] Ch. 343; [1953J I All
E.R. 559, where the exercise of the power was held to be fraudulent and void
on the ground that in making the aplXlintment there was a deliberate intention to
benefit persons who were not objects of the power (C.A.).
See Re Thirlwc/I's Will Trusts; Evalls v. Thirlwell, [1957J 3 All E.R. 465.
For an example of a will not construed according to the domicil of the
testator, see Re McMorran; Mercantile Bank of India Ltd. v. Perkins, [1958] 1 All
E.R. 186, where the testator, who at all material times was resident and domiciled
in England, wrote it with reference to the law of Scotland. In the course of an
interesting reserved Judgment the court held that a special lXlwer of appointment
given by the English will was exercised by the son, who was resident and domiciled
in Scotland, and made a Scottish disposition framed with reference to Scottish law.
This instrument was, on the son's death, registered according to Scottish law and
subsequently fe-sealed in England.
43. Soldiers' and mariners' wills excepted. 7 Wm. 4 & 1 Vic. c. 26
s. 11. Provided always that any soldier being in actual military service
or any mariner or seaman being at sea may dispose of his personal estate
as he might have done before the making of this Act.
See, for declaratory provisions in aid of this section, Wills (Soldiers, Sailors
and Members of the Air Force) Act of 1940, p. 733, post.
SUCCESSION ACT OF 1'1'.67
ss.40-43
689
Personal property might at common law hav.: been disposed of by a will
made by word of mouth, provided it was proved by at least two witnesses. Such
a will was known as a nuncupative will. Alternatively it might have been disposed
of by writing to which there were two witnesses or admittedly written or signed by
the testator. Important restrictions on the form of a will by which personalty
might be disposed of were created by the Statute of Frauds, 1677 (29 Car. 2, c. 3),
which, however, by s. 22, provided that notwithstanding anything in that Act any
soldier being in actual military service or any mariner or seaman being at sea might
dispose of his personal estate as he might have done before the passing of that Act.
The present section continues this freedom from the requirements as to execution
imposed by this Act on wills of other persons. A soldier's will must still be made
either in the manner required for a civilian's will under this Act or as a will of
personalty might have been made before the Statute of Frauds. See In the Will of
Thompson (1910), 10 S.R.(N.S.W.) 406.
The words "in actual military service" mean "in active military service." See
Re Whlgham; Andrews v. WhIgham, [1949] P. 187; 64 T.L.R. 98, 594; [1948)
2 All E.R. 908, where the Court of Appeal examined the authorities and, reversing
the judgment of Pilcher, J., decided that an unattested will should be admitted to
probate. So also in Re Lowe, [1949] V.L.R. 169, Fullagar, J., admitted an oral
declaration made by a soldier in actual military service to the commanding o.fficer
of the unit in which he was serving, expressive of his intention "to leave everything to"
a specified person; and granted letters of administration with the will annexed consisting of the filed precis of such declaration. See too in the Goods oj Spicer;
Spicer v. Richardson, (1949) P. 441; 65 T.L.R. 590; [1949) 2 All E.R. 659. Compare
Re Wakeling, [1946] V.L.R. 295 (engrossment in due legal form intended for
execution but unsigned and unattested admitted to probate).
Whether a person was "in actual military service" is to be determined by the
courts, not by the declaration of any military or civil authority, In the Estate of
Anderson; Anderson v. Anderson, [1943J 2 All E.R. 609.
See also In the Estate of MacGillivray (1946), 62 T.L.R. 538; [1946] 2 All
E.R. 301.
The expression "seamen being at sea" has been interpreted judicially in In the
Estate oj Newland, [1952] P. 71; [1952] 1 All E.R. 841; and in In the Estate of
Wilson; Wilson v. Coleciough, [1952] P. 92; [1952] 1 All E.R. 852, in each of which
Havers, J., held that the deceased, being in the employment of a steamship company
and having made a will in contemplation of the fatal voyage, was "at sea".
For an illustration of the expression "in actual military service" see In the
Estate of Colman, [1958] 2 All E.R. 35.
A soldier may be "in actual military service" although there is no de jure war,
recognized by proclamation, in progress. See Re Gillespie, deceased, [1968] Q.W.N. 1
(which related to the Vietnam war).
Further as to "actual military service", see Re Ward, deceased, [19661 Q.W.N. 15;
Re Spann, deceased, [1965) Q.W.N. 16.
Notwithstanding s. 37, a soldier on actual military service who is under
the minimum legal age may make a will, Re Elliott, [1917] V.L.R. 323; Re Hiscock,
[1901] P. 78; In the Goods of Farquhar (1846),4 Notes of Cases, 651; Re Wernher,
[1918] 2 Ch. 82.
A volunteer for service is not on actual military service until he is enrolled
as a soldier, In the Will of White (1915), 32 W.N.(N.S.W.) 57. As to when
actual military service commences, see also In the Will oj Rowston, [1917]
Q.W.N. 39; Re Bowden, [19161 N.Z.L.R. 835; Re Moore, [1920] N.Z.L.R. 129;
Re Elliott, [1917] V.L.R. 323.
A seaman who has severed his connexion with his ship and lives on shore
for five weeks is not a "seaman at sea", Re Broadbent, [1916) N.Z.L.R. 821.
To constitute a will a document or statement must have been made animo
testandi, Re Milling, [1916] N.Z.L.R. 1174 (letter describing contents of a
will held not to be a will). Compare Re Hunter, [1919] N.Z.L.R. 95; PUmmer v.
PlIblic Trustee, [1931] N.Z.G.L.R. 478. But it is not necessary to prove that
the testator knew that he was making a will or that he had power to make a will
while a minor or by word of mouth. It is enough if he intended deliberately to
give expression to his wishes as to the disposition of his property in the event of
his death, Dalrymple v. Campbell, [1919] P. 7; Re Beech, [1923] P. 46, at p. 56;
[1922] All E.R. Rep. 106. For other cases, see Re Edgar, [1919] V.L.R. 683; Wells v.
Quamby (1917), 13 Tas. L.R. 6; Re Martin, [1917] N.Z.L.R. 219; Re McClintock,
690
SUCCESSION
Vol. 16
[1919] N.Z.L.R. 520; Re Rule, [1916] N.Z.L.R. 254; Re Beaumont, [1916]
N.Z.L.R. 1002; Re Hovey, [1918] S.A.L.R. 169; Re Mackie, [1922] N.Z.L.R. 651;
notes to s. 36.
Return to civil life prior to death does not operate as a revocation of the
will, In the Goods of Coleman, [1920] 2 LR. 332. Formalities are not required
to effect revocation, In the Estate of Gossage, [1921] P. 194.
The Rule that declarations by a testator are not admissible as evidence to
prove the making of his will applies where the testator is a soldier on actual
military service. Re Butcher, [1920J V.L.R. 166. See also, as to proof of
soldiers' wills, Re Muir, [1919] N.z.L.R. 632.
As to disposal of property of seamen who have made wills, see Navigation
Act 1912-1965. s. 157 (Commonwealth); Merchant Shipping Acts, 1894 to 1967,
s. 177 (Imperial) (title SHIPPING, Vol. 15, p. 322), as to application of which see
ibid., S8. 260, 261, 264.
See also 39 English and Empire Digest, (Rp!.). p. 399.
44. Act not to affect provisions of 11 Geo. 4 & 1 Wm. 4 c. 20 with
respect to wills of petty officers, etc. 7 Wm. 4 & 1 Vic. c. 26 s. 12.
This Act shall not prejudice or affect any of the provisions contained
in an Act passed in the eleventh year of the reign of His Majesty King
George the Fourth and the first year of the reign of His late Majesty
King William the Fourth intituled "An Act to Amend and Consolidate
the Laws relating to the Pay of the Royal Navy" respecting the wills
of petty officers and seamen in the Royal Navy and non-commissioned
officers of marines and marines so far as relates to their wages pay
prize money bounty money and allowances or other moneys payable
in respect of services in Her Majesty's Navy.
Acts referred to:
11 Gen. 4 & 1 Wm. 4 c. 20. repealed.
Wills Act, 1837, 7 Wm. 4 & 1 Vic. c. 26; see 26 Halsbury's Statutes of
England, 2nd ed., p. 1326.
PUBLICA nON
45. Publication not to be requisite. 7 Wm. 4 & 1 Vic. c. 26 s. 13.
Every will executed in manner hereinbefore required shall be valid without
any other publication thereof.
"Publication" was a declaration by the testator in the presence of witnesses
that the instrument produced to them was the will. Its place is now taken by
attestation under s. 39.
COMPETENCY OF ATTESTING WITNESSES
46. Will not void by incompetency of witness. 7 Wm. 4 & 1 Vic.
c. 26 s. 14. If any person who shall attest the execution of a will shall
at the time of the execution thereof or at any time afterwards be
incompetent to be admitted a witness to prove the execution thereof such
will shall not on that account be invalid.
As to competence of witnesses, see 15 Halsbury's Laws of England, 3rd ed.,
p. 418.
47. Gifts to an attesting witness to be void. 7 Wm. 4 & 1 Vic.
c. 26 s. 15. If any person shall attest the execution of any will to whom
or to whose wife or husband any beneficial devise legacy estate interest
gift or appointment of or affecting any real or personal estate (other
than and except charges and directions for the payment of any debt
or debts) shall be thereby given or made such devise legacy estate
SUCCESSION ACT OF 1867
ss.43-48
691
interest gift or appointment shall so far only as concerns such person
attesting the execution of such will or the wife or husband of such
person or any person claiming under such person or wife or husband
be utterly null and void and such person so attesting shall be admitted
as a witness to prove the execution of such will or to prove the validity
or invalidity thereof notwithstanding such devise legacy estate interest
gift or appointment mentioned in such will.
This section has no application to a will made under the privilege contained
in s. 43, Re Limond, [1915) 2 Ch. 240, [1914-15) All E.R. Rep. 214.
The mere fact that witnesses are supernumerary witnesses does not save
them from the disqualification under the section, if in fact they have attested a
will which is executed under the affirmative provisions of the Act, Randfield v.
Randfield (1860), 8 H.L. Cas. 225, 232. But the signature of a beneficiary not
made as an attesting witness will not affect the gift, Re Garthe, [1935) Q.W.N.
15.
A will creating a power of appointment was witnessed by the husband of
the object of the power, and the appointment to such object was held not to be
affected by this section, Re Koch, [1931] V.L.R. 263.
As to whether this section prevents an executor who was also a witness from
taking the residuary estate beneficially, see Re YOUIlf.{; BrOlI"1l v. Hans/ord,
[1923J V.L.R. 6.
A gift to a witness as a trustee merely without any beneficial interest is
valid, Re Robinson (1874), 4 S.C.R. 68. But where an attesting trustee is a
solicitor who is given a right to profit costs, he will lose such right, Re Pooley
(1888), 40 Ch. D. 1; [1886-90] All E.R. Rep. 157.
Where the gift is to a fund for the benefit of a religious community, the fact
that attesting witnesses are members of the community, and as such may get some
benefit from the gift, does not affect its validity, Re Ray's Will Trusts, [1936]
2 All E.R. 93.
A witness to a codicil may take a devise under the will. Gurney v. Gurney
(1855), 3 Drew. 208; Tempest v. Tempest (1856), 2 K. & J. 635.
Where a gift to one of two joint tenants is void under this section, the other
joint tenant takes the whole, Re Colton (1923), 19 Tas. L.R. 57. But where
the gift was of a sum of money to two persons in shares, one of whom was a
witness, the other was held to take only his share, Marland v. Geyger, [1910]
St. R. Qd. 378; [1910] Q.w.N. 57.
For a case of acceleration of estates in remainder by virtue of the failure
of the life interest due to the operation of this section, see Burke v. Burke
(1899),18 N.Z.L.R. 216.
See In the Will of MarRaret Lyons, [1943] Q.W.N. 45, and Re Drane,
[1946] Q.W.N. 3, Re King, [1949] Q.w.N. 4, applying Re Trotter, [1899] 1 Ch. 764
(solicitor executor; charging clause in will, which he did not attest; two codicils,
one substituting an executor, the other relating to release of a mortgage, both
confirming the original will, and both attested by solicitor executor; charging clause
held not invalid), Re Oberg, [1952] Q.W.N. 38 (charging clause in favour of
solicitor executor not invalidated by the fact that one of the subscribing witnesses
was the solicitor's clerk), Re Young; Young v. Young, [1951] Ch. 344 (where one
of the witnesses of the will, an employee of the testator, being a beneficiary under
a secret trust which the testator had communicated to his wife before the date of
the will, was held to take, not by virtue of the will itself, but by virue of the
secret trusts imposed upon the wife, who did in fact take under the will).
This section was applied in Calcino v. Fletcher, [1969] Qd. R. 8.
48. Creditor attesting to be admitted a witness. 7 Wm. 4 & 1 Vic.
c. 26 s. 16. In case by any will any real or personal estate shall be
charged with any debt or debts and any creditor or the wife or husband
of any creditor whose debt is so charged shall attest the execution of
such will such creditor notwithstanding such charge shall be admitted
a witness to prove the execution of such will or to prove the validity or
invalidity thereof.
(,92
SUCCESSION
Vol. 16
49. Exc(.'utor to be admitted a witness. 7 Wm. 4 & 1 Vic. c. 26
s. 17. No person shall on account of his being an executor of a will be
incompetent to be admitted a witness to prove the execution of such
will or a witness to prove the validity or invalidity thereof.
As to a gift to a trustee, see notes to s. 47.
As to whether an executor who is also a witness can take the residuary estate
heneficially, ,ee ss. 34, 35, and Re Young; Brown v. Hallsford, [1923] V.L.R. 6.
REVOCATION AND ALTERATION
50. Will tu be revoked by marriage. 7 Wm. 4 & 1 Vic. c. 26 s. 18.
Every will made by a man or woman shall be revoked by his or her
marriage except a will made in exercise of a power of appointment
when the real or personal estate thereby appointed would not in default
of such appointment pass to his or her heir executor or administrator
or the person entitled as his or her next of kin under any statute of
distribution.
See Re Gillard, [1949] V.L.R. 378.
As to wills in contemplation of marriage, see Law Reform (Wills) Act of
1962, p. 641, allte. Compare Re Langston, [1953] p. 100; [1953] 1 All E.R. 928;
III the Goods of Dm'is, [19521 P. 279; [1952] 2 All E.R. 509.
As 10 "heir". see now Intestacy Act of 1877, ss. 13, 27, pp. 634, 637. lillIe.
Di,tribution on intestacy is governed by ss, 29 ct seq., allte.
A will revoked by marriage may be revived by a confirmation executed in
proper form after marriage. See III t/z(' Will 0/ P!ltclzell (1878), 4 V.L.R.
(I.P. & M.) 32.
The courts do not appear to have formulated any general rule as to when
it is the duty of solicitors to inform clients of the clTect of marriage on wills
which they have been instructed to draw. Ashworth, J., apparently had no doubts
about the matter when he awarded substantial damages to a widow in an action
against a solicitor based on his failure so to inform her and the consequent loss
that she suffered upon the death intestate of her husband, for whom as well as for
her he had drawn mutual wills before their marriage, which was celebrated after
SOllle years of cohabitation. The defendant succeeded on appeal, but on another
ground, namely that the judge admitted an amendment of the statement of claim
which alleged a new cause of action that was statute-barred, Hall v. Meyrick,
\1 <)57] 2 Q.B. 455; [19571 2 All E.R. 722. Their Lordships severally declined to
decide the really interesting and important question argued on the appeal. Hodson,
LJ., while observing that the trial judge's decision at any rate was supported by
evidence, added: "r leave that matter, having made it clear, I hope, that r am not
going to impose an extravagant standard of duty on solicitors who are making
wills for their clients." Parker, L.J., found it unnecessary to go into the further
question whether the defendant was guilty of any breach of contract or duty and
as to the damages which might result. He concluded with these words: "r would
expressly say, however, that I entirely associate myself with the general observa1iuns that my Lord has made on the duty of a solicitor." Ormerod, L.J., likewise
agreed, but had no doubt that it would be the clear duty to the solicitor to inform
him if the client told him that he intended to marry in the ncar futlll'e.
See aho 4S English and Empire Digest, (Rpl.), p. 160.
5 I. No will tu be revoked by presumption. 7 Wm. 4 & 1 Vic. c. 26
s. 19. No will shall be revoked by any presumption of an intention on
the ground of an alteration in circumstances.
See Re Wells' Trusts (1889), 42 Ch. D. 646.
52. In what cases wills mav be revoked. 7 Wm. 4 & 1 Vic. c. 26
s. 20. No will or codicil or· any part thereof shall be revoked otherwise
than as aforesaid or by another will or codicil executed in manner
hereinbefore required or by some writing declaring an intention to
SUCCESSION ACT OF 1867
ss.49-52
693
revoke the same and executed in the manner in which a will is hereinbefore required to be executed or by the burning tearing or otherwise
destroying the same by the testator or by some person in his presence
and by his direction with the intention of revoking the same.
For manner of execution and attestation of a will, see s. 39. The execution
of a writing revoking a will must be attested in the manner required for a will,
Rc Jones' Will (1895),6. Q.L.J. 261.
A writing revoking a will must have been executed by the testator when of
sound mind, Davies v. Williams (1896), 6. Q.L.I. 278.
Where duplicate wills are executed containing a clause revoking all prior
wills, the part executed last will revoke the part executed first, R e Raff, [1902]
Q.W.N. 66. Compare Re Handford, [1905J Q.W.N. 71. The mere description of
a will as the last will of the testator will not revoke a prior will, III tlze Will of Hill,
[1930) Q.W.N. 42. As to the effect of a codicil describing itself as the last will and
testament, see Re Luck, [1905] Q.W.N. 4.
In the event of inconsistency between a will and a codicil, the provisions of
the will are revoked to the extent of the inconsistency, Bartoll v. Murray Prior,
[1906] St. R. Qd. 98; [1906) Q.w.N. 17; III tiz!' Will of Fagg, [1932] Q.W.N. 9;
Re Allison (1899), 1 N. & S. 169; Redman v. Hage (1914), 18 C.L.R. 640;
f'o,lclbollrne Hospital V. Perpetual Ex('cU/ors and Trustees Assoc. (1915), 20
C.L.R. 421. Similarly in the case of inconsistency between codicils, the earlier
codicil is pro tanto revoked by the later codicil, Nicholson v. Husband (1899),
1 N. & S. 205, and in the case of inconsistency between two wills where the
first is Dot expressly revoked by the second it is revoked to the extent of the
inconsistency, Re Goodes, [1922] S.A.S.R. 180. Proof of execution of a subsequent
will is no evidence of revocation of a will, unless it is shown that the subsequent
will contained words of revoeation or inconsistent pruvisions, Gair v. Bowers
(1909),9 C.L.R. 510.
