Predeceased issue & Contrary Intention

Issue are defined as a person’s children, (and if the children are deceased) grandchildren and (if the grandchildren predecease the intestate) great-grandchildren.

The High Court of Australia has found that the use of issue in a will means children and includes all lineal descendants of every degree.  “Issue” implies successive generations of parent and child relationships. It is not limited to “children” alone, although it may include them along with remoter descendants.

  Legislation has been passed with regard to  the interpretation of the provisions in wills when a beneficiary who is issue of the will-maker has predeceased the will-maker. The legislation also says that where there is a contrary intention in the will, the statutory rules may not apply.

Jean Longmore  (“the testatrix”) died on 10 May 2016. She and her late husband, Noel, had four children: Wayne, Kathleen, Robert and Roseanna. Noel and her son Robert predeceased her. His wife Beryl and his son Duncan survived Robert.

Probate of her will dated 27 February 1980.  was granted on 13 December 2016 to Roseanna, the sole survivor of the two substitute executors under the will. The will relevantly provided as follows

“3. I GIVE the whole of my Estate to my said husband for his own use and benefit absolutely provided he survives me for a period of thirty days.

4. IN THE EVENT of my said husband not so surviving me for the said period of thirty days I give the whole of my Estate equally between such of my children as survive me in equal shares as tenants in common.”

Jeans son Robert had died in 1983. Probate of his last will dated 20 March 1980 was granted to the executor appointed by that will. Robert’s will provided:

“3. I GIVE the whole of my Estate to be divided equally between my wife BERYL EDNA LONGMORE and my son DUNCAN WALTER JOHN LONGMORE .

4. IN THE EVENT of my said wife not surviving me I give the whole of my Estate to my said son DUNCAN WALTER JOHN LONGMORE.” 

As the Will was made prior to 1 March 2008 The Wills, Probate and Administration Act 1898 (“the WPA Act”), which was repealed by Succession Act 2006, applies to Jean’s will.

Section 29 of the WPA Act provides

“Gifts to children or other issue who leave issue living at the testator’s death 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 appears by the will.”

The point in issue is whether the words in the will, “between such of my children as survive me in equal shares as tenants in common”, constitute a contrary intention, so as to negative the operation of WPA Act, s 29.

If s29 of the WPA Act,  is applied to clause 4 of the testatrix’s will, the gift of a one quarter share of the estate would not lapse and that portion of the estate would pass to the executor of Robert’s estate, and would be dealt with under Robert’s will.

Roseanna as executor sought a determination from the court as to whether “a contrary intention appears” which would prevent the application of s 29 WPA Act to clause 4 of Jean’s will.

If the court found contrary intention and the consequent non-application of s 29 would permit the gift to Robert to lapse and Robert’s share of Jean’s estate would pass to her other surviving children under her will.

The court believed by the construction of clause 4 the testatrix wished to benefit by those words only her surviving children and not their children.

“to those of my children [who are named] as shall survive me for a period of thirty (30) days and if more than one in equal shares”

As such Roseanna is entitled to distribute Jeans estate without regard to the interests of Robert (“predeceased issue”) or any persons beneficially entitled to Robert’s estate.