After preparing a will it is important that the testator does not have a “set-and-forget” approach to the document, or indeed their wider estate plan. Circumstances change over time: potential beneficiaries are born or die, marry or divorce, or may fall into acrimony with the testator; assets are purchased, sold or partially transferred by the testator; the testator themselves may marry or divorce, have children, change the jurisdiction of their residence, or come into financial success or fall upon financial hardship. Where any such major life event happens to a testator it is likely that their estate will be impacted significantly, and the testator should update their will accordingly. Failure to do so will likely require the involvement of the Court to apply the common law doctrines of lapse or ademption.
Ademption applies if specific property gifted under a will no longer forms part of the testator’s estate at the time of death. Any such gift will fail as it is not possible for that property to be gifted as part of the testator’s estate.
Lapse can apply in various situations including where the will provides for a gift over of property, chattels, money or share of the residuary of a testator’s estate to a contingent beneficiary where the contingency does not happen. In such circumstances the Court will generally look behind the wording of a will to ascertain the intention of the testator under the presumption that the testator did not wish to die intestate.[1] In Queensland, s.6 of the Succession Act 1981 (Act) gives the Court broad powers in determining all matters relating to the administration of the estate of a deceased person and making any declarations and orders as are necessary and convenient.
The Supreme Court of Queensland was recently called upon to make such orders in respect of an estate potentially affected by lapse. The matter of Sadleir v Kahler & Ors [2018] QSC 67 concerned the hand-written document of a testator that purported to be a will, written in 1984, in which the testator’s entire estate was left to his brother provided the brother was not separated or divorced from the brother’s wife, in which case the brother’s children were to inherit the estate in equal shares. After determining under s.18 of the Act that the document was the testator’s will notwithstanding that it did not comply with the strict formalities of execution under the Act, the Court was then called upon to decide whether the children of the testator’s brother were entitled to the residuary estate given that the brother had died in 2009 and had remained married to his wife at the time of his death. The testator died in 2016.
In making her determination Atkinson J reviewed case law surrounding the doctrine of lapse. Her honour noted that the rule in Jones v Westcomb[2] forms the basis of the notion that in certain circumstances a beneficiary can receive a gift over even though the precise contingency does not occur where the Court determines that this was the testator’s intention. In applying a case involving similar facts in Queensland[3], Atkinson J determined “the real contingency that [the testator] was intending to guard against was the failure of [his brother] to take under will whether that failure was caused by [his brother] dying before [the testator] or being separated or divorced at the time of [the testator’s] death.”[4] Her honour therefore declared that the brother’s children were entitled to the residuary estate under the will.
Notwithstanding the Court’s broad powers under s.6 of the Act to interpret wills, testators should primarily seek to avoid the involvement of the Court if possible by keeping their wills updated with respect to property, beneficiaries and life circumstances. A great deal of time and cost to executors, beneficiaries and the estate in general could have been avoided in this case had the testator amended his will in the years following his brother’s death.
If you would like to update your will don’t hesitate to contact one of our solicitors for a free initial consultation.
[1] Buckley LJ in Kirby-Smith v Parnell [1903] 1 Ch at 489
[2] (1711) Prec Ch 316
[3] Re Stacey, deceased [1949] St R Qd 244
[4] [2018] QSC 67 at para 37
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