On intention to rcvole. see also In the Will alld FOllr Codicils oj Warry,
[1944] Q.W.N. 44. Contrast Re Ellen Simpsoll, [1950] Q.W.N. 13.
For an example of an implied revocation of a codicil by a second codicil,
which was admitted to probate with the will, see Re Buckley, [1952] V.L.R. 107;
[1952J A.L.R. 317.
For an illustration of a partial revocation, confined to the beneficial interests
of one person, see Re Spellsle",'s Will Trusts: Barclay's Bank Ltd. v. Staughton,
[19521 Ch. 886; [1952J 2 All E.R. 49.
For an illustration of the distinction between revocation and substitution,
see Re Plant; Johnson v. Hardwicke, [1952] P. 298; [1952] 1 All E.R. 78, where
Roxburgh, J., admitted two wills to probate.
For a statement of the principles of construction applicable to a revocatory
clause, see Re Wray; Wray v. Wray, [1951] I All E.R. 375, where the Court of
Appeal, applying Rc Freeman, [19101 1 Ch. 681, and Re Percival (1888), 59 L.T.
21, cut down the words of revocation. See also Re Swords, [1952] 2 All E.R. 281,
where Wallington, J., granted probate with the exclusion of some words of
revocation from a codicil which the testatrix had inserted under a misapprehension,
where such excision would carry out her intention.
For an example of a revocation clause in an English will expressed to apply
only to estate in England, but not intended to revoke a Belgian will disposing of
Belgian estate, see In the Estate of Wayland, [1951] 2 All E.R. 1041.
Where it is sought to prove the revocation of an earlier will by oral evidence
oniy, the evidence must be stringent and conclusive; see Re Wyatt, ]19521 1 All
E.R. 1030, where Collingwood, J., aprlying Clitia v. Gilbert (1854), 9 P.C.C. 131,
found that there was no such evidence. On the question of evidence upon the
hearing of a motion ex parte, see Re Lilley, [1953] V.L.R. 98; [1953] A.L.R. 149,
where Smith, I., declined to follow Jacker v. Jlltenzational Cable Co. Ltd. (1888).
5 T.L.R. 13.
As to when a writing executed as a will is such as to show an intention to
revoke, see Re Spracklan's Estate, [1938] 2 All E.R. 345; II/ the Will of Johnstoll,
[1912] V.L.R. 55.
On the necessity of executing a codicil where the testator has founded a charity
and desires to reserve a right to modify the documents incorporated in the will,
see ne Jones's Will Trtlsts (1942)' 58 T.L.R. 403; [1942] 1 All E.R. 642.
23
694
SUCCESSION
Vol. 16
A will duly executed and duly attested may be revoked in whole or in part
by a seaman "at sea" without formalities. See lIZ the Estute oj Newland, [1952)
P. 71; (1952) 1 All E.R. 841.
In Re LClI"iS, [1956] Q.W.N. 5, application was made for a grant of probate
of copy of a lost will executed in the year 1942 by a member of the Royal Australian Air Force on active service in Scotland. It appeared that the original after
due execution was handed by the adjutant of the squadron with which the testat. lr
was serving to the orderly for filing with the testator's personal papers. The
adjutant, who was a solicitor, had subscribed the will as one of the witnesses and
made a copy of it which he certified to be a true copy. The net value of the estate
was sworn at £37.339. Stanley, J., who heard the application upon motion, on
reference by a deputy registrar, directed that probate issue subject tu a condition
that the applicant widow, the sole executor and sale beneficiary, would forthwith
upon the issue of such grant institute proceedings under the Testator's Family
Maintenance Acts, for the proper maintenance and support of the children of the
marriage.
The intentions of the testator mu,t be declared in the manner required by the
Act and the order of the court must not give efIee! to any testamentary provision
which does not so conform. See R" Tait, deceased, [1957] V.R. 405, at p. 409:
[1957) A.L.R. ~62, at p. 864. In that case the Full COI~lt of Victoria, allowing
an appeal from Gavan Duffy, J., held that extrinsic evidence was admissible to
prove that the execution of a second will was conditional upon its containing
all the provisions (,f the earlier will (except alterations ~" to legacies which the
testatrix had varied). The earlier \\i!l containeu 1\,,0 c!aw,es whereby she devised
substantial parcels of real C:itate, which ti1uugh sl,e intendcc.: them to be in the
second will wei c omitted by the typist.
.\ kstator made a will and later revoked it by ti,c (':ccution of a second will.
Subsequently he made a codicil confirming the {irst will. The codicil contained
specific refercnces to the first will. Evidence was given that some time after the
te'.tator made the codici, he ,,,ok the second \\ ill from the bank where it was being
held, ~,qJ diligent search a:ld inquiries had failed t,' l'ne,1\ any trace of it. It wa.s
held that probate should be granted of the first will and cudicil. See Re Gear)"
[19601 Q.W.N. 37.
Revocation by de'iti'LL:lion animo rel·(}(lI//lli.-A will might be destroyed
so as to revoke it by the use of a knife or ink craser which would dam::wc
the surface of a document. R!' iI1ar.lilli, [19341 (l.W.N. 41. Thus the erasure 0(3
signature of a witness will revuke it if dune a!limn u')'()c{llirii. Re /vlurplzy (11'921.
18 V.L.R. 7gb. A \CiY slight tearing acro,s the signature where there was evidence
of an intcntior to rc\oke. was held to am(,unt to a revocation. Re Burker (1892),
13 A.L.T. 167. Crossing o::t testator's signal ure and writing "Destroyed" with
initials has no effect. III IiI" /ViIi 0/ Gordoll (1898). 15 W.N.(N.S.W.) 12. A will
cann,lt be I'C\ eked by merely striking through the signatures of the testator and
the attesting witr;csscs, Re Davellp0rf's Will (1~95). 6 Q.L.J. 285; Re Pepper;/I,
[1927] St. R. (lJ. 154: [192il Q.W.N. 35; HI' Mar.lilli, 11934J Q.W.N. 41. For cases
of revocation of portiun of a \\ill by cltting it alit. ,cc 111 I/;e Will oj Rice, [1931]
(l.W.N. 1: /(1' Talbot, [19251 S.A.S.R. 100: III !"I/IlIl'S Estate. [1936] 1 All E.R. 555.
Unexecuted pencilled aiterations made on a will with the i~tention of revoking it
and substitutiilg a new \vill do not revoke the will in its original form. Re Heise's Will,
[1902J Q.W.N. 30.
A testator does not revoke a testamentary instrument by merely writing the
word "Cancelled" across the face of it, Re Sakznl'ski, [1943] Q.W.N. 38. Nor can
a testator revoke it by purporting to ratify an unauthOlized act of destruction
on the part of another person. For an example, see III the Estate oj Simkill,
[19501 V.L.R. 341; 57 A.L.R. 600. where Dean. 1.. holding that a will torn in the
testator's presence by his wife without his authority or approval was not revoked.
refused a grant of let,ers of administration.
The presumption of destruction by the testator "animo rel'ocandi" of a will not
forthc(1ming at his death is rebuttable.
See 111 the Will oj Padger, [1957)
V.R. 275. where O·Bryan. 1.. followed Bielfeld v. Bieijeld, [1956) V.L.R. 319.
The fact that the beneficiaries. the only next of kin. agree that a copy of the lost
will should be admitted to probate does not relieve the court of the duty of
deciding whether that document remained the testator's last will at the date of his
death. ibid.
For an example of a successful application for a grant of probate of a copy
of a lost will, where the presumption of destruction lInimo yn'ocandi was rebutted
by the circumstances, see Re Fleischmanll, [1952) Q.W.N. 35.
SUCCESSION ACT OF 1867
ss. 52, 53
695
lbe destruction must be accompanied by an intention to revoke the will,
Smith v. Cunningham (1823), I Ad. 448. Thus there is no revocation where
it was intended that the destruction should not be operative until an event which
did not happen, Re MacCarthy, [1937] Q.W.N. 46, or where destruction takes
place in the mistaken belief that the will has already been revoked, Lippe v.
JJcddcrwick (1922), 31 C.L.R. 148, or that it is invalid, lIifl v. Winter (1880),
14 S.A.L.R. 182. A testator's declaration made a month before destruction was
held to be relevant to the question of the intention with which the will was
d'cstroyed, Re Finne)" [1934] V.L.R. 256.
Pre,umption of revocation.-There is a rebuttable preSl;mi;ti"n of law that
a will last heard of in the testator's possession which cannot be found after his
,',~"th was destroyed by him animo rcvocandi, R lisscll v. Matchett, [1903] SL K Qd.
n: Rc Hayes, [19061 Q.W,N. 44: McCauley v. McCauley (1910), to CL.R. 434;
Gair v. Bowers (1909), 9 C.L.R. 510, at p. 522; Re Fogarty, [1935] Q.W.N. 13.
The p:esumption of destructillrl ([!limo revocandi wi:! be rebutted by facts eS!:lblishing
a halai1ce d probability against such destrllctiDn, Q:/ccnsland Trustees Ltd. v.
F/,iw!, [!<;18] St. R. Qd. 107: 11913] Q.W.N. 22: Re Pepperiil, [ln7] St. R. Qd.
154: [19:'.7] Q.W.N. 35; McCllllley v. McCallley, supra; Lippe Y. Hedderwick
(1922),31 C.L.R. 148.
Conditional revocation.-Whcre the rcvoc<1tion of a will is dependent on a
condi:ion ""hich is not fuliillcd, the revocation is inoperative, In the Estatc oj
SC1 IltizcJ'liP!1, [1925] P. 177. See a:so Re MarCarlhy, supra. Thus where a will is
revoked by a new will or as part of the act of making a new wiII and the new will
or intended ncw will fails for some reason to t~ke effect as a disp()sition of the
testator's property, the rev()Catio~l of the first will is regardc:d as conditional and
will fail. This is known as the doctrine of dependent relative revocation. See
/?(' liUll! (1890), 16 V.L.R. 74~: Halsbury's Laws of England (lst ed.), Vol.
2(:, title Wills, p. 573. Thus a will is not revoked by de,trllction with the intention of reviving an earlier wi!1 for such earlier will is not revived thereby, Re Finllcy,
[I C)341 V.L.R. 256. flut this doctrine does not apply where an intended bequest
which failS in the latcr will is not the sole reason for revocation of the former
will, Re BUllrke. £lecc:lse:l, [19231 V.L.R. 480.
For examples of the application of the doctrine of dependent relatlve
revoc"tinn. see In the Estate oj Brown, [1942] 2 All E.R. 176; In the Will oj Cairns,
[li)4e1-) C.W.N. 9; III Ihe Wii! of Broomhcad, [1947J V.L.R. 319, where
the Supreme Court of VictO!ia declined to follow lloff[erlon v. Hewitt
(1872), 25 L.T. f,54: /11 the Estate oj Dm'ii's; Russeil v. Dc/aney,
[1951] I All E.R. 920 (noted under s. 39).
See also Re Rich, [1947]
S,,\.S.:z. n, and R" LindrcG, [1953] V.L.R. 168; [1953] A.L.R. 138, where Dean, J.,
dccli,,(~d t·.1 [allow the decision i'l R" Nil'en
(1 <)21), 21 S. R. (N.S.W.) 702.
C'lltr:l,t Rp Robinson, [1950] Q.W.N. 12. This doctrine may be applied to rebut
the presumption of the destruction of a will {[nimo rCl'ocandi even where the
physical destruction ()f the will is not proved by direct evidence, In the Estate oj
Bolti!',,; Botting v. Ih:ttill~, f! 951] 2. All E.R. 997; [1951] W.N. 571.
For an
example of a case in which the doctrine was applied notwithstanding a considerable
laps~ of time between the date when the testato,. discmsed his intention to make
a i"2W will 2nd his death, s;:c In tiz" Estate oj Bromlzalll-Wass v. Treasury Solicitor,
[I:) 52] 1 All E.R. 110, where Lcrd Ivfcrriman, P., granted probate of a complete
draft of the mutilated will.
A will may be revoked with respect to personal estate by a testator domiciled
abroad by a will which is valid in the juJisdiction of his domicile though there is
not revocation within this section. Sec Re Peat, deceas"d (1903), 22 N.Z.L.R. 997.
But as to immovable property, see Lewis v. Balshaw (1935), 54 C.L.R. 188.
Probate of a revoked will will not be granted even if all persons interested
in the event of an intestacy consent, Re Barker (1892), 13 A.L.T. 167.
See further 48 English and Empire Digest, (Rpl.), pp. 157 et seq.
53. No alteration in a will shall have any effect unless executed as
a will. 7 Wm. 4 & 1 Vic. c. 26 s. 21. No obliteration interlineation
or other alteration made in any will after the execution thereof shall be
valid or have any effect except so far as the words or effect of the will
before such alteration shall not be apparent unless such alteration shall
be executed in like manner as hereinbefore is required for the execution
of the will but the will with such alteration as part thereof shall be
696
SUCCESSION
Vol. 16
deemed to be duly executed if the signature of the testator and the
subscription of the witnesses be made in the margin or on some other
part of the will opposite or near to such alteration or at the foot or
end of or opposite to a memorandum referring to such alteration and
written at the end or some other part of the will.
For manner of execution of a will, see s. 39.
Sec also the concluding provision of s. 40.
Alterations were found to have been made before execution in Re Stell'arl,
[1904] Q.W.N. 4l.
The presumption is that unexecuted alterations in a will were not thcre at
the time of execution, Cinnamon v. Public Trustee (1934), 51 c.L.R. 403, at p. 416.
It is therefore prudent to execute all alterations either by names or initials, III the
Goods of Blewitt (1880). 5 P.D. 116, in the manner required by this section for
alterations made after execution.
As to how far the fact that alterations are made in ink of the same colour
as that with which the attesting witnesses have signed is evidence that the
alterations were made before execution, see III the Will of Smith (1886), 2 Q.L.J.
185. See also Re McCormack, [1932] Q.W.N. 31.
Extrinsic evidence is admissible to prove the contents of a will before an
unattested alteration had been made, III the Will of Baker (1922),39 W.N.(N.S.W.)
257.
See hereon ill the Estate Of Oates; Cal/oll' v. Slit/Oil (1946), 63 T.LR. 83;
[1946] 2 All E.R. 735; Re itter; Dedman v. Godfrey, 11950J P. 130: [19501 1 All
E.R. 68; III the Will alld Codicil of Brellall, [19521 Q.W.N. 1.
Sce also 48 English and Empire Digest, (Rpl.), p. 146.
As to application for probate of a will containing interiineations. alterations.
or erasures, see R.S.C. (1900), Order 71. rules 16-19, title SUPREME COURT
AND PRACTICE.
REVIVAL
54. How revoked will shall be revived. 7 Wm. 4 & 1 Vic. c. 26
s. 22. No will or codicil or any part thereof which shall be in any
manner revoked shall be revived otherwise than by the re-execution
thereof or by a codicil executed in manner hereinbefore required and
showing an intention to revive the same and when any will or codicil
which shall be partly revoked and afterwards wholly revoked shall be
revived such revival shall not extend to so much thereof as shall have
been revoked before the revocation of the whole thereof unless an
intention to the contrary shall be shown.
For the manner in which wills and codicils are required to be executed. see
s. 39.
A will is not revived by the revocation of a later will which revokes the
first, Ne Hayes, [1906] Q.W.N. 44.
The execution of a \ViII simply appointing executors "to my will" may
operate as a revival of a revoked will, III the Will of tillcy (1882), 8 V.L.R. 32.
A mere reference to a will by its date in a codicil reviving it is not sufficient to
exclude earlier codicils to that will from the revival. See Re Daly (1900). 2
N. & S. I.
As to an inaccurate description in a reference to a former will, see III the
Estate of Taylor, [193HI 1 All E.R. 586.
The revival by a codicil of an earlier will containing a revocation clause
revokes a later will which had revoked the earlier. III the Estate of Home (1920),
20 S.R.(N.S.W.) 531.
For an intention to revive a revoked will, see Ue Kelly, [19421 Q.W.N. 31.
Contrast In the Will and Codicil of E. 1. Tholl1psolI, [1945J Q.W.N. 15. See also Re
Larsen, [1946] Q.W.N. 42 and Re Lyoll, [1950] Q.W.N. 17 (inadvertent reference
in codicil to earlier revoked will by date only held insufficient to revive it). and cases
mentioned under s. 50.
As to revival, see also 48 English and Empire Digest, (Rpl.), p. 214.
SUCCESSION ACT OF 1867
ss.53-56
697
CONSTRUING OF WILLS
55. When a devise not to be rendered inoperative, etc. 7 Wm. 4 & 1
Vic. c. 26 s. 23. No conveyance or other act made or done subsequently
to the execution of a will of or relating to any real or personal estate
therein comprised except an act by which such will shall be revoked
as aforesaid shall prevent the operation of the will with respect to such
estate or interest in such real or personal estate as the testator shall
have power to dispose of by will at the time of his death.
See also the concluding provision of s. 36. and s. 56.
This section does not apply where the thing meant to be given is gone,
Sligo v. Keenan, [1918] N.Z.L.R. 395; Moor v. Raisbeck (1841), 12 Sim. 123,
139; Farrar v. Willterton (1842),5 Beav. 1.
A gift of leasehold property of which the testator subsequently purchased
the reversion was held to pass the fee simple by virtue of this section, lI1inifie
v. Hall (1871), 1 C.A. 421 (N.Z.).
This section does not affect the rule against double portions, Public Tru.I"/e{' v.
Regan (1933),33 S.R.(N.S.W.) 361.
For an instance in which the court construed the word "executor" in a homemade will as meaning also trustees, see Re Robinsoll; Daris v. Robinson, [1951]
I Ch. 198.
For modes of failure of a gift generally, see 48 English and Empire Dige~t,
(Rpl.), pp. 256 el seq.
56. A will to speak from the death of the testator. 7 Wm.
c. 26 s. 24. Every will shall be construed with reference
estate and personal estate comprised in it to speak and
as if it had been executed immediately before the death of
unless a contrary intention shall appear by the will.
4 & 1 Vic.
to the real
take effect
the testator
See also the concluding provision of s. 36. and s. 55.
The Married Women's Property Act, 1890, s. 3 (1) (title MARRIAGE AND
DIVORCE, Vol. 11, p. 317) empowers a married woman to dispose of her separate
property by will. See also Married Women (Restraint upon Anticipation) Act of
1952. title MARRIAGE AND DIVORCE. Vol. 11, p. 411.
This section only applies to the real and personal estate comprised in it,
and not to the objects of the testator's bounty, RI' Coley; Hollinshead v. Coley.
[1903] 2 Ch. 102; [1900-3] All E.R. Rep. Ext. 1094: Amyot v. Dwarris, [I904J
A.C. 268. Previously to the passing of the Act a gift of a testator's real and
personal estate was construed as passing the real estate belonging to the testator
at the time when the will was made only, and the personal estate which belonged
to the testator at the time of his death (Jarman on Wills, 5th ed., p. 290). Since
the Act. a will must, unless it shows a contrary intention, be construed as if the
condition of things to which it refers was that immediately before the testator's
death, lIi{:gins v. Dawson, [1902] A.C. L at p. 7; [1900-3J All E.R. Rep. Ext. 1470;
Re R("'I'es; RcCl'cs v. Pawsoll, [19281 1 Ch. 351; [19281 All E.R. Rep. 342; and see
48 English and Empire Digest. (Rpl.), pp. 514 et seq.
This section applies to a codicil. TreadlVcll v. Hitcilinr:;s, [19251 N.Z.L.R. 519.
See definition of "will" in s. I.
See, for an example of a conditional will. III tlie Estate of O'Connor, [1942]
1 All E.R. 546.
The section was applied in Brown v. Blitcher (1922), 22 S.R.(N.S.W.) 176;
III the Will of Smith, [1916J V.L.R. 540; Re llaylCr, [1937] 2 All E.R. 110
(gift of "everything I die possessed of').
"U.lless a contrary intention shall appear by the will".-The contrary
intention must be found in the will, Boyes v. Cook (1880). 14 Ch. D. 53, 57; but
it is not necessary that such contrary intention should be expressed in so many
words, or in some way quite free from doubt; but it is to be gathered by
adopting, in reference to the expression used by the testator, the ordinary rules
of construction applicable to wills, Cole v. Scott (1849), 1 Mac. & G. 518; and
see Re Wells; Hardisty v. Wells (1889), 42 Ch. D. 646; Re Evans; Evans v.
Pawl'/[, [1909] 1 Ch. 784; Emllss v. Smith (1848), 2 De G. & Sm. 722; Saxton v.
Saxton (1879), 13 Ch. D. 359; DouRlas v. Douglas (1854), Kay 400; Re Bancroft;
698
SUCCESSION
Vol. 16
Bancroft v. Bancroft, [1928J 1 Ch. 577; Re Stokefl (1913), 9 Tas. L.R. 7.
As to the introduction of the word "now" into the gift, see Coil' v. Scott (1849),
1 Mac. & G. 518, at p. 528.
Where the specific description of the subject matter of a gift is such that
it on apply only to a particular thing as it existed when the testator made his
will, then that only will pass under it, Georgetli v. Georgctti (1900), 18 N.Z.L.R.
849; Re RudJ (1914),33 N.Z.L.R. 1446.
In applying the law as to ademption and i'l applying the law relating to
election the court looks to events that have occurred subsequently to the will.
See Re Edwards; Macadam v. Wright, [1957] 2 All E.R. 4~15, where the COllrt of
Appeal reversed the decision of Upjohn, J., [1957] J Ch. 21; [19561 3 All E.R. 526.
For a case in which the court supplied words necessary to give effect to a
test~ltri::'s i'1tcntion see Rc Whitrick; Sutcliffe v. 5'11 tc liffl' , [1957] 2 All E.R. 467.
S"e R i' Vir[{', [1955] V.LR. 200; [1955J A.L.R. 499. There the testatrix, WilD
in the will described herself as "M,V., v:if~ of L.V.," devised and b':queathed her
estat~ tq h.:r trustee "U),)(;11 trllst for my sad husband . . . if he shall be living
at my d"llh." D~all, 1., k 1d that L.V. was entitled to take the estate, 110twithsta.l.iiT'g that t:le testatri\ IL.d subsequently divorced him and had di~d without
a!tcii'l" ti'e \vi!l.
Fur ~t'l cyample Pi the :,~plic:ltion of the funll:im,=ntal principle slat'cd in this
prpvi'i'c~m <,,:e Rc !c':·,,'crds. [1958J 1 eh. 1('8; f 195~q 2 All E.R. 4')5, w;~,,:re the
C ' I'ti d !-.rp·.:al, rcY~r:iin" the decision of Upjehn, J., [1957J eh. 21; r195!i1 3 All
E.R. '26, ,til<1 disti'lgl!ishin¥ C~'('pc" 'I, CooT'''' (1874). L.R. 7 I-LL. 53. held that
a ,;p'.:ciJlc tiC\';';r~ of prorcrty had been adeemed.
SeC ,,1;(1 Public Trustce Y. Frcem:ll, [1958) V,R. 3(.6; [l':Sgl A.L.R. 749.
FDr a else of a general gift of shares in a company, sec Co:f.·v v. Corley
(1911 ), 31 N .Z.L. R. ~87. FDi' a C;lse of a specific gift of shares, sc·;:: G iiardia!l,
T/'II\', aw! ('-'),0('11/')1" C,'. v. Smilh, [1')23] N.z.L.R, P84.
See gener:t!ij 4:) E:1g!ish :md Fmp:re Dig~s\. (Rpl.), p. 514.
57. "Vha! a rcsidml,'V devise shall inclmlc. 7 Wm. 4 & I Vic. Co 26
s. 25. Unless a co~trary intcntion shaH a~1pcar by thc will slIch real
estate or inter'cst therein as "hall be comprised or inte;,ded to be
C()!~11~ri~cd in any d:;vise ill sLlch will contained which shall fail or be
vo>!' tv redson o'f the de,,~h of the devisee in the lifetime of t),~ t:'~;tat('r
or ;))1 reason of such devise being contrary to law or otherwise i~capQt~i.::
of raking efTect shall be i\icludcd in the residt:ary devise (if any) contained
b such will.
'nl~ s~~ction aprlics o'lly to th,: ::ase where the re,id':ary devise is so worded
as to apply universally to all land of the testator that is not othcrwi,e disposed
oi. ~'n;'in?l'!t v. irliliingl' (1871), 6 eh. App. 333, 338, and not to the case
W>,'L; ti'~ "if! i., 0:11,. of a D~,rticul:!;~ r(~sidlle, a': "ueh a gift is in effeet specific,
R·· Bmw!! (I ~55). 1 K. & J. 522. at p. 526. A gift, 1f "all property not hereinbefore
disposed of" is :l gift of residue and shows no il1tenti(ln tu e:.clude from its
opcratio;l lapc,ed specific gifts, F'allllagan v. Naliona/ Tl'I!stecs, Ex('cutors, and
A ~;"'('y Cn. (1923), 32 C.L.R. 468.
For an cXilmplc of the use of "bal:mce" as contrasted with "residue", sec
Re Kif'ping; Shearer v. Hi.'!, [1948J St. R. Qd. 247.
FPf an example of two gifts of residue hcid to be not irtTconcilab:e, sec
R? Gare; Filmer v, Carter, [1951) 2 T.L.R. 1003; f1951] 2 All E~R. 863.
See hereon Rc Rovce's Wi:! Trusls; Ti/tleslev v. Tildes/c\', [1958] 3 All E.R.
586, where the first dcf~ndaf1t a solicitor, as an attesting witnesS; was held disqualified
from l:iking any beneat under the will, notwithstanding that he was appointed
trustee after the testator's death.
58. What a general devise shall include. 7 Wm. 4 & 1 Vic. c. 26
s. 26. A devise of the land of the testator or of the land of the testator
in any place or in the occupation of any person mentioned in his will or
otherwise described in a general manner and any other general devise
which would describe a leasehold estate if the testator had no freehold
estate which could be described by it shall be construed to include the
SUCCEssrON ACT OF 1867
ss.56-59
leasehold estates of the testator or his leasehold estates or any of tllem
to which such description shall extend (as the case may be) as well as
freehold estates unless a contrary intention shall appear by the will.
As to' application of this sectiO'n to' a devise of "real estate", see Public Trustee
v. Logan (I925), 25 S.R.(N.S.W.) 194; Perpetual Trustee Co. Ltd. v. GriUin
(1924),41 W.N.(N.S.W.) 150.
See 48 English and Empire Digest, (Rp!.), p. 528.
59. What a general gift shall include. 7 Wm. 4 & I Vic. c. 26
s. 27. A general devise of the real estate of the testator or of t!le real
estate of the testator in any place or in the occupation of any persun
mentioned in his will or otherwise described in a general mallner shall be
construed to include any real estate or any real estate to whic:l suc!l
description shall extend (as the case may be) w!lich he may have power
to appoint in any manner he may think proper and shall operate as an
execution of such power unless a contrary intentior. shall appear by the
will and in like manner a bequest of the personal estate of the testator
or aey bequest of pe~'sonal property described in a general man!1er shall
be cO:lstrued to include any pe,'sonal estate or a'1Y perso,'lal estate to
which such description shall exte:1d (as the case may be) \vhich he may
have power to appoint in any manner he may thi::k proper and shall
operate as an execution of such power unless a contrary intention shall
appear by the will.
As to excultiun of powers of appointment by will, see s. 42.
For (he effect of the execution of a general power of appointment by a
married woman, see Married Women's Property Act, 1890, s. 6, title MARRIAGE
AND DIVORCE, Vol. 11, p. 399.
This section extends only to general powers and not to special Of resUicled
powelS, Ciovl's v. Awdry (1850), 12 Beav. 604.
The \vords "of which I shall die possessed" following a general gift do
not prevent the exei'ci'e of a general power of appointment, A Incandcr v. A iex{[lItier
(1909),28 N.Z.LR. R95.
A general power of appointment was held not to have been executed by a
\V ill which contained a gift of the residue of the estate and effects which were
srccirlcally enumerated without mention of the property subject to the pov,'er,
Rc iJroWIl (1905), 1 Tas. LR. 8.
Where a devise of the beneficial interest in property comprising that subject
to a general power of appointment lapsed, it was held that such property fell to be
di~;r(lsed of under the residuary devise, Alldrew v. Morgan (1923), 19 Tas. LR. 36.
Extrinsic evidence cannot be adduced to show a contrary iatention, Alexander
v. Alexander (1S09), 211 N.Z.LR. 895; Hudsoll v. Gray (1927), 39 C.L.R. 496:
afllrmcd, 40 C.L.R. 558: [1928] A.C. 473.
See Re Box's Settlement; Box v. PlalH, [1945] 1 All E.R. 547 (general
bequest of personalty operating as a valid exercise of a general power) Re Harvey;
Bannister v. Thirtle, [1950] 1 All E.R. 491; [19501 1 T.L.R. 609 (general power of
appointment exercised by devise and bequest of real and personal estate to' tmstees
h favuUf of a charity).
For an example of the exercise of a power of appointment held to be
f!'audu!cnt and therefore inefficacious, see Re Simpson; Chadderton v. Simpson,
[1952] Ch. 412.
Fnr an example of an absolute apPO'intment cnupled with a cnndition which,
not being an integral part of the gift, was heJd unauthonzed and void, see Re Rigby;
Downing v. Rigby, [1950] V.L.R. 346.
F0r an example O'f the valid exercise of a special power of appointment,
notwithstanding the inclusion O'f person nnt O'bjects nf the power, see Re Latta's
Marriage Settlement Trusts; Public Trustee v. Latta, [1949] 1 Ch. 490; [19491
I All E.R. 665.
700
SUCCESSION
Vol. 16
The burden of proving a contrary intention within this section is on those
who seek to show that the power has not been exercised. See Re 1'hirlwell's Will
1'r/,;O'(O'; Evans v. 1'hirlwel/, [1957] 3 All E.R. 465 (noted under s. 42), where
Roxburgh, 1., applied the dictum of Sargant, 1., in Re Jarrett, [1919] 1 Ch. 366;
[1918-19] All E.R. Rep. 388.
See on this section Evans v. Thiriwcll, [19581 P. 146, there the testatrix, who
had a general power of appointment under a settlement, made no reference to the
power in the residuary gift in her will executed nineteen years later, though in
other clauses of the will she expressly exercised two other powers of appointment
which she had under two other settlements. Roxburgh, J., applying Re Jarrett,
[1919] 1 Ch. 366; [1918-191 All E.R. Rep. 388 held that the general rule, that a
residuary bequest was effective to dispose of property over which the testatrix had
a general power of appointment, applied.
For an example of tests applied upon the determination of the question
whether a power of appointment was validly exercised see. Re Tomkills; Sandhur.\·t
and Northern District Trustees, Exccutors alld Agellcy Co. Ltd. v. Pitt, [19581
V.R. 310; [1958] A.L.R. 693.
S\!e generally 37 English and Empire Digest, (Rp!.), p. 294.
60. How a devise without words of limitation shall be construed. 7 Wm.
4 & 1 Vic. c. 26 s. 28. Where any real estate shall be devised to
any person without any words of limitation such devise shall be construed to pass the fee-simple or other the whole estate or interest which
the testator had power to dispose of by will in such real estate unless
a contrary intention shall appear by the will.
A remainder to the "issue" of the life tcnant was read as if it were to the issue
"and their heirs" by virtue of this section, CampiJl'/l v. Glasgow (1919), 27
C.L.R. 31.
A bequest of all a testator's real and personal estate to his wife "to be used
by her as she may think proper for the benefit of herself and our children" was
held to confer on the wife an absolute interest in the estate, In tlze Will of [,awn,
[1911] V.L.R. 318.
A will which gave to the testator's wife, after payment of debts. "all his real
an' I personal estate for her sale use and benefit and at her death the residue to be
equally divided amongst any of his children, ctc." was held to confer a life
interest oniy on the wife, Re Ridgway; Sutherland v. Ridgway (1900) 26 V.L.R. 254.
A devise to a wife for use and enjoyment while she remains the testator's
widow is a devise with words of limitation, and is not within this section, Trustees,
F,'eel/tors, ('te., Ltd. v. Wharton (1897), 19 A.L.T. 20. Compare III the Wii/ of
Hoar", [IYOgj V.L.R. 369.
A gift ttl a person "for her use absolutely until the youngest child shall attain
the <l);C of t\\ enty-one years" shows an intention ..:ontrary to the disposition of the
fcc simple, Pead v. Pea,] (1912), 15 C.L.R. 510.
Sec 48 English and Empire Digc:;t, (Rp!.), pp. 534 ('/ seq.
61. How the words "die without issue" "die without leaving issue"
or "have no issue" shall be construed. 7 'Vm. 4 & 1 Vic. c. 26 s. 29.
In any devise or bequest of real or personal estate the words "die without
issue" or "die without leaving issue" or "have no issue" or any other
words which may import either a want or failure of issue of any person
in his lifetime or at the time of his death or an indefinite failure of
his issue shall be construed to mean a want or failure of issue in the
lifetime or at the time of the death of such person and not an indefinite
failure of his issue unless a contrary intention shall appear by the
will by reason of such person havir.g a prior estate tailor of a preceding
gift being without any implication arising from such words a limitation
of an estate tail to such persoll or issue or otherwise.
SUCCESSION ACT 01' 1867
ss.59-65
701
Provided that this Act shall not extend to cases where such words
as aforesaid import if no issue described in a preceding gift shall be born
or if there shall be no issue who shall live to attain the age or otherwise
answer the description required for obtaining a vested estate by a
preceding gift to such issue.
In wills made before this Act, the words "die without issue" were construed
to mean the death of the person SpOLCll c:, and failure of his issue at the time
of his death or at any time afterwards, unless the context shows the meaning to be
confined to a failure of issue at the time of his death and the rule applied both
to real and personal estate (Hawkins on Wills, 2nd ed., p. 257).
See Re Ross (1901), 1 S.R.(N.S.W.) (Eq.) 1 ("die without lawful heirs");
Neville v. Neville (1903), 3 S.R.(N.S.W.) 378 ("die without heirs"); Re Galligan
(1913), 13 S.R.(N.S.W.) 291 ("die without lawful issue"); StadCll v. Maxwell
(1931),32 S.R.(N.S.W.) 1 ("die without leaving lawful issue"); Re Fairburn's Will
(lSBO), 1 N.Z.L.R. 249, S.c.
TRUSTEES AND EXECUTORS
62. No devise to trustees or executors except, etc., shall pass a chattel
interest. 7 Wm. 4 & 1 Vic. c. 26 s. 30. Where any real estate shall
be devised to any trustee or executor such devise shall be construed to
pass the fee simple or other the whole estate or interest which the
testator had power to dispose of by will in such real estate unless a
definite term of years absolute or determinable or an estate of freehold
shall thereby be given to him expressly or by implication.
63. 'll'rustees under an unlimited devise, etc., to take the ft.'C. 7 Wm.
4 & 1 Vic. c. 26 s. 31. Where any real estate shall be devised to a
trustee without any express limitation of the estate to be taken by such
trustee and the beneficial interest in such real estate or in the surplus
rents and profits thereof shall not be given to any person for life or such
beneficial interest shall be given to any person for life but the purposes
of the trust may continue beyond the life of such person such dc:vise
shall be construed to vest in such trustee the fee simple or other the
whole legal estate which the testator had power to dispose of by will
in slIch real estate and not an estate determinable when the purposes
of the trust shall be satisfied.
This section does not apply where no trusts are created by the will, Re the IVill
oj Birkbeck (1873),3 S.C.R. 175.
The estate of tmstees was held to be expressly limited in Re the Will of
Birkbeck, supra.
This section does not mean that a devise to trustees and their heirs necessarily
gives them an estate in fee where their duties extend over successive life interests,
MacNamara v. MacNamara (1930), 30 S.R.(N.S.W.) 245.
LAPSE
64. Devises of estates tail shall not lapse. 7 Wm. 4 & 1 Vic. c. 26
s. 32. Where any person to whom any real estate shall be devised for
an estate tailor an estate in quasi entail shall die in the lifetime of the
testator leaving isslle who would be inheritahle under such entail and
any such issue shall be living at the time of the death of the testator
such devise shall not lapse but shall take effect as if the death of such
person had happened immediately after the death of the testator unless
a contrary intention shall appear by the will.
65. G:lts to children or other issue who leave issue living at the testator's
death shall not lapse. 7 Wm. 4 & 1 Vic. c. 26 s. 33. Where
any person being a child or other issue of the testator to whom any real
or personal estate shall be devised or bequeathed for any estate or
702
SUCCESSlON
Vol. 16
interest not determinable at or before the death of such person shall die
in the lifetime of the testator leaving issue and any such issue of such
person shall be living at the time of the death of the testator such devise
or bequest shall r.ot lapse but shall take effect as if the death of such
person had happened immediately after the death of the testator unless
a contrary intention shall appear by the will.
,,"-part from this ,ection, a devi,e or bequest lapses, i.e., fails if the devisee
or i~gatce dies in the testator's lifetime. See generally 48 English and Empire
Digest, (Rpl.), pp. 3&2 et seq.
Property saved from lapse by the section will pass, generally, by the will
of the "child or other issue" who dies before the testator just as if he had lived
to p(l,';CSS it, Johnson v. Johnson (1843), 3 Hare 157; Cameron v. Read (1887),
13 Y.L.R. 849. But if the d,.''. ise or bequest by the "'child or other issue" is made
to the original testatt'r himself, it fails, and the prop~rty devolves as if the
"chiI.J or other issue" had died intestate, Re Hellsler; JOlles v. Hensler (1881),
19 Ch. n. 612.
This section does not apply where the gift is to the issue of the testator as a
class, II! the Wii/ of Banks (1901), 20 N.Z.L.R. 436; Re Harvey's Fstate, [1893]
1 Ch. 567; i?e Hancock (1914),33 N.Z.L.R. 710; Hurst v. Hurst (1885), 12 Y.L.R.
93, nor docs it apply in favour of the isslle of a member of such class who is
specifically named, Re VJOlley, [1924J N.Z.L.R. 478. But see In llze Will of llaker,
[hOSj Y.L.R. 416, where named members of a class who had died were held not
to j; u.c1udcd from their interest in a remainder.
it does not apply to illegitimate issue of the testator even where he has
trcakJ ~uch issue as legitimate for purposes of the will, Re Wilkills, [1922] N.Z.L.R.
644.
The fact that the interest of a child was to be divested upon his death
before his youngest brother attained the age of twenty-one was held not to make
his int.;rest one determinable at or before his death, Davies v. National Trust!.'es
Execut:Jrs ana Agency Co., [1912] V.L.R. 397.
The rule that a gift to a person deceased at the time of the will is a nullity
should not be extended to prevent the operation of this section where death of a
bendiciary occurs between the making of the will and the making of a codicil
which refel's to such death. See Davies v. National Trustees Execu/ors and
Age",), Co., supra.
The testator may insert a provision in his will against the possibility of
iap"e, Ice Morris (1 ~ 16), 86 LJ. Ch. 456.
See also Bloomfield v. Silmmcrfidd (1876), 2 Y.L.R. (Eq.) 174, at p. In;
Re King (1932),32 S.R.(N.S.W.) 66~.
On the ambit of this section, set: Re Basioli; McGahey v. Depaoli, [1953] Ch.
367; l1953] 1 All E.R. 301.
For an example of lapse due to a void qualification see Re Tampol.lk, [1958]
3 All E.R. 479. The testator's will purported to make gifts to his grandchildren
on thdr respective marriages and provided that for the purposes of his will
'"tht: expression 'marry' sh:dl mean marry, according to the rites of the Jewish
faith, a person of Jewish race and religion and the word 'marriage' has a
cOiTesp:mdiilg meaning". Danckwerts, J., distinguishing Re Allen, [1952] 2 All
E.R, 8'18, and applying a dictum of Lord Romer in Clayton v. Ramsden, [1943]
1 All E.R. 16, at p. 22, decided that the gifts failed for uncertainty, since it was
impossible to gi\e sutlicient meaning tG the expression "Jewish race".
POWERS
66. Mnde of execution of powers. 22 & 23 Vic. c., 35 s. t 2. A deed
hereafter executed in the presence of and attested by two or more
witil;;sses in the manner in which deeds are ordinarily executed and
attested shall so far as respects the execution and attestation thereof be
a valid execution of a power of appointment by deed or by any instrument in writing not testamentary notwithstanding it shall have been
expressly required that a deed or instrument ill writing made in exercise
of;;uch power should be executed or attested with some additional or
other form of execution or attestation or solemnity
SL'ClESSION ACT Of 1867
5s.65-69
703
Provided always that this provision shall not operate to defeat any
direction in the instrument creating the power that the consent of any
particular person shall be necessary to a valid execution or that any act
shall be performed in order to give validity to any appointment having
no relation to the mode of executing and attesting the instrument and
1,othing herein contained shall prevent the do;;ee of a power fr,)m neeuling it conformably to the power by writing or otherwise ~h:lt1 by an
instrument executed and attested as all ordinary deed and to ar:y such
c.;ecution of a power this provision shall !lot extend.
As to execution of p'}wers of appointmer.t by will, sce s. 42.
F01' the manner in which a deed must be executed. sec 11 Halsbury's LiW' ('f
En,gland, 3rd cd., p. 343.
(}7. Sale under power not to be avoided by reason of mistakeH. payment
to tc{;ant fur life. 22 & 23 Vic. c. 35 s. 13. Where unu:.:r a pcwer
of sale a bona fidc sale Sh;lll be made or a:l estate wir1 thc timber
(hereo.} or any mher ar,icles attached there:o a;.d the L:na"t for
liCe or any other party to the tra;1sactioI1 shall by mistake be al !owed
to re;,:cive for his own bencflt a pOi'tion of the PlJ;'~:hase mon'.:y as (he
vuluc of the timber or other articles it shall be lawful for the' S,-Ji)renle
Court upon any bill or application in a summary way, as th~ case n1JY
requ,re or permit to d~clare that upon payment by the purcha:,er or
die ciaima;1t under him of the full value of the timber 2.nd articles at
the time of sale with such interest thereon as the court shall liirC'ct a - d
the settlement of the said pri;leipaI moneys and in teres: under the
direction of the court upon such parties as in the opi:,ion of the court
:;hall be entitled thereto the said sale ought to be established and u;'on
such payment and settlement being made accord;)".gly tbe court may
declare that the said saie is valid and thereupo:1 the legal es~ate shall
vest and go in like manner as if the power had been duiy executed a:.d
the costs of the said application as between solicitor a;\(1 cliei,t sh~'\l he
paid by the purchaser or the claimant under him.
As amended by Acts Citation Act of 1903, s. 10.
68. Devisee in. trus~ may raise muney b) sale Jw[withstallding w:mt
uf "xpfe~s power in the wHi. 22 & 23 Vic. c. 35 s. 14. Wi}ere by a:1Y
will which shall come into operatio:1 after the comme:1ccmcnt of this
Act the testator shall have charged his real estate or a:->y specific
portion thereof with the payments of his debts or with the payment of
any legacy or other specific sum of mOiiey and shall have devised
the cstate so charged to any trustee or trustees for the whole of his
estate or interest therein and shall not have made any express provisio'} for the raising of such debt legacy or sum of money out of such
estate it shall be lawful for the said devisee or devisees in trust not\?ithstanding ailY trusts actually declared by the testator to raise such
debts legacy or mOLcy as o.foresaid by a ~;ale and absolute clis;~ositio:1
by public auction or private contract of the said hereditaments 0; a;;y
part thereof or by a mortgage of the same nr partly in one mode and
!"artly in the other and any deed or de~ds of mortgage so executed may
reserve such rate of interest and fix such period or pcr:ods of rer:ayment as the person or persons executinf. the same shall thiflk proper.
69. Powers given by last section extended to s[l,vivors devisees, etc.
22 & 23 Vic. c. 35 s. 1 S. The powers cor.ferred by the last sectio!1
shall exteI'd to all and every person or persons in whom the estate
dcvi:;ed shall for the time being be vested by survivorship descent or
704
SUCCESSION
Vol. 16
devise or to any person or persons who may be appointed under any
power in the will or by the court to succeed to the trusteeship vested in
such devisee or devisees in trust as aforesaid.
As amended by Acts Citation Act of 1903, s. 10.
70. EXecutors to have power of raising money, etc., when there is no
sufficient devise. 22 & 23 Vic. c. 35 s. 16. If any testator who shall
have created such a charge as is described in the section next but one
preceding shall not have devised the hereditaments charged as aforesaid
in such terms as that his whole estate and interest therein shall become
vested in any trustee or trustees the executor (1[ executors for the time
being named in such will (if any) shall have the same or the like power
of raising the said monies as is hereinbefore vested in the devisee or
devisees in trust of the said hereditaments and such power shall from
time to time devolve to and become vested in the person or persons
(if any) in whom the executorship shall for the time being be vested
but any sale or mortgage under this Act shall operate only on the estate
and interest whether legal or equitable of the testator and shall not
r::"der it unnecessary to get in any outstanding subsisting legal estate.
As amended by Acts Citation Act of 1903, s. 10.
The power is not exercisable by an administrator with
Re Clay and Tetley (1880), 16 Ch. D. 3.
th~
will annexed,
7 L Purchasers, etc., not bound to inquire as to powers. 22 & 23 Vic.
c. 35 s. 17. Purchasers or mortgagees shall not be bound to inquire
whether the powers conferred by the three sections last preceding of
this Act or either of them shall have been duly and correctly exercised
by the person or persons acting in virtue thereof.
As amended by Acts Citation Act of 1903, s. 10.
72. Sections 69, 70 and 71 not to affect certain sales, etc., nor to extend
to devisees in fee or in tail. 22 & 23 Vic. c. 35 s. 18. The provisions
contained in the said three sections shall not in any way prejudice or
affect any sale or mortgage already made or hereafter to be made under
or ill pursuance of any will coming into operation before the commencement of this Act but the validity of any such sale or mortgage shall be
ascertained and determined in all respects as if this Act had not passed
and the said several sections shall not extend to a devise to any person or
persons in fee or in tailor for the testator's whole estate and interest
charged with debts or legacies nor shall they affeet the power of any
such devisee or devisees to sell or mortgage as he or they may by law
now do.
To exclude the
upon the death of
Contract, [1903] 1
number of persons
life with remainder
Penningtoll v. Payne
power of the executor the devise must operate immediately
the testator, Re Barrow-in-Furness Corpn. and Rawlinson's
Ch. 339, and must be either to a single person or to a
as joint tenants or tenants in common, ibid. A devise for
in fee does not exclude the executor's power, Re Wilson;
(1886), 54 L.T. 600.
USES
73. Provision for cases of future and contingent uses. 23 &. 24 Vic.
c. 38 s. 7. Where by any instrument any hereditaments have been or
shall be limited to uses all uses thereunder whether expressed or implied
by law and whether immediate or future or contingent or executory or to
be declared under any power therein contained shall take elTect when and
as they arise by foree of. and by relation to the estate a~d seisin .original~y
ve.,ted in the person seised to the uses and the contmued eXIstence m
SUCCESSION ACT OF 1867
ss.69-75
him or elsewhere of any selSln to uses or scintilla juris shall
deemed necessary for the support of or to give effect to future
tingent or executory uses nor shall any such seisin to uses or
juris be deemed to be suspended or to remain or to subsist in
elsewhere.
705
not be
or conscintilla
him or
For the effect of this section, see 32 Halsbury's Laws of England, 3rd ed.,
p. 225, note (k).
74. To what wills and estates this Act shall not extend.
7 Wm. 4
& 1 Vic. c. 26 s. 34. This Act shall not extend to any will made before
the first day of January one thousand eight hundred and forty and
every will re-executed or re-published or revived by any codicil shall
for the purposes of this Act be deemed to have been made at the time
at which the same shall be so re-executed re-published or revived and
this Act shall not extend to any estate pur autre vie of any person
who shall have died before the first day of January one thousand eight
hundred and forty.
As amended by Acts Citation Act of 1903, s. 10.
Sections 36 et seq., follow Wills Act, 1837 (7 Will. 4 & 1 Vic. c. 26) which
was adopted by the New South Wales Act 3 Vic. No.5 as from 1 January, 1840.
The Act 3 Vic. No.5 was repealed by Repealing Act of 1867 (31 Vic. No. 39), s. 2.
REMEDIES OF CREDITORS AGAINST REALTY
75. For remedying frauds committed on creditors by wills. 11 Geo.
4 & 1 Wm. 4 c. 47 s. 2. And whereas it is not reasonable or just
that by the practice or contrivance of any debtors their creditors should
be defrauded of their just debts and nevertheless it hath often so
happened that where several persons having by bonds covenants or
other specialties bound themselves and their heirs and have afterwards
died seized in fee simple of and in messuages lands tenements and
hereditaments or had power or authority to dispose of or charge the same
by their wills or testaments have to the defrauding of such their
creditors by their last wills or testaments devised the same or disposed
thereof in such manner as such creditors have lost their said debts for
remedying of which and for the maintenance of just and upright dealing
be it therefore further enacted That all wills and testamentary limitations dispositions or appointments already made by persons now in being
or hereafter to be made by any person or persons whomsoever of or
concerning any messuages lands tenements or hereditaments or any rent
profit term or charge out of the same whereof any person or persons
at the time of his her or their decease shall be seized in fee simple in
possession reversion or remainder or have power to dispose of the same
by his her or their last wills or testaments shall be deemed or taken (only
as against such person or persons bodies politic or corporate and his and
their heirs successors executors administrators and assigns and every
of them with whom the person or persons making any such wills or
testaments limitations dispositions or appointments shall have entered
into any bond covenant or other specialty binding his her or their heirs)
to be fraudulent and clearly absolutely and utterly void frustrate and
of none effect any pretence colour feigned or presumed consideration or
any other matter or thing to the contrary notwithstanding.
The words "or have power to dispose of" extend to estates pilI' autre vie.
Wcst/alillg v. West/a/ing (1746), 3 Atk. 460, and every beneficial interest, Coope v.
Cresswcll (1866), L.R. 2 Ch. 112.
See now Specialty and Simpk Contract Debts Equalisation Act (1871), p. 664,
an/c.
706
SUCCESSION
Yolo 16
76. Enabling creditms to recover upon bonds, etc. 11 Geo. 4 &
I Wm. 4 c. 47 s. 3. And for the means that such creditors may be
enabled to recover upon such bonds covenants and other specialties be
it further enacted That in the cases before mentioned every such creditor
shall and may have and maintain his her ai:c\ their action and actions
of debt or covenant upon the said bonds covenants and spccialties
against the heir and heirs at law of such obligor or obligors covenantor
or covel:antors and such devisee and devisees or the devisee or devisees
of such firstmentioncd devisee or devisees jointly by virtue of t;lis Act
and such devisee and devisees shall be liable and chargeable fl)r a false
plea by him or them pleaded in the same manner as any heir should have
been for any false p~ea by him pleaded or for i;ot COllfcssing the lands or
tenements to him descended.
Lands descending to the heir had to be applied before resort to those
specifically devised, Chap/in v. Chaplin (1735), 3 P. Wms. 365; and sec POl".'is v.
Corbet (1747),3 Atk. 556; and d. Re Balls, [1909]1 Ch. 791.
Sec now Specialty and Simple Contract Debts Equalisation Act (1871), p. 66'+.
ante.
77. If there is no heir at law actions may be maintained against the
devisee. 11 Geo. 4 & 1 Wm. 4 c. 47 s. 4. If in any case there shall
not be any heir at law against whom jointly with the devisee or devisees
a remedy is hereby given in every such case every creditor to whom
by this Act relief is so given shall and may have and maintain his her
and their action aLd actions of debt or coveLant as the case may be
against such devisee or devisees solely and such devisec or devisees shall
be liable for false plea as aforesaid.
78. Not to affect limitations for just debts or portions for children.
11 GeD. 4 &: I Wm. 4 c. 47 s. 5. Provided that where there hath
been or shall be any limitation or appointment devise or disposition of or
concerning any messuages lands tenements or hereditaments for the
raising or payme:1t of any rcal and just debt or debts or any portion or
portions sum or sums of money for any child or children of any person
according to or in pursuance of any marriage contract or agreement in
writing bona fide made before such marriage the same and every of th2m
shall he in full force and the same messuages la"ds tenements and hereditaments shall and may be holden and enjoyed by every such person or
persons his her and their heirs executors administrators and assigns for
whom the said limitation appointment devise or disposition was made
and by his her and their trustee or trustees his her and their heirs
executors administrators and assigns for such estate or interest as shall
be so limited or appointed devised or disposed until such debt or debts
portion or portions shall be raised paid and satisfied anything in this
Act contained to the contrary notwithstanding.
Sec Plunket v. Penson (1742),2 Atk. 290.
79. Heir at law to be answerable for debts although he may sell
estate before action brought. 11 Geo. 4 & 1 Wm. 4 c. 47 s. 6. In
all cases where any heir at law shall be liable to pay the debts or
perform the covenants of his ancestors in regard of any lands tenements
or hereditaments descended to hi1i1 ~l';d shall sell alieil or make over
the same before any ac';cn hrol1~ht or process sued out against him such
heir at law shall he answerable for such debt or debts or covenants in
an action or actions of debt or covenant to the value of the said lands
so by him scJd c:lie:lCd or made over in which CGses all creditors shall be
SUCCESSION ACT OF I R67
ss.76-82
707
preferred as in actions against executors and administrators and such
execution shall be taken out upon any judgment or judgments so
obtained against such heir to the value of the said lands as if the same
were his own proper debt or debts saving that the lands tenements and
hereditaments bona fide aliened before the action brought shall not be
liable to such execution.
As to liability of devisees, see s. 81.
As to "heir at law", see now Intestacy Act of 1877, s. 27, p. 637, ante.
At common law ,md under this and previous statutes the heir or devisee was
personally liable, but the assets were not charged, Spackman v. Timbrel! (1837),
R Sim. 253. See now Specialty and Simple Contract Debts Equalisation Act
(1871), p. 664, ante.
The saving with respect to lands aliened before action brought extends to
devises, so that a bona fide alienation by the devisee is protected whether the
interest aliened be legal or equitable, Re Atkinsoll, [19081 2 Ch. 307.
80. Where an action of debt is brought agail.st the heir he may plead
riens per descent. 11 Geo. 4 & 1 Wm. 4 c. 47 s. 7. Provided that
where any action of debt or covenant upon any specialty is brought
against the heir he may plead riens per descent at the time of the
original writ brought or the bill filed against him anything herein
contained to the contrary notwithstanding and the plaintiff in such
action may reply that he had lands tenements or hereditaments from his
ancestors before the original writ brought or bill filed and if upon the
issue joined thereupon it be found for the plaintiff the jury shall inquire
of the value of the lands tenements or hereditaments so descended and
thereupon judgment shall be given and execution shall be awarded as
aforesaid but if judgment be given against such heir by confession of
the action without confessing the assets descended or upon demurrer or
nihil dicit it shall be for the debts and damage without any writ to
inquire of the lands tenements or hereditaments so descended.
81. Devisees to be liable the same as heirs at law. 11 Geo. 4 & 1
Wm. 4 c. 47 s. 8. Provided thz,t all and every the devisee and devisees
made liable by this Act shall be liable and chargeable in the same
manner as the heir at law by force of this Act notwithstanding the
lands tenements and hereditaments to him or them devised shall be
aliened before the action brought.
82. Traders' estates shaH be assets to be administered in courts of
equity. 11 Geo. 4 & 1 Wm. 4 c. 47 s. 9. From and after the fourth
day of August one thousand eight hundred and thirty-four where any
person being at the time of his death a trader within the true intent
and meaning of the laws relating to bankrupts shall have died seized
of or entitled to any estate or interest in lands tenements or hereditaments or other real estate which he shall not by his last will have charged
with or devised subject to or for the payment of his debts and which
wo"J1d be assets for the payment of his debts due on any specialty in
which the heirs were bound the same shall be assets to be administered
in courts of equity for the payment of all the ju~t debts of such person
as well debts due on simple contract as on specialty a"d the heir or
heirs at law devisee or devisees of such debtor and the devisee or devisees
of such first-mentioned devisee or devisees shall be liable to all the same
suits in equity at the suit of a::y of the creditors of such debtor whether
creditors by simple contract or by specialty as they are liable to at the
suit of creditors by specialty in which the heirs were bound
708
SUCCESSION
Vol. 16
Creditors by specialty to be paid first. Provided always that in the
administration of assets by courts of equity under and by virtue of
this provision all creditors by specialty in which the heirs are bound
shall be paid the full amount of the debts due to them before any of the
creditors by simple contract or by specialty in which the heirs are not
bound shall be paid any part of their demands.
As to the proviso, see now Specialty and Simple Contract Debts Equalisation
Act (1871), p. 664, anII'.
83. Parol shall not demur by or against infants. 11 Geo. 4 & 1
Wm. 4 c. 47 s. 10. From and after the day and year last aforesaid
where any action suit or other proceeding for the payment of debts or
any other purpose shall be or have been commenced or prosecuted by
or against any infant under the age of twenty years either alone or
together with any other person or persons the parol shall not demur
but such action suit or other proceeding shall be prosecuted and carried
on in the same manner and as effectually as any action or suit could
before the passing of this Act be carried on or prosecuted by or against
any infant where according to law the parol did not demur.
84. Infants to make conveyances under order of the court. 11 Geo.
4 & 1 Wm. 4 c. 47 s. 11. Where any suit hath been or shall be
instituted in any court of equity for the payment of any debts of any
person or persons deceased to which their heir or heirs devisee or
devisees may be subject or liable and such court of equity shall decree
the estates liable to such debts or any of them to be sold for satisfaction
of such debt or debts and by reason of the infancy of any such heir
or heirs devisee or devisees an immediate conveyance thereof cannot
as the law at present stands be compelled in every such case such court
shall direct and if necessary compel such infant or infants to convey
such estate so to be sold (by all proper assurances in the law) to the
purchaser or purchasers thereof and in such manner as the said court
shall think proper and direct and every such infant shall make such
conveyance accordingly and every such conveyance shall be as valid
and effectual to all intents and purposes as if such person or persons
being an infant or infants was or were at the time of executing the
same of the full age of twenty-one years.
As amended by Acts Citation Act of 1903, s. 10.
85. Persons having a life interest may convey the fee simple if the
estate is ordered to be sold. 11 Geo. 4 & 1 Wm. 4 c. 47 s. 12. Where
any lands tenements or hereditaments have been or shall be devised
in settlement by any person or persons whose estate under this Act
or by law or by his or their will or wills shall be liable to payment of
any of his or their debts and by such devise shall be vested in any
person or persons for life or other limited interest with any remainder
limitation or gift over which may not be vested or may be vested in
some person or persons from whom a conveyance or other assurance of
the same cannot be obtained or by way of executory devise and a decree
shall be made for the sale thereof for the payment of such debts or any
of them it shall be lawful for the court by whom such decree shall be
made to direct any such tenant for life or other person having a limited
interest or the first executory devisee thereof to convey release assign
surrender or otherwise assure the fee simple or other the whole interest
or interests so to be sold to the purchaser or purchasers or in such
SUCCESSION ACT OF 1867
88.82-88
709
manner as the court shall think proper and every such conveyance
release surrender assignment or other assurance shall be as effectual as
if the person who shall make and execute the same were seized or
possessed of the fee simple or other whole estate so to be sold.
As amended by Acts Citation Act of 1903, s. 10.
Sec also s. 88.
86. Courts of equity authorised to direct mortgages as well as sales.
2 & 3 Vic. c. 60. 'The two sections last preceding shall extend and the
same are hereby extended to authorise courts of equity to direct mortgages as well as sales to be made of the estates of such infant heirs or
devisees as are referred to in the said section last but one preceding and
also of lands tenements or hereditaments devised in settlement as
mentioned in the said last preceding section and to authorise such sales
and mortgages to be made in cases where the tenant for life or other
person having a limited interest or the first executory devisee as hereinbefore referred to is an infant.
87. Surplus of money ra!sed by sale or mortgage after defraying expenses
to descend or devolve as the estate. 2 & 3 Vic. c. 60. When any
such sale or mortgage shall be made the surplus (if any) of the money
raised by such sale or mortgage which shall remain after answering the purposes for which the same shall have been raised and defraying
all legal costs and expenses shall be considered in all respects of the
same nature and descend or devolve in the same manner as the estate
or the lands tenements or hereditaments so sold or mortgaged and shall
belong to the same persons be subject to the same limitations and
provisions and be applicable to the same purposes as such estate or such
lands tenements or hereditaments would have belonged and been subject
and applicable to in case no such sale or mortgage had been made.
88. Provisions extended to lands, etc., of deceased debtor in certain
cases. 11 & 12 Vic. c. 87. In cases in other respects falling within the
provisions of the two sections last but two preceding the section last
but two preceding shall extend and is hereby extended to any case in
which any lands tenements or hereditaments of any deceased person
shall by descent or otherwise than by devise be vested in the heir or
co-heirs of such person subject to an executory devise over in favor
of a person or persons not existing or not ascertained and in any such
case it shall be lawful for the court by whom any decree shaH be made
as mentioned to direct such heir or co-heirs although an infant or
infants to convey release assign surrender or otherwise assure the fee
simple or other the whole interest to be sold to the purchaser or
purchasers or as such court shall think proper and every such conveyance
release assignment surrender or other assurance shall be as effectual as if
the heir or co-heirs making and executing the same was or were seized
or possessed of the fee simple or other whole interest and estate so to be
sold and if an infant or infants was or were of full age.
PART V-FAMILY PROVISION
Heading inserted by Act of 1968, No.8, s. 12.
The Testator's Family Maintenance Acts, 1914 to 1952
to apply to the estates of persons dying before 16 April 1968.
Amendment Act of 1968, s. 11, p. 731, post.
The nature of legislation of this kind and how it should
light of the principles of international law were discussed in
S.R.(N.S.W.) l.
(repealed) continue
See Succession Acts
be regarded in the
Re Perkins, [1958]
710
SUCCESSION
Vol. 16
89. Meaning of terms. In this Part unless the context otherwise indicates
or requires the following terms shall have the meanings respectively
assigned to them that is to say:"Adopted child"-in relation to any person, a child that is adopted
by such person or by such person and his spouse jointly,
in accordance with the law of the State, Territory or country
where the adoption takes place as in force at the date of
the adoption;
"Child"-in relation to any person, any legitimate, illegitimate
or legitimised child, stepchild or adopted child of that person;
"Courf'-the Supreme Court of Queensland or any Judge thereof;
"Personal representative"-any person to whom probate has or
letters of administration have been granted, or who is entitled
by virtue of any other administration or under any statutory
power to administer or take charge of any property of a
deceased person;
"Stepchild"-in relation to any person, a child by a former
marriage of that person's husband or wife;
"\Vife"-includes a woman who has been divorced whether before
on or after the passing of "The Succession Acts Amendment
Act of 1968" by or from her husband if she has not remarried
before the time of his death and if she is at the time of his
death receiving or entitled to receive maintenance from
him.
InsCI1ed by Act of 196R, No.8, s. 12.
Act referred to:
Succession Act Amendment Act of 1968, p. 731, post.
For the Queensland law relating to adoption, see Adoption of Children Acts,
I9(,.j. tll 1967, 1964 Annual Volume, p. 551.
An adoption order, whereby a stepchild was adopted by her paternal grandparent;, was held to deprive the child of capacity to make an application under
th'~ Tc\tator's Family Maintenance Acts for provision out of the estate of her
stepm(}th~r, Rc Nielsen, deceased, [1968] Qd. R. 221.
The Step relationship which exists between a child and the wife of the child's
father does not cease on the death of the father, nor, semble, on the re-marriage of
the widow. See Re Nielsen, deceased, [19681 Qd. R. 221, following Re Trackson,
deceased, [1967] Qd. R. 124.
90. Estate of deceased person liable for maintenance.
( 1 ) If any
person (hereinafter called "the deceased person") dies whether testate
or intestate and in terms of the will or as a result of the intestacy
adequate provision is not made from the estate for the proper maintenance
and support of the deceased person's wife, husband, or child, the Court
may, in its discretion, on application by or on behalf of the said wife,
hucsband, or child, order that such provision as the Court thinks fit
shall be made out of the estate of the deceased person for such wife,
hu~band, or child:
Provided that the Court before making an order in respect of an
ille<c:itimate child of a deceased person shall satisfy itself that the evidence
sub~mitted to it on behalf of such child is reasonably sufficient to establish
that such child is the offspring of the deceased person.
(2) The Court may(a) attach such conditions to t11;:: order as it tl1i;lks fit; or
SUCCESSION ACT OF I F67
ss. 89, 90
711
(b) if it thinks fit, by the order direct that the provision shall
consist of a lump sum or a periodical or other payment; or
(c) refuse to make an order in favour of any person whose
character or conduct is such as, in the opinion of the Court.
diselltitles him or her to the benefit of an order, or whose
circumstances are such as make such refusal reasonable.
(3) The incidence of the payment or payments ordered shall, unless
the Court otherwise directs, fall rateably upo!"; the whole estate of the
deceascd rCTson, or, in cases where the authority of the Court does not
c;:ter:d or cannot directly or i:ldirectly be made to extend to the whole
estate, then to so much thereof as is situated in Queensland.
(4) The Court may, by such order or any subsequent order, exoncrate
allY part of the estate of the deceased person from the incidc!;ce of
the order, after hearing such of the parties as may be affected by such
exo:1eration as it thinks necessary, and may for that purpose direct the
persoE<l1 representative to represent, or appoint any person to represent,
any SUCi1 narty.
( 5) The Court may at any time fix a periodic payment or lump sum
to be pa;d by any beneficiary in the estate, to represent, or in commutation
of, ~ucb proportiOll or the sum ordered to be paId as falls upon the portion
of the estate in which he is interested, and exonerate such portion from
further liability, and direct in what manner such periodic payment shall
be secured, and to whom such lump sum shall be paid, and in what
ma;1!1C( it shall be invested for the benc1it of the person to whom the
commuted payme:-It was payable.
(G) Where c:n application has been filed on behalf of any person it
may be treated by thc Court as, and, so far as regards the question of
lim:t"tioil, shall be deemed to be, an application on behalf of all rersons
who might apply.
(7) The personal representative or The Public Curator of Queensland
or the Director of Children's Services, or any person acting as the next
friend of any infant or any mentally ill person, may apply on behalf
of any person being an infant, or being mentally ill in any case where
such person might apply, or may apply to the Court for advice or
directims as to whether he ought so to apply; and, in the latter case, the
Court rr;.ay treat such application as an application on behalf of such
person for the purpose of avoiding the effect of limitation.
(R) U:1less the Court otherwise directs, no application shall be
heard by the Court at the instance of a party claiming the benefit of this
Part un1css the proceedings for such application be instituted within six
months from the date of the grant in Queensland of probate of the will
or letters of administration of the estate of the deceased person or, in the
case of an estate being administered by the Public Curator of Queensland,
the date of the grant of the Order to Administer or the filing of an Election
to Administer such estate.
(9) Upon any order being made, the portion of the est~lte comrris~d
there:n or affected thereby shall be held subject to the provisions of the
order.
(10) No mortgage, charge, or assignment of any kind whatsoever
of or over such provision, made before the order is made, shall be of any
force, validity, or effect; and no such mortgage, charge, or assignment
712
SUCCESSION
Vol. 16
made after the order is made shall be of any force, validity, or effect
unless made with the permission of the Court.
Inserted by Act of 1968, No.8, s. 12.
This Act is remedial in character and must be construed so as to give the
most complete remedy the language will permit, Holmes v. Permanellt Trustee Co.
(1931),47 C.L.R. 113.
Jurisdiction and powers of the court. The court has no jurisdiction unless
either the testator was domiciled within the jurisdiction or left real estate within
th~ jurisdiction or the court has granted probate of his will. See Pain v. Hall
(1919), 19 S.R.(N.S.W.) 105; Re Found, [1924] S.A.S.R. 236; Re Butchart, [1931]
N.Z.G.L.R. 498. Where a testator domiciled in the jurisdiction at the date of his
death left assets within the jurisdiction and personalty outside the jurisdiction, the
court may deal with the whole estate of the testator, Re Sellar (1<)25),
25 S. R. (N.S.W.) 540.
The court cannot make an order directly or indirectly
extending to real estate out of the jurisdiction, Re Osborne, [1928] St. R. Qd. 129,
or to mortgage moneys secured on real estate out of the jurisdiction, Re Donllelly
(1927),27 S.IUN.S.W.) 34.
It has been held by the Supreme Court of New Zealand that shares in a
New Zealand company owned by a testator who at the time of his death was not
domiciled in that country are not assets which can be disposed of by an order
under the Family Protection Act, Re Terry; Terry v. Guardian Trust and Execlltors
Co. Ltd., [1951] N.Z.L.R. 30.
QUII're whether the couli would have power to make an order under this
section where the testator was not domiciled in Queensland. Compare Mastaka v.
Midland Bank Exccutor alld Trustee Co. Ltd., [1941] 1 Ch. 192; [1941] 1 All
E.R.236.
The court has no power to make an order respecting property of which
the deceased has disposed in his lifetime, Thomson v. Thomson, [1933] N.Z.L.R.
5; Macpherson v. Maund (1937), 58 C.L.R. 341, at p. 347. It appears that the
couli has no jurisdiction to order that portion of the assets of the estate be
transferred to the applicant. See III the Will oj lIughes, [1930] St. R. Qd. 329;
Piimmer v. Plimmer (1906), 9 N.Z.G.L.R. 10.
In Re Archibald, [1950] Q.W.N. 2, Stanley, J., held that the court has no
juri,diction under this legislation to write a new will in terms of an agreement
by all the children of the testator to divide the estate, even though the widow
agrees that the excluded children should receive some share.
The benefits of the Act are available to persons resident out of Queensland.
See Graham's Supreme Court Practice, Part II, p. 195, and the unrepol1ed cases
there referred to; Re Donnelly (1927), 27 S.R.(N.S.W.) 34. Separation of
husband and wife is no bar to an application, In the Will oj O'Connor, [1931]
Q.W.N. 39; Rl' Wright, 6 April, 1918, referred to in Graham's Supreme Court
Practice, Part II, p. 196; Re Foulld, [1924] S.A.S.R. 236; Re Williams, [1933]
S.A.S.R. 107. But where a wife has left her husband in circumstances which would
have disentitled her to an order for maintenance or entitled him to a decree for
restitutio:], see Re Villes, [1939] St. R. Qd. 68; Re Parr (1929), 29 S.R.(N.S.W.) 10.
A consent decree for judicial separation, ordering that that applicant should not
at any time thereafter make any claim for alimony or maintenance, is not a bar
to an application, Re Howard (1925), 25 S.R.(N.S.W.) 189. See also Re Patrick
(1936), 36 S.R.(N.S.W.) 156; Rc Found, [1924] S.A.S.R. 236, where deeds
releasing rights were construed not to extend to claims under this Act.
Subsection (1) of this section does not restrict the power of the court to
redistribute the estate, even where the provisions of the will are a fulfilment of a
contract made inter 1'i\'os: the contract cannot oust the jurisdiction. See Dillon v.
['ublic Trltstee oj New Zealand, [1941] A.C. 294 (reversing the Court of Appeal
of New Zealand, [1939] N.Z.L.R. 550), where the Privy Council stated matters to be
c,)nsidercd by the court in exercising its discretion.
It has been held that a daughter'S attempt to contract herself out of this Act
was no bar to her application, Rc Willert, [1937] Q.W.N. 35, following and
anplv[,lg Gardincr v. Boag, [1923] N.Z.L.R. 739; Parish v. Parish, [1924] N.Z.L.R.
307;' ~lnrl Rc ['earsoll, [1936] V.L.R. 355. Similarly in Re HatIL', [1943] SI. R. Qd. 1.
the Full Court of Queensland, following Hooker v. Guardian Trust and Ey('cutors
Co. oj New Zealand, 119271 N.Z.G.L.R. 536, and distinguishing Re J)oogall
(1923), 23 S.R.(N.S.W.) 485, held that a compromise made by a married son
di J nDt dcb:H him from prosecuting his claim. So also in Re iacoh Morris (1943),
SUCCESSION ACT OF 1867
s. 90
713
43 S.R.(N.S.W.) 352, the Full Court of New South Wales held that the execution
of a deed by which the widow had covenanted not to make any claim under the
Act against the testator's estate did not preclude her from making or the court
from entertaining her application. So too in Lieberman v. Morris (1944),
69 C.L.R. 69, where the wife had similarly covenanted, the High Court,
distinguishing Davies v. Davies (1919), 26 C.L.R. 348, and affirming the decision
of the Supreme COllrt of New South Wales, held that such a covenant was void.
As to whether there is power to contract out of the Act, see Parish v. Parish,
[1924] N.Z.L.R. 307; Re Doogan (1923), 24 S.R.(N.S.W.) 484; Re Pearson,
[1936] V.L.R. 355.
As to whether there is power to make orders from time to time, see Re
Breen, [1933] V.L.R. 455. See, however, s. 91.
As to the meaning of "provision", see Re Harris, [1936] S.A.S.R. 497, where
Clctand, J., laid down what are proper circumstances to be taken into account
in considering what is adequate provision for the testator's widow.
See also
Re Shelley; Shelley v. Public Trustee, [1937] N.Z.L.R. 342, where the Full Court held
that the word is wide enough to empower a judge to make an order embodying
an illl:!rim agreement by the parties (all being sui juris), with liberty to apply,
or, alternately, wide enough to include orders by consent with liberty to apply
for review, there being contained in such orders an express or implied agreement
that, should the parties not agree upon the terms of a further or final order,
the Court in making the further or final order may have regard to events subsequent
t,) the death of the testator. On the other hand, the Full Court of Victoria has held
that the task allotted to the court by this legislation calls for a determination
once and for all.
In performing that task the court will take into account,
as best it can, future probabilities. There cannot be recurrent applications, fnr
the estate must be distributed. To postpone indefinitely a final determination after
the rdevant facts are known really involves a refusal to carry out its duty.
S':c i{(' Butler, [1948] V.L.R. 434, at p. 435. 55 A.L.R. 593, at p. 594, and Re
Porteous, [1949] V.L.R. 383 at p. 387, both following the ruling of Mann, A.C.L,
in Ri! Breen, [1933J V.L.R. 455 at p. 456; 39 A.L.R. 500, at p. 501. See however
Re /Jorthwick, [1949] 1 Ch. 395 at pp. 402, 403; [1948] 2 All E.R. 179, 635.
See, however, s. 91.
Qu(ue whether under this legislation the court has power to order provision
to be made as from a future date, e.g. for an infant who, though not requiring
any immediate provision, would require some provision later. Contrast Re Franks;
Franks v. Franks, [1948] 1 Ch. 62; [1947] 2 All E.R. 638.
In Re K. Piper, deceased (1960), 77 W.N.(N.S.W.) 197 it was held that
there was no power under the Testator's Family Maintenance and Guardianship
of Infants Act 1916-1954 (N.S.W.) for the court to order temporarily a limited
provision only, but an order so made was not a nullity.
Semble the power of the court under this Act is not confined to making an
order for monetary payments. See Re Radburn, [1941] V.L.R. 91; [1941] A.L.R.
79, where O'Bryan, J., made an order giving the applicant widow a life interest
in the testator's real estate. In Re Lenchan (1950), 50 S.R.(N.S.W.) 318, Roper,
C.J. in Eq., holding that, because of the ademption of a devise by the testatrix
the husband had been left without adequate provision for his proper maintenance,
he should have the right to occupy the matrimonial home for life.
Once the estate of the testator has been fully distributed, there is no estate
in respect of which provision can be made in favour of an applicant. See Re
Donkin, deceased [1966] Qd. R. 96.
"Adequate provision for proper maintenance and support".-There is no
jurisdiction unless the wife or husband or children are left without adequate
provision for their proper maintenance and support, Bosch v. Perpetual Trustee
Co. l.td., [1938] A.c. 477. An applicant must show that he or she is in need
of maintenance and that there was a moral duty on the testator to provide it,
Re Chapman, [191R] St. R. Qd. 226; [1918] Q.W.N. 44; l\!cGrath v. Quecllslalld
TrlLlt("CS LId., [1919] St. R. Qd. 169; [1919J Q.W.N. 34; Re K., [1921] St. R. Qd.
172; Re Hofncr, [19251 St. R. Qd. 232; [1925] Q.W.N. 27. "It is the duty of the
Court, so far as is possible, to place itself in all respects in the position of the
testator, and to consider whether or not, having regard to all existing facts and
smrounding circumstances, the testator has been guilty of a manifest breach
of that moral duty which a just, but not a ioving, husband or father owes towards
his wife or towards his children, as the case may be. If the COlift finds that
the kst:ltor has been plainly gui:tj' Gf a breach of such menal duty, then it i,
714
SUCCESSiON
'i/of. 16
!ile: (iuty of the Court to make such an order as appears to be sufficient, but no
more than sufficie.1t, to repair it." Re Aiiardice (1909),29 N.Z.L.R. 959, at p. 972;
l1911] A.C. 730.
For considerations that should guide a judge in dealing with applications
for provi,ion ,'ut of the estate, see Re Duncan, l1939] V.L.R. 355. The judg,,'s
di,crctioa to make such provisions is not limited to cases in which there ha.s been
;1 capricious or unreasonclbic testamentary disposition, Rc vVhitfidd, [1937j V.L.R.
207: 43 A.L.R. 392.
An <lpplicant must satisfy the court that the testator has failed in a moral
duty, Re Greell; Zukerm({11 v. Public Trl/l"/ee, (1<)51J N.Z.L.R. ]35 (c.A.). lhe
question whether the testator has failed in tllat duty is to be determined upon
t!"ie circumc.tances existing at the date of his de"th, including circumstances which
CQuid reasonably bc foreseen at that time, He Brown, [1952J St. R. Qd. 47.
Oit p. 51. folitlwing and applying die/um of Salmond, 1., in Welsh v. Mu/cock, [192 J;j
N.Z.G.LR. 169, at p. In.
Sec also Rc TCltator's Famiiy M"itltenartce Ac:s
(1916). 12 Tas. LR. 11; Dun v. DUll, [19591 2 All ER. 134. Thc court wii:
pay "tte nlinn to the opi:1ion of the teslator, who may safely he p;esnmed tc,
havc kllOWIl the weight of the applicant's mo;-;!l claim on him, Rc HUlla, [194,,1
V.LR. 434. See also Rc Duncan, [I <)39] V.LR. 355 (noted among appiicatiens
rcfused, ill/ra). Th<: English legislation-the InheriLmcc (Family P1 ('vi~ion) Act.
I Si3H··-cxprcssly rcquires the court to h:lvC regard to tllC testator's reaso·;s for
his dispositions cr for his failure to make provision for a depend;L~lL
On the
nature of t!le cvicknce SC) receivable sec Re Vrill:, [1')40; eh. 920; 56 T.LR. 953;
11940] 3 All E.l<.. 470, and /?c Sma/il"ood; Sma'llI'uod v. Marti"s Barlk LtJ,
ll')~IJ lb. 36';; [1951] I T.L.R. 331; [1951] 1 Ali E.R. 372.
But" t"sbt",'s
men: allegation ;\s a reason for e\cluding a child from his b,'unty ~hould not
be ;icccpted as precluding tlie ma~ing nf a'l or,;"r merely bccausc th(; applica:'t
fai;s t:) cst:,tb:ish t:l.al the allegation is falSe, Rc Grecn; Lukcnnofl \. Pu.blk TrlL~j{'(',
supra.
SembiI', where the testator has given re<:S()l1S for maki,lg the dispo.~itions
that he h:!,; m:tJe in his wil!, the COllrt may admit evidence directed to shewing
that he had other reasons for not making provision for the applicant. Comp:lre Re
Searl,'; Swrie v. Sioll\", [194911 eh. 73; [1')48J 2 All E.R. 426. which howe,cr was
decided 0;1 the construction ('f a st;ltlltory provision that has n(' expre~s cOLJnte,pa:t
in this legislation. Evidence of the tcstatcr"s reasons for excluding an applicant
is admissiblc, not to prmc the truth of the facts which he has allegd, hut te>
shol\' ci: c[;m,t:mccs that e:til fur an explanation f:'om the applic:ll:t, RI' Paulin,
[1950] V.LR. 462 at p. 473; 57 A.L.R . .:"03. where Sh(,;: . .I., -leah with the OflllS
of proof.
As for the prorcr cuurs:.; to be adopted where the testator has left a leltc,
to be handed to the illl'ge, in anticipation of proceedings under this Act, see
{((' lVi/SOli; Hclso:J v. Pulilic TrustN', [1<)43J N.l.L.R. 224.
The p~riod of timc to be considered in determining whether the applicant has
been left without adequate provision for his or 11cr maintenance is the date of
the death of the testator, whereas the period of time to be considered in detei'mini'lg
whal order shoule! he made is the date of the hearing of the application. &\ held hy
},lcLelland, 1., in Re Larkin, (1957] S.R.(N.S.W.) 369.
In determining whether af' applicant is left without sllfficient means of support,
regard will be had to the position of the applicant during tcstator's lifetime
and the extent of the testator's estate, III the Wi!! of Read, (1910] V.L.R. 68.
The court will net interfere merely because it may consider that the testator mi!::ht
have disposed of his property more beneficially, III tiz" Will of Read, [1910J V.CR.
(,R, or that the will is unjust from a moral point of view, Bosciz v. Perpetual Trustee
Co. Ud., (/9381 A.C. 477.
Thc ollestion of wh:!t amounts to a,lequZlte provision for the maintenance
of the wid'ow may turn to some cxtent on her circumstances and style of livin:'..
but also on the circumsta'1ccs and position of the testatOl·~j.e.: whether he v.as a
rich mr.n or a ponr man-as in Re Borthwick; B(),'·t!mick v. lJC{l/l\'ais, [1949] 1 Ch.
31)5 at p. 401; (1949J I All E.R. 472, ::t p. 475, \\hcrc Harman, J., increased
th~ i;lCOT1lC of the widow tllIla'lte dduitatc from .£250 to £1.000 a yCGr. the te<,tatc[
(tho:,,"h living in :lt1h!'~nce \ having kept kr in pel]l!~y.
"Maintenance" mC!l;l~ not only the fo,.'d th!lt a widnv puts int(J her mouth.
bl1t <L')~~ the clothes (~:1 !~er back, the hnl1S~ in which she lives, ar.d the money
that ~;:~C has to b:,vc i'l her pucket, Re Borthwick, S.I!!i'{" !;t p. 401.
SUCCESSION ACT OF 1867
s.90
715
As to when an order will be made in favour of an adult capable of earning
his or her own living, see In the WiU of Jolli/Je, [1929] St. R. Qd. 189; Re Grant,
[1938] St. R. Qd. 323; Re Testator's Family Maintcnance Acts, (1916), 12 Tas.
L.R. 11; Re Hallahan (1918), 18 S.R.(N.S.W.) 138; Re Fuller (1917), 17
S.R.(N.S.W.) 348.
An applicant need not necessarily have been dependent on the testator
prior to his death, Re Baxter, 28 November, 1919, referred to in Graham's
Supreme Court Pn,c:tice, Part II, p. 198; Re Wright, 6 April, 1918, referred to
ibid.
As tz.> when a person is without ~umdsnt provision for maintenance and
support, see also Re McGoun, [1910] V.L.R. 153; In the Wiil of Roberts, [19191
V.L.R. 125; Re Pearson, [1936] V.L.R. 355; Re Phi/Ups (1929), 29 S.R.(N.S.W.J
Lil; Glasgow v. Glasgow (1911), 13 N.Z.G.L.R. 647; Plank v. Plank (1913),
32 N.Z.LR. 898; Green v. Green (1913), 33 N.Z.L.R. 81; Golightly v. Jefcoate
(1913), 33 N.Z.L.R. 91; E. v. E. (1915),34 N.Z.L.R. 7l->5; Re Richardson's Estatl!
(1934), 29 Tas. L.R. 149.
"Such provision as the Court thinks fit".-The allowance to be made is not
limibJ [Q mere maintenance, Ahearn v. Ahearn, [1917J St. R. Qd. 167; [1917J
Q.W.N. 24; Re Hcagcrly (1915), 34 N.Z.L.R. 905; III the Will of Hughes [1930]
S1. R. Qd. 32~; Bosch v. Perpetual Trustee Co. Ltd., [1938] A.C. 477; In the Will
of !<ca:1, [1910J V.L.R. 68.
But the testator's dispositions can be interfered
with so far only as is necessary to provide for proper maintenance and support;
the court ca;l11ot make a new will for the testator, A liard ice v. A liard ice (1909),
29 N.Z.LR. 959; [1911] A.C. 730; Ahearn v. Ahearn, supra; Re Chapman, [1918]
5t. R. Qd. 226; [1918] Q.W.N. 44; Re K., [1921] St R. Qd. 172. It is not the
function of the court to make an equitable distribution of the whole estate, but
merely to see that the moral obligations of the deceased to the claimants are
discharged, Re McCreedy, [1938] St. R. Qd. 293.
\Vh~re t'le estate is sufficient to meet all moral claims, dependents of the
testaLJr are entitled to such amount as will allow of their maintenance and
upbringing in such a state of life as is appropriate to dependents of the testator,
Re Allen, [1922] N.Z.L.R. 218, approved in Re Just, [1938] St. R. Qd. 93,
Ahe'lrn v. Ahearn, [1917] St. R. Qd. 167; [1917J Q.W.N. 24.
This standard
is, however, not necessarily the same as that which the dependents were allowed
in the testator's lifetime, which may have been either too penurious or too
luxurious, Welsh v. Mu/cock, [1924] N.Z.G.L.R. 169; Re Lock, [1931] S.A.S.R.
418. The court should consider what a wise and just, rather than a fond and
fanli,h, father or husband would have done, Bosch v. Perpetual Trustee Co. Ltd.,
[1':38] A.C. 477. Where the estate is a large one, the court is justified in making
pruvision to meet contingencies that might have to be disregarded where the
estate is ~ima~l, ibid. Where the cst~te is more than sufficient, an order giving
an equal amount to a number of claimants whose needs vary is not necessarily
improper, Re Just, [1938] St. R. Qd. 93.
Where the estate is insufficient to meet the moral claims of all of the wife
or husband and children the court will see that the available means of the
testator are divided in due proportion to the relative urgency of the claims,
Re Allen, [1922] N.Z.L.R. 218, approved in Re JlIst, supra.
Where the estate
is insufficient to meet all moral claims, see also R" Sharp, [1923] St. R. Qcl. 102:
[1923] f).W.N. 18; Re Grallt, [1~3S] St. R. Qd. 323; Re DOllnelly (1927), 27
S.RJN.SW.) 34.
The widow prima facie has a moral claim upon the testator's bounty; and
if her application is resisted it is for the residuary legatee to satisfy the court
that her cond\~ct or character is such as to disentitle her to the benefit of this
legislation.
Where the testator has omitted all reference to his wife in his
wnl b~cal!se he ;l!spected her of misconduct Wilh another man and accused her
of it, the court wiil determine on the evidence whether the testator had or had
not gcoJ ground for such suspicion. wilhout requiring strict proof of a matrimonial
offt:ncc, R{' Scott: Scott v. Unio!1 Tmstee Co. of Allstraiia Ltd., [1950] V.L.R.
102, fo]!owing anJ applying Re Rllxtorl, [1946] V.L.R. 334; 52 A.L.R. 413; and
Rc K. [1921] Sl. R. Qd. 172.
The widow's c),lim is not necessarily paramount. See for example Re Joslill,
JO\li'l v. March, [1941] 1 eh. D. 200: [19411 1 All E.R. 30~. In that case th(~
annli ;:l~t widow, for whom the hu:;band's will made 110 provi'iitln, kid a sm'lll
il;~c'mc "f her own. The tel'tator. whose estate was vaJ;]cd fnr orch:!te ~,t ahOt:t
716
SUCCESSION
Vol. 16
£370 gross, bequeathed the residue (after payment of his financial and testamentary
expenses and debts) in tnlst for the benefit of another woman and two children she
had borne him, mother and children being penniless. Farwell, J., dismissed the
summons with costs. See also In the Will of Gilbert (1946),46 S.R.(N.S.W.) 318,
where Jordan C.J. quoted with approval the opinion expressed by Long Innes, J.,
in Re Crowe (1935), 35 S.R.(N.S.W.) 547, that there is no general rule that
the willow's right is in all cases paramount. In Re Traer.:cr, [1949] S.A.S.R. 180,
Mayo, J., reviewing the authorities at pp. 183, 184, held that the widow has
not, as such, a right paramount over that of the testator's children, though the
fact that she was not his first wife does not in itself depreciate her claim.
Gi!neraI
The bulk of the cases noted hereunder were decided under the repealed (or
similar) legislation, many of the provisions of which were materially different
from these S5. 89-94. The cases noted should therefore be read with care.
The judge must be satisfied that an applica:it claiming to be the widow of
the testator is the testator's lawful widow.
The presumption that a marriage
celtificate is prima facie evidence of the valid marriage of the parties named
therein may be displaced if some evidence is given which leads him to doubt
its validity. See Re Pecte; Peete v. Crompton, [1952J 2 All E.R. 599, where
Roxburgh, J., dismissed an application on the ground that the description in the
ccrtificate of the applicant as a widow at the time of her marriage to the testator
depended on her uncorroborated statement made to the registrar at the time of
thc ceremony.
In the case of a widow the court will make more ample provision than in
the case of children who are physically and mentally able to support themselves,
Allardiee v. Allardice (1909), 29 N.Z.L.R. 959; [1911] A.c. 730; Ahearn v.
Ahearn, [1917] Sl. R. Qd. 167; [1917] Q.W.N. 24; Bo,\('h v. Perpetual Trustee
Co. Ltd., supra. See also Re Crowe (1935), 35 S.R.(N.S.W.) 547. As to whether
provision for a widow can be made to continue after re-marriage, see D'Antoine v.
Field (1922), 19 Tas. L.R. 21; Winder v. Public Trustee, [1931] N.Z.G.L.R.
459; Newmall v. NewlIlan, [1927] N.Z.L.R. 418.
The fact that an applicant has helped to accumulate the testator's estate
is a fact to be taken into consideration. Ahearn v. Ahearn, supra; Re Heagcrty
(1915),34 N.Z.L.R. 905; In the Will of Hughes, [1930] St. R. Qd. 329; Re McCreedy,
[193RI St. R. Qd. 293.
Semble the fact tho.t an applicant has assisted to accumulate the testator's
estate, although relevant to the question which the court has to determine, will
not avail where the applicant is not in necessitous circumstances and the will
is not unjust. See Re Burke, [1940] Q.W.N. 33. As a rule a moral claim is
not sufiicient in the absence of need, see Re Sinnott, [1948] V.L.R. 279, where
Fullagar, J., ordered that the testator's unmarried daughter aged 30, who had asserted
her independence and was earning something over £4 a week, should receive
£2,000 out of the estate-the net valuc of which was between £12,000 and
£13,000-to be paid out to her after the death of the widow.
Evidence of a testo.tor's declarations in his lifetime is admissible for the
purpose of showing his reasons for making the dispositions contained in his
will, In the Will of Jolliffe, [1929J St. R. Qd. 189; Re Hall (1930),30 S.R.(N.S.W.)
165; Re JOlles (1921),21 S.R.(N.S.W.) 693.
Where the testator has, by mistake or oversight, omitted to make further
provision as he had intended, his wishes may be taken into consideration, Bosch v.
Perpetual Trustee Co. Ltd., [1938] A.C. 477. Similarly the opinions and wishes
of a just and wise surviving mother may be taken imo consideration in determining
provision for children, particularly where they are of tender age, ibid.
The court may allow a larger share than would have been obtained on intestacy,
Re Jlarris (1918), 18 S.R.(N.S.W.) 303. When husband and wife have been
living apart, the court may make an order for a larger sum to the widow than
that allowed by the husband to her during his life, Re Gerloff, [1933] S.A.S.R. 351.
Maintenance cannot be held, except under very special circumstances, to
include an unnecessary gift of corpus, III the Estate of Lade (1925), 21 Tas. LR.
13, at p. 16. Maintenance and support cannot include a power of appointment
by wiIl, ibid. In the cvent of the death of an applicant the court may make
an order for the payment of liabilitics incurred by the applicant for maintenance
remaining unpaid ut the death of the applicant, Re Shall/lOll (1935),35 S.R.(N.S.W.)
516.
SUCCESSION ACT OF 1867
s.90
717
Where an applicant daughter, aged twenty years, had lived from infancy
at the charges and under the care of another person, maintaining the relationship
of mere friendship with her mother the testatrix, who had not contributed towards
her support since she was five and made no provision for her by will (the
estate being valued for probate at £1,489 gross), Farwell. J., held that it was not
a proper case for the court to make an order, Mastaka v. Midland Bank Executor
and Trustee Co. Ltd. [1941) 1 Ch. 192; [1941) 1 All E.R. 236.
A married man separated from his family left his whole estate of approximately
£500 to a young woman whom he had promised to marry but who had not suffered
by her relationship with the testator. The court distributed the balance of thl:
estate over £100 to the wife and family, Re McRitchie, 14 Nov. 1917, referred
to in Graham's Supreme Court Practice, Part II, p. 195.
The court declined to make any provision for an applicant's children or to
give the applicant more than a life interest, Re K., [1921) St. R. Qd. 172.
Provision will be made primarily out of the residue, and the will will not
be disturbed further than is necessary, Ahearn v. Aheam, [1917] St. R. Qd.
167; [1917] Q.W.N. 24; In the Will oj Hughc>s, [1930J St. R. Qd. 329. Where
a testator had by his will given an interest in his estate to children, equal
shares in su;;h interest were provided for children born after the will was
made, In the Will oj Spence, [1929) Q.W.N. 15; Public Trustee v. Brown (1915).
34 N.Z.LR. 951. Where part of the estate had been distributed the provision
ordered wa~ directed to be made out of the remainder of the estate, In the Will
I'f O'Connor, [1931) Q.W.N. 39.
The COUlt directed payment to the applicant for his life of the income of
a sum to be set aside and conditions were imposed in McGrath v. Queensland
Trustees Ltd., [1919] St. R. Qd. 169; [1919] Q.W.N. 34.
Orders for provision out of the estate were made in the following cases: Re
Wil!ert, [1937J Q.W.N. 35 (estate of £19,668; lump sum of £1000 to married
daughter), Re McCreedy, [1938) St. R. Qd. 293 (estate of £2190; lump sum of £450
to married daughter), Re Vines, (1939) St. R. Qd. 68 (estate of £2500; £1 a week
up to £500 to widow living apart from testator); Re Hall, (1941) Q.W.N. 3
(estate worth less than £200; £50, inclusive of costs, to widowed daughter), with
which contrast Re Vrint (1940), 56 T.L.R. 953; Re Sylvcst{'/'; Sylvester v. P!lblic
Trustee, [1941) 1 Ch. 87 (estate of £19,000 net; application by husband, to whom
execut.ix had bequeathed a small annuity); Re Turner, [19431 St. R. Qd. 27
(estate of £6500; trustees ordered to pay lump sum out of the estate to lawful
daughter and three lawful sons, who were ail in needy circumstances, and
conditi0nal annuity to daughter besides), Re Johnston, [1947] Q.W.N. 29 (estate of
£7075 gross, liabilities £561; order for payment of lump sum of £500 free of
an death duties to testator's son and only surviving child, aged 47, married with
three children and in panr health occasioned by war service), Re Bradbury,
[1947] St. R. Qd. 171 (estate of £1700 net; spouses living apart; order for payment
of lump sum of £500 to second wife), Re Johnson, [1949) Q.W.N. 25 (net value of
estate £1187; principal asset a house and land valued at £1150 and let to a daughter
of testator, a retired sergeant of police, at a weekly rental of £1; no testamentary
provision for applicant, his second wife, who as his widow was receiving a police
pension of £8 13s. a calendar month; order for payment dUJ'{/llte viduitate of
£30 a year), Re Crowley, [1949] St. R. Qd. 189 (widow, sole beneficiary an
undischarged bankrupt at testator's death; pIOvi'iion made by court by creation
of a tru~t for maintenance of wife and infant children of marriage out of
estate), Rc Archibald, [1950] 2 Q.W.N. 2 (estate of £1871; pJOvision made by
court for excluded widow, aged about 65 and in poor health, and for two
excluded sons, of whom one was a cripple and both had worked on the testator's
farm for littl ~ or no remuneration).
Testamentary dispositions were varied ill Re Kniglit; Knight v. On!?ley,
r1939] N.Z.G.L.R. 673 (annuity to widow increased; annuity to housekeeper
commuted to lump sum; reduced shares to testator's brothers and nephews).
if: Rc Hughes, [1940) Q.W.N. 47 (infant children bmn after execution of will
admitted to equal share with eldest child), in Re H(/tt~" [1943] St. R. Qd. 1 (net value
of estate £9858; married daughter. ~ged 41, livinf: in Sydney in needy circumstances.
not mentioned in will. awarded £750; married son, aged 38, not mentioned in will,
who had accepted £450 in settlement of his claim, awarded by judge of first
instance £1250, which was reduced on appeal to £800), in Re Moorhouse, [1945]
Q,W.N. 10 (whole estate of net value of £1886 left to son and two daughters,
both ma[li~J; widow, aged 55, having two accounts at savings bank of £310 and
718
SUCCESS10N
Vol. 16
£ 117 respectively. c;,rning £2 a week hy temporary catering for Allied Forces.
n 59 as pa) ment for leave due to testator fwm Main Reads
Commission. awarded £600), in Re Brow/l, [1946] Q.W.N. 43 (realty a dairy farm.
\ allied at '£1005, personalty at £4; applicant, married son, aged 44. worked for
teslator as farm labourer for thirty years: only remuneration pocket mO!ley and
keep: estate pur (liitre j'ie; will judicially varied by substitution of absolute interest).
il Ny Godwin, [1948] Q.W.N. 1 (net vallie of estate £2250; possibility of intestacy;
'dbourer's widow, aged 68. in recei;1t of net weekly income of 45s., with less
than £100 in Savings Bank, awarded £350 conditionally), in Re Stewart, [19481
Q.\V.N. 11 value of estate in Queensland £4548; farm in New South \Vales valued
at C~48 and let at £36 a month: additional orovision of n a week for widow.
;!~.c'.\ 4P>, '.1!ltil death or remarriage, rent in executor's hands being personal property
-distinguishing Re Osborne, 11928] SI. R. Qd. 129). Re Blltler, [194"J V.IR.
43.1 (net valu.: of estate £44,895; daughter left unprovided for by the will; order
;q'pcaled from varied by substitution of .£5000 for the £3000 al10wed to her) Re
S/n1'art (supra) was considered by Sholl, .J., in Rc Paillin, [1950] V.L.R. 462, at pp.
467,468; 57 A.L.R. 14S.
a'iO having received
See '11so Re Poillter; Pointer and Sholl/cld v. Edwards, [1941 J 1 Cl. 60; [1940]
4 All :c.R. 372 (application hy daughters).
In the follm"ing case, applicatic)J1s were rcfds(d: [?,' McC(e('(l\', [i9381 SI. R.
Qu. 293 (application by onc of two married daugbte, applicants), P" B:uke,
[1~401 Q.Vi.N. 33 (est:ltc of £1500). /\e T., [1940] SI. R. Qd. 290 (estate of GhJl0f';
;'Y)[11icGnt dau<;htcr m::intai:icd by wealthy husband), Re Whitfield, [1937] V.LR.
207 (application by elderly widow, testator's sec,,~d wife. married ~i'te~n mo;:tns
bef,):··,; testator's death at 76), Re Duncan. [1939] V.L.R. 355 (appiication by
d::u:;:ntcr of testatrix who gave reasons for omitting Iler from tile will which shmvcd
th:!t the testatrix had not been guilty of a breach of moral duty and which the
,laughter had not rcbu:lcdl. /?e Stv!cr, 119421 '2 All E.R. 201 (ciaim by second
hl"b3~d cf testatri·,. who had derived her est~te whollv from her first husband;
value of estate about .£1140 net: applicant aged 68 and havi'lg an income d
;,bout £5 a week; SO!L beneficiary, married daughter aged 38 d testatrix by
first husband. not in a better position than testatrix's second husband), R(' Inns.
[19471 eh. 576 (a[1plieation by widow entitled under husband's will to income
L'om a ,rim of £85,000 and permitted to reside at his residence, subject to her
maintai!'ing and insuring it; claim that testator intended her to continue living
there. but income she received under ", ill--she had prcperty of her (}wr·-was
i'~'lIr;cie!1t to enable her to do so), applyi'lg Re Slylcr, [19421 Ch. 387; [1942]
'2 i\;l E.R. 201; and R{' Pugh, [19,B] Ch. 387. Rc Pial!, [19521 Q.W.N. 3 (testator
a Lll111("'; est:lte of £38S7: application by son aged 64 in poor health ;,I.d da:Jghter
aged 57, both single, who had worked on the farm and derived their keen
ilnd t1:ei~ not inconsiderable assets from it fnr nwre than fmly \'t::us: b,q;rcst
0; half the personalty (other than livestock and fa<m implements' il"ld a life
interest in half of the income derived from lise of farm. stock a:1cl ir:1plemcnts;
powers under Settled Land Act a factor to be considered).
See also Re Pritchard (1940)' 40 S. R.(N .S.W.) 443 (applicant ar: i11q:itimate
l'hild) .
The mere fact that the sale beneficiary mentioned In the will has
p;'cdeecased the testator docs not deprive the court of power to make an order
u"der this section. See. for example, R" Mayes, [1957] Q.W.N. 23, where a wife
had duly executed a will, whereby she appointed an executor and g:lVe all her
prop~rty to her husband. without making provision for two children ry a formn
marriage.
In Rc Milson, [1954] Q.W.N. 8, Stanley, J., inserted in the will a new
paragraph devising and bequeathing to a spinster daughter of the !c'talm leis
dwelling-house and furniture and other contents therein and thered 3:1d £100
in accordance with his intention as expressed in a second will which he signed but
which was not validly attested.
In Re Barron, [1955] Q.W.N. 82. Townley, 1.. found that the testatrix,
who had left all her estate, which was valued at £12,587, to Brisbane Legacy War
Widows and Orphans Fund for the charitable purposes thereof, had failed in her
moral duty to the applicant, her only child, an able-bodied married man with two
young children, who was employed by the Postmaster-General at a salary of £858
and had assets valued at about £770, apart from a war-service home mortgaged for
SCCCESSION ACT OF 1867
s.90
719
about £2475. His Honour ordered that the applicant be allowed £5000 free of duties.
For another example of a mother's failure in her moral duty see, Re Coates, [1956J
V.L.R. 72; [1956] A.L.R. 739, noted illfra.
In Re Zechen, [1955] Q.W.N. 70, the net value of the estate, as disclosed
for the purposes of succession duty, was £1'46.
At the time of the application
t:1e ex':cutrix, sister of the deceased wife of the testator, to whom he had left
his wb.ole estate, was a patient in a Mental Hospital; and the applicant. the
tc:;tator's ('nly child, aged fifty years, was a rei son of subnormal mentality.
in tb~-;e ,:in:umstances Jeffricss, A.J., appointed the Public Curator guardian
a:i !Item of the beneficiary <L,d also appoi;1ted a next friend cf the applica;1t. On
a further hearing his Honour ordered that the whole estate be held by the Public
Curator upon trust for the applicant with the widest powers of administration.
h Re Jackson, [1954] N.Z.L.R. 175, tile Supreme Cowt of ;\c\\ Zealand hdu
that the wife, who after thirty years of marriage hau descrkc.i her husband anu their
idant son s~ven years before the husband's death and whcse app;icati'.H1 for
mai:1te:>a;]ce ~l:ld separaiion on the ground of cruelty hau been dislllisseu by th~
l'.iagistrates Court, had not thereby autommically forLit~d ail claims to p:·ovi:,ion
Oel[ cf t::~ hl:~banu's estate.
In Rc Coates, supra, Lowe, J., granted an applicacj(11l made by a son, the
,1l1il' chiid Dr the testatrix, who had left the applicant :;n annuity of £62·\ a year
'!lit of her estate cf the appro\imate v;tllle of ISO,DOO.
; lis Honour, holding
that the: :~\)\:lt was entitled to take into account changed circumstances (depreciation
d m;)"ej' included) which had occurred since the 'Jcath of the tcstatri';, substituted
tbt.> sum ur £384 for the amount left by the wil!. On ;tppcal t!)C High CO;lrt,
varying his Honour's order (which increased the annuity by £5 ~l week), grankd
an ir:c,;;;d..'ie of £20 a week, Coales V. Nati'illa! '/'/'I,'.\'I('(.\", Ftecl/lers ilild AC:;'lic·;· Cu.
of Austraiasia Utl., [1956] V.L.R. 72; [1956] A.L.R. 73l).
.
.
I: p'! J., deceased, [1957] Q.\V.N. 8, Philp . .I., clrdercJ that the whole of
,h~ r.ct estate (approximatdy £')31) of the d'x:ae,;,:d. v:ho had died intestate,
be he:d by the Public Curator and applicd for the maintenance and benefit
cf his i!le:;:Lmate child, born pLlsthum('usly, until the chilli s:ll1uld atlain hi.;
r:O.I;oric.y, tile only next of kill being lice ueceascd's father, ageJ 70 years, a~
!i),out; c; :i Mental Hos;1ital.
Si,j';:~'.·· <"[,,i,iu;]s to the proviso to subsection (j) were di'icl','cd in Re S.,
I I )S~',J QJ. R. 44'), whcre Philp, S.PJ., held (i) that the finding of a magistrate
\,,,, hz;d made an alliiiati, 'n order again·;t the testator about !ivc years before
""~ t~st:\t')r's ueatn had TlO prubative force up()n ~1I1 app:ic:ltinn l!nun this
,~"i.'iJaiion, iii) that the statements and acts of the tc.,lator, who contested the
applic:ttio'1 f,'r affiiiation Clnu deni~d p:.lerr';:y w,rc admissibk upon these
p,-ocecding-; not as declarations of a deceased person against interest but as
rel::ting t" :he state of mind of the testat,'r; (iii) chat the court in e';crcising
its dis':1 ~ttnnary power to make provision Hilder the TesLlt,'r's Family Maintenance
I\ds rnc;"t take imo account the Llcts as they cxi:,t at tile time of making
th': prde., Coale\' v. Nariollai Trustees, Exccutors and Agency Co. Ltd., [1956]
95 C.L.R. 494, and War/adg£' v. D:>ddridge (1957), 97 C.L.R. 1 applied; (iv)
th.lt, ::':Ill)ugh this evidence docs not require corroboration, the evidence of
acknov,Iiedguncnt or recognition of paternity was net rcaso;]ably sufficie<1t, Re
Gam,1t (;3115), 31 Ch. D. 1, at p. 9, followed.
;\;Jpli':anl's ci"lracter and conduct.-The onus of proving the matters under
parag::' ',h {c 1 "f subsection (2) is upon thoc;e opposing the applicatio:1, Re Osborne,
[1<)28] St. R. Qd. 129.
In McGrath v. Queensland Trustees Lid., [19191 St. R. Qd. 169; [1919]
Q.W.N, 34, the applicant's misconduct was taken into consideration in tktermining
the n:lture of the provision which should be made. It has been held in other
States, however, that the court is only entitled to consider applicant's character
or conduct for the purpose of determining whether it will refuse him all
r,·"vi·,ion. Pc' Dingle (1921), 21 S.R.(N.S.W.) 723; Re Gran's Estate (1929),
25 Tas. L.R. 15,
In He.' Wrir;ht (6 April 1918, referred to in Graham'S Supreme Cm,rt Practice,
Part 11., r. 199) an allowance was made to a wife deserted for a long period
by the kstator, who had subsequently borne an illegitimate child and been
convicted of sly grog selling,
As to the effect of misconduct of an applicant,
see also McGrath v. Queensland Trustees Ltd., supra; Re K., [1921] St. R. Qd. 172;
III the Wiil of T.M., [1929] Q.W.N. 2; Rc McGolln, [19101 VLR. 153; Geen
v. Gem (1913), 33 N.Z,L.R. 91; Ray v. Moncrjef], [19171 N.Z.L.R, 234; Re
720
SUCCESSION
Vol. 16
Hallahall (1918), 18 S.R.(N.S.W.) 138.
An allowance was made to a wife
who had separated herself from her husband for many years, Rc Vines, [1939]
St. R. Qd. 68.
For an illustration of conduct disentitling an applicant son of the testator
(who had died at the age of 97 years) see Re Hardgraves (No.2), [1956] St. R.
Qd. 153, where the High Court refused him leave to appeal from the decision
of the Full Court, which had dismissed an appeal from Macrossan, C.J., disallowing the claim.
Subsection (4)-As for the scope of subsection (4), Stanley, J., held
tilat the court had no power to vary an order, made thirteen ) ears before,
chargi!1g an allowance to the widow on certain lands of the testator, by directing
that the iands in question might be sold free of the encumbrance and that
other lands might be acquired and made suhject thereto, Re Daniel, [19491
Q.W.N.30.
Subsection (6)-The special provision in subsection (6) appears to treat the
"application" as being the originating summons and to imply that the time when
the "application"-subsection (1 )-is made is when it is filed in court, i.e.,
when the summons is se:!led and before it is served. See He Ridf.:way, [1952] V.L.R.
71, at p. 75; [1952] A.L.R. 262 at p. 265, where Smith. J., overruling a preliminary
objection that the application was out of time, held that it is immaterial that more
than six months have elapsed from the grant of pronate (subsection (8)) nefore
the summons is brought on for hearing.
Time limit for applications.-Where probate is resealed under the British
Probates Act, 1898, p. 625. lInte, any application under this Act must be made
within six months after resealing, Holmes v. Permanent TrUSTee Co. (1931).
47 C.L.R. 113.
An application was allowed to be made nearly two years after an order
to administer had been granted to the Public CUrator, III the Will of O'Connor.
[1931] Q.W.N. 39.
Extension of the period of six months was refused, In
the Will of T.M., [1929] Q.W.N. 2; R{' Michel, [1939] Q.W.N. 49.
Where a long time has elapsed between the date of the grant and the
applicant becoming aware of his right to apply, he should apply with expedition.
See Rc DOflkin, deceased, [1966] Qd. R. 96.
The date of the grant within the meaning of this subsection is the date
when the formal grant is signed sealed and issued by the COlin, Re Wieland,
dec('{Isui, [1960] Qd.R. 585 overmling Re Geise, [1957] Q.W.N. 20 and Re Burton,
[1958] Q.W.N. 27.
However, once a grant of pronate has heen obtained, a
court has power to direct that an application be heard, notwithstanding that the
proceedings were instituted before the grant. So held by Gibbs, J., in Rc Purnl'il,
dccl'asl'd, [1961] Q.W.N. 34.
The time for instituting an application under this section runs from the
date of the issue of the formal grant. Re Wieland, supra.
A grant of probate is a condition precedent to the making (1f an order.
Re ]cnner, deceased. Nuffer v. ]('nner, [1960] Qd.R. 349.
QII(ere whether as a matter of constmction it is permissible to initiate an
application before probate. See Re Searle; Searle v. Siems, [194C}1 I Ch. 73 at
11p. 76, 77; [19481 All E.R. 426.
For an example of refusal to extend the time, see Rc Barrot, [1953J V.L.K 308:
[1953J A.L.R. 634, where Sholl, J., held that a delay of three aml a-half years
from prcbate on the part of the widow applicant, was inexcusable.
Where proceedings have not been instituted within the time limited by
subsection (8), or having been duly instituted have been discontinued, the applicant
must make his application promptly and satisfy the court or judge that the circumstances arc such that to penalize him for being out of time would be unjust, Re
Guskett, [1947] V.L.R. 212.
The onus of proving facts justifying an extension of the time for making
the application rests upon the applicant.
Compare Re A1arlalld, d('cea~ed,
[1957] V.R. 388; [1957] A.L.R. 752.
On subsection (9) it has been held, in Re Crowley, [1949] St. R. Qd.
189, that an estate which the testator had devised and bequeathed to his widow,
who in the interval between the execution of the will and his death was m;Jde
bankrupt and at the time of an application under this section rv children of
SUCCESSION ACT OF 1867
s.90
721
the marriage had not obtained an order of discharge and still owed her creditors
about £1000, did not vest in the official receiver under the Bankruptcy Act
so as to deprive the court of jurisdiction to make an order under this Act
and that there was no conflict between this Act and that Act.
Appeals.-The decision of a judge of first instance will be set aside on
appeal only where he has acted on some wrong principle or has failed to
exercise a judicial discretion, Re Just, [1938] St. R. Qd. 93, or where an injustice
has been done or the case has abnormal features, Re Grallt, [1938] St. R. Qd. 323,
or the judge has acted on a wrong view of the Act or failed to keep relevant
matters in view, Bosch v. Perpetual Trustee Co. Ltd., [1938] A.C. 477. See
also Re Vines, [1939] St. R. Qd. 68.
On the functions of an appellate court with regard to reviewing the decision
of a judge of first instance under this legislation, it has been held that the
discretion of a judge of first instance in making or refusing an order for
provision out of the estate cannot be reviewed on appeal unless he has acted
on a wrong principle of law or has not exercised his discretion at all, Re Whitfield,
[1937] V.L.R. 207; Re Hatte, [1943] St. R. Qd. 1. See however III the Will of
Gilbert (1946). 46 S.R.(N.S.W.) 318, at p. 323, where Jordan, c.J., following
Re Ryan (1923), 23 S.R.(N.S.W.) 354 at p. 357, draws a distinction between
an exercise of discretion on a point of practice or procedure and an exercise of
discretion that determines substantive rights. See also Re Butler, [1948] V.L.R.
434, when the Full COUl1 of VictOl;a held that where there is a great disparity
between the amount which an appellate court thinks necessary for an adequate
prm'ision for the applicant and the amount fixed by the primary judge, the
appellate court will review the exercise of his discretion. Generally as to excrci'e
of discretion, see Re Catmull, [1943] Ch. 262; [1943] 2 All E.R. 115, at p. 119.
Qu(ue whether, on the death of an applicant appellant before the judgment
of the appellate C(]UJ1 is delivered, his right would pass to his personal representative. See BadCl' v. Westminster Trust Co. (1941), 57 Br. Col. R. 21.
For an example of an award of residue (which included realty) set aside
on appe~d. 0,1 the ground that the trial judge had exercised his discretion wrongly,
sec Re Hardr.;rGl'cs, [1955] St. R. Qd. 601, \,here the Full Court intimatcd
that the whole matter should be reheard before another judge.
Praetice.-Application is made by originating summons. See R.S.C. (1900),
Order 64 and Schedule I, Part L Section 8, tilk SUPREME COURT AND
PRACTICE.
All parties who might be prejudiced or bencfited by an order
,hould, where reasonably possible, have an opportunity of being heard. In simple
cases notice should be given to them by the applicant without taking out a
summons for directions, Re Sharp, [1923] St. R. Qd. 102; [1923] Q.W.N. 18.
The Public Curator who had obtained an order to administer was appointed to
rcrrcscnt al1 beneficiaries under the will, In the Will of O'Connor, supra. The
office of Public Curator has now replaced those of Curator of Intestate Estates and
Curator in Insanity: see Public Curator Acts, 1915 to 1957, ss, 6, 7, title
TRl!STEES AND EXECUTORS.
\( is the duty of counsel for the executors to assist the court, and not
merely to submit, Rl' NCII'ell (1932). 49 W.N.(N.S.W.) 181.
Where questions concerning the construction of the will and the administration
of the estate, material to the question whether the testator has made adequate
provision for the applicant, are raised upon the hearing of tbe application,
the proper course is to adjourn the application pending the preliminary determinatioll of the former questions in appropriate proceedings, Re Davis; Dm'is v.
McEachern; Dm'is v. Dm'is, [1952] V.L.R. 517; [1952] A.L.R. 987.
In Re Andrews, [1956] Q.W.N. 50, Townley, J., under s. 7 of the Service
and Execution of Process Act 1901-1963 (Commonwealth) ordered that a
concurrent originating summons be issued for service out of the jurisdiction on the
widow applicant's four children in New South Wales.
On the original return day of the summons the application is treated <IS
one for directions. Where it appears that the application is out of time objection
should be taken when the matter first comes before the court and before any
order for directions is made, Re Geise, [19571 Q.W.N. 20.
As to discovery in proceedings under these Acts see Re Edmonds, deceased,
11'J60] Q.W.N. 3:'; Re Propstillg. [1955] Q.W.N. 18.
722
SUCCESSION
Vol. 16
\Vi-,c;'~ the executor i, aiso a beneficiary he should not, except in special
circumstances, be separately represented in his capacity of beneficiary, Re Burton,
(1958) Q'w,N, 27.
One of a number of executors who have obtained probate may himself, if
otherwise competent, make application for maintenance out of the estate, service
being effected on his co-executors who are not so applying, Re Mitchell (1942),
42 S.R.(N,S'w.) 19.
Costs.-The practice is to allow the costs of a successful applicant as
betwsn solicitor and client Ollt of the estate. See III the Will of Jolliffe, [1929]
St. R. Qd. 190: Rc Mcl!l'l'd\'. [19381 St. R. Qd. 293; In lite Will of Hughe~.
[1930 I Sl. R. Qd. 329; G rah:lm's Supreme Court Practice, Part II, p. 200. An
u"successful applicant may be ordered to pay co,ts (SlIrreme Court Act of
1867, s. 58, title SUPREME COURT AND PRACTICE: R.S.C. (1900), Order
91, rule I, title SUPREME COURT AND PRACTICE; Graham'S Supreme Court
Practice, Part II., p. 201), but the practice appears to he to leave an unsuccessful
appiicant to bear his own costs only. See Re McCreedy, supra; Re Sharp, [1923]
St. R. Qd. 102; Re Chapman, [1918] St. R. Qd. 226; He iHcGOIlIl, [1910] V.L.R.
153.
Costs of executors as between solicitor and client are raid <0111 of the
estate whatever the result of the application. See Rc ~1cCrcedy, supra; III the
Will 0/ Spcnce, [1929] Q.W.N. 15; Re Sharp, supra. As tll costs of an appeal, see
Ri! ius!, [19381 Si. R. Qd. 93; Re Grant, [1938] St. R. Qd. 323; Bosch v. Perp"wa!
Trus:c~ Cn. Ud., [1938J A.C. 477.
R~
For the basis of ta':ation of costs as between sc1icitor '.~nd client, see
Bra.\·""u, [1941] Q.W.N. 32, explained in Re Iicaslop, [1948J Q.W.N. 10.
91. Court may vary ordCf. (1) \Vhere (whether before or after the
passing of "The Succession Acts Amendment Act of 1968") the Court
has ordered a periodical payment or has ordered any part of the estate
or a lump sum to be invested for the benefit of any person, it may from
time to time on the application of any person inquire whether any party
deri\'~ng benefit under the order is still living or has become possessed
of or entitled to provisin:ls for his proper maintenance or support and
into the adequacy of the provisions, or whether the provisions m:lde by
the order for any SUC~1 party remain adequate, and may increase or reduce
the provisions so made or discharge, vary, or suspe l H.1 the order, or make
such o'her order as is just in the circumstances:
Pmvided that the Court shall not increase the provisions so made
unless the income of the estate or, as the case may be, the capital or
income uf the part of the estate or lump sum invested for the benefit of
the person concerned in pursuance of the original order is considered
by the Court to be sut11cient for the purposes of such increase and all
other lawful payments (if any) therefrom.
(2) Without derogating from the provisioils of subsection (1) of
this section, where the Court has increased the provisions so made for
the benefit of any person and at any subsequent date the income of the
estate or, as the case may be, the capital or income of the part of the
estate or lump sum invested for the benefit of the person concerned is
considered by the Court to be insufficient for the purposes of such
provisions and all other lawful payme:1ts (if any) therefrom, the Court
may reduce or suspend any increase or discharge, vary, or suspend the
origin.al order, or make such other order as is just in the circumstances.
InSt!r!ed by Act of 1968, No.8, s. 12.
Act referred to:
Succession Acts Amendment Act of 1968, p. 731, post.
Se.: (a~~s noted to s. 90, allte.
SUCCESSION ACT OF 1867
ss.90-93
723
92. (1) Manner of computing duty on estate. Where an order is
made by the Court under this Part, all duties payable in consequence of
the death of the deceased person shall be computed in the following
manner:(a) where the deceased person leaves a will, as if the provisions
of such order had been part of the will;
(b) where the deceased person did not leave a will, as if the
provisions of such order had been part of the law governing
the distribution of the estates of persons dying intestate.
(2) Refund of duty paid in excess. Any duty paid in excess of the
amount required to be paid under this section shall, on application and
without further appropriation than this Part, be refunded to the person
entitled to receive the same.
Inserted by Act of 1968, No.8, s. 12.
As to duty, sec Succession and Probate Duties Act 1892-1969, title SUCCESSION AND PROBATE DUTIES.
93. Protection of personal representative.
(1) No act ion ~hall lie
agaimt the personal representative by rea~on of his having distributed
any \"':1:'t of the estate, and no application or order under this Part shall
disturb the distribution, if it was properly made by the personal
represe~ltati\"e for the purpose of providing for the maintenance or
sUp['OrL of the wife, husband or any child of the deceased person
totally or partially dependent on the deceased person immediately before
the death of the deceased person whether or not the personal representative
had no~ice at the time of the distribution of any application or in:e:'ded
appl;cation under this Part ill respect of the estate.
(2) No perS(::l WllO may have made or may be entitled to make an
arp! icat;on under this Part shall be entitled to bring a;1 action against
the personal representative by reason of his having distributed any part
of the estate if the distribution was properly made by the personal
represeatative after the person (being of full legal capacity) has notified
the personal representative in writing that the person either(a) conscnts to the distribution; or
(b) does not intend to make any application that would affect the
proposed distribution.
t 3) No action shall lie against the personal rcpresentative by reason
of his having distributed any part of the estate if the distribution was
properly made by the personal representative after the expiration of six
months after the date of grant of probate of the will or of letters of
administration or of an Order to Administer or the filing of an Election
to Administer (as the case may be) and without notice of any aDplication
or intended application under subsection (1) of section ninety of this
Act or under section ninety-one of this Act in respect of the estate.
(4) For the purposes of this section notice to a personal representative of intention to make any application under this Part shall be in writing
signed by the applicant or his solicitor and shall lapse and be incapable
of being renewed, and the personal representative may act as if he had not
received the notice, unless, before the expiration of three months after
the day on which he first receives notice of intention to make the
724
SUCCESSION
Vol. 16
application. the personal representative receives notice in writing that
the application has been made to the Court or is served with a copy
of the application:
Provided that nothing in this subsection shall prevent the subsequent
making of an application within any other period allowed pursuant to
this Part.
Inserted by Act of 1968, No.8, s. 12.
See cases noted to s. 90.
94. Rules of Court. All such Rules of Court as may be necessary
or convenient for regulating the practice and procedure of the Court
for the purpose of giving full effect to the provisions of this Part may
be made and the provisions of "The Supreme Court Act of 1921" and
"The Supreme Court Acts Amendment (Rules Ratification) Act of 1928"
shall apply and extend in respect of such Rules of Court.
Inserted by Act of 1968, No.8, s. 12.
Act~ referred to:
Supreme Court Act of 1921, title SUPREME COURT AND PRACTICE.
Supreme Court Acts Amendment (Rules Ratification) Act of 1928,
title SUPREME COURT AND PRACTICE.
PART VI-GENERAL
Heading inserted by Act of 1968, No.8, s. 13.
95. Presumption of survivorship in regard to claims to property.
(Compare the Act 15 Geo. 5 Ch. 20 s. 184.). (1) In all cases where,
after the commencement of "The Succession Acts Amendment Act of
1942" two or more persons have died in circumstances rendering it
uncertain which of them survived the other or others, such deaths shall
(subject to any order of the court), for all purposes affecting the title
to property, be presumed to have occurred in order of seniority, and
accordingly the younger shall be deemed to have survived the elder.
(2) Meaning of "property". (Compare the Act 15 Geo. 5 c. 20
s. 205 (1) (xx).). In this section, unless the context otherwise requires,
the term "property" includes real estate and personal estate.
Originally inserted as s. RS,\ (as from 1 January 1943) by Act of 194~.
6 Geo. 6 No. 20, s. 2; renumbered s. 95 by Act of 1968, No.8, s. 14.
Act referred to:
Succession Acts Amendment Act of 1942. p. 728, pwt,
The words "subject to any order of the Court" mean that the statutory
presumption as to the order of such deaths is rebuttable: and the court is
entitled to receive evidence which may displace it. They do not give the court a
discretion to disregard the presumption if the court comes to the conclusion that
it would be unfair or unjust to act upon it, Re Lindop; Lee-Barber v. Reynolds,
[19421 1 Ch. 377; [1942] 2 An E.R. 46. See also Peacey v. Grosvenor, [19441
I Ch. 138; Re Mcrcer.
Tanner v. Bulmer (1944), 60 T.L.R. 487; [1944]
1 All E.R. 759: 37 Q,L.R. 552. In Hickman v. Peacery, [1945] 2 All E.R. 215.
at p. 219; 38 Q.L.R. 637, Lord Simon. L.e., observed "No entirely satisfactory
interpretation of these words has, I think, ever been put forward. May it be that
they were intended to provide for a case where sufficient evidence as to the
respective ages of the deceased persons was not forthcoming?"
On the application of the words "uncertain which of them survived the
other or others," see Hickmall v. Peacey, supra, where the House of Lords,
by a majority, reversing the decision of the Court of Appeal in Re Grosvenor,
[19441 Ch. 138; 60 T.L.R. 124; [1944] 1 All E.R. 81; 37 Q.L.R. 552, decided
that when the circumstances are such that it cannot be ascertained that one of the
SUCCESSION ACT OF 1867
ss.93-96
725
deceased survived the other, then the uncertainty which the section postulates
exists and the statutory presumption applies. The section does not apply where
there is evidence on which the court can come to a conclusion which of two
persons died first, Re Comfort; Re Tinkler, [1947] V.L.R. 237, following Re
Plaister; Perpetual Trustee Co. v. Crashaw (1934), 34 S.R.(N.S.W.) 547.
See further Re Howard; Howard v. Treasury Solicitor, [1944] P. 39; 60
T.L.R.248.
On the meaning of the words "for all purposes affecting the title to property,"
see Re Grosvenor, supra, which does not appear to have been overruled in this
regard.
The operation of the section is not restricted to the deaths of commorientes
(persons dying in one and the same catastrophe): it extends to deaths that have
occurred in circumstances entirely unconnected. See Re Watkinson, [1952] V.L.R.
123; [1952] A.L.R. 361, where Gavan Duffy, J., followed and applied a dictum of
Viscount Simon, L.C., in Hickman v. Peacey, [1945] A.C. 304, and expressed
the opinion that the proper construction of the corresponding section requires
that all the deaths must take place after the time therein specified.
For an example of separate simultaneous grants of letters of administration,
see Re Keegan, [1951] Q.W.N. 52, where husband and wife and their two infant
children had perished in an aircraft disaster.
COMMENCEMENT AND SHORT TITLE
96. Commencement of Act. Short title. This Act shall commence
on the thirty-first day of December one thousand eight hundred and
sixty-seven and may be referred to as the "Succession Act of 1867."
Originally s. 89; renumbered by Act of 1968, No.8, s. 15.
726
Vol. 16
SUCCESSION
SCHEDULE
Inserted by Act of 1968, No.8, s. 16.
[ss. 29 to 34]
DISTRIBUTION OF RESIDUARY ESTATE UPON INTESTACY
PART I-MANNER OF DISTRIBUTION WHERE INTESTATE IS SURVIVED BY
A SPOUSE
Item
I
Circumstances
Manner in which the residuary
estate of the intestate is to be
distributed
1.
Where the intestate is not I The spouse is entitled to the whole
survived byof the residuary estate.
(a) issue; or
(b) a parent, a brother or
sister or a child or
children of a brother or
sister
2.
Where the intestate is survived
by issue
11. The spouse is entitled to one-half
of the residuary estate if there is
only one child or to one-third of
the residuary estate if there is
more than one child.
2. The issue of the intestate are
entitled to the balance of the
residuary estate.
3.
Where the intestate is not
survived by issue but is
survived by a parent, a
brother or sister or a child
or children of a brother or
sister
1. The spouse is entitled-
(a) to the sum of twenty
thousand dollars from the
residuary estate or to the
whole of the residuary estate,
whichever is the less; and
(b) if the value of the residuary
estate exceeds twenty thousand dollars, to one-half of
the balance of the residuary
estate.
2. If the intestate is survived by
one or both of his parents
(whether or not the intestate is
also survived by a brother or
sister or a child or children of a
brother or sister), the surviving
parent is entitled or the surviving
parents are entitled in equal
shares, as the case may be, to the
remaining one-half of the balance
of the residuary estate.
SUCCESSION ACT OF 1867
Sch.
727
PART I-MANNER OF DISTRIBUTION WHERE INTESTATE IS SURVIVED BY
A
SpousE-<.:ontinued
I
Item
Manner in which the residuary
1_______
C_ir_c_u_m_s_t_an_c_e_s______ i____
es_t_at_e_o_f_th_e__
in_t_es_t_at_e_l_·s_t_o_b_e___
distributed
i
II
3. If the intestate is not survived
by a parent, the brothers and
sisters of the intestate, who
survive the intestate, and a child
or children who survive the
intestate of a brother or sister of
the intestate who died before the
intestate, are entitled to the
remaining one-half of the balance
of the residuary estate in such
shares as he or they would have
been entitled to the residuary
estate of the intestate if the
intestate had not been survived
by his spouse.
-- - - - - - - - - - - - - - - - - - - ' - - - - - - - - - - - - - - - ..
[ss. 29 to 34]
PART II-MANNER OF DISTRIBUTION WHERE INTESTATE IS NOT SURVIVED
BY A SPOUSE
I
Item I
Manner in which the residuary
estate of the intestate is to be
distributed
Circumstances
I
----1--------------------1------------------1.
Where the intestate is survived The issue are entitled to the whole
by issue
of the residuary estate.
2.
Where the intestate is not The parent is entitled to the whole
survived by issue but is
of the residuary estate or, if both
survived by a parent or both
parents survive the intestate, the
parents
parents are entitled to the whole
of the residuary estate in equal
shares.
3.
Where the intestate is not The next of kin are entitled to the
survived by issue or by a
residuary estate in accordance
parent but is survived by
with section thirty-two of this Act.
next of kin
4.
Where the intestate is not I The residuary estate shall be deemed
survived by issue, by a
to be bona vacantia and the
Crown is entitled to it.
parent or by next of kin
I
I
I