Jones v Westcomb – What’s 300 years?


Politicians and media commentators often criticise judges who disagree with the idea that the judiciary should observe strict black-letter law by labelling them “judicial activists”.  An independent judiciary, and respect for the role of Courts and tribunals, is fundamental to the rule of law.

One of the distinguishing features of the general law is that judges decide cases according to the doctrine of precedent – essentially that cases involving the same material facts must be decided in the same way.

The doctrine of precedent serves the political ideal of the rule of law; according to that ideal, courts among other institutions of state, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties.

Recently the Queensland Supreme Court applied a rule formulated in 1711. It strikes me that a profession that is painted by some as activist stretches back 300 years in order to construe a will makers intention.

Hannes Kähler died on 5 November 2016 at the age of 72, never having married and without issue. Hannes had three siblings who pre-deceased him Jorst, Gesine and Steffen. Only Steffen had children, Maike, Tim and Anne. Steffen’s widow, Frauke the mother of Maike, Tim and Anne survived him.

Hannes’ parents had issue from other marriages, making those children Hannes’ stepbrothers and sisters. Antje and Hans-Gerd survived Hannes and are still alive. Jochen pre-deceased the testator and left no issue. Anne-Kathrin pre-deceased Hannes, and left two children who are still alive, Julia and Laura.

In November 2016, Hannes nephew Tim found a family tree prepared by Hannes with some handwritten notes written in German at the bottom and Hannes’ Australian Passport.

Tim did not find a Will but he did find a receipt for documents from a firm of solicitors that Hannes had deposited documents with in 1994 included a document described as “Will dated 15 January 1984”. Anne received a scanned certified copy of that document. Which was described as

Original handwritten document, which purports to be a Will, dated 15 January 1984;


I, Hannes KAHLER, nominate as my sole beneficiary my brother, Mr. Steffen KAEHLER, of 52 Walkleys Road, Valley View, Adelaide, provided that he is not separated or divorced from his wife, Frauke Edith, nee BROLL, in which case my beneficiaries in equal shares shall be their children MAIKE, ANNE and Tim KAEHLER (3).

Townsville, the 15th of January 1984. H Káhler

My assets to date:

– Strata Title, Unit 4, 29 Stagpole St., West End (C/T in Safebox C’wealth Trad. Bank, Hermit Park)

– Cheque A/C and others with above Bank

– Superannuation Qld. Electricity Generating Board (to be Qld. Electricity Commission)

– Contents of above Home Unit

H Káhler 15/1/84.”

Hannes signature appeared at the end of each paragraph, and it was consistent with Hannes’ signature on his passport, a copy of which was deposited by Hannes with the handwritten document.

The court was satisfied that the document was an informal will as on the balance of probabilities that although it fails to comply with the formal requirements of a Will under the Succession Act it state Hannes testamentary intentions. The document is in his handwriting and titled as “my Will”, is dated and signed, and states the assets then available for distribution on his death. Although it does not appoint an executor, the document identifies the beneficiaries to whom his property is to be disposed upon his death.

The court was satisfied that Hannes never intended the document to be a draft will to be formally executed at a later date. It was deposited in safe custody with a firm of solicitors who gave him a receipt describing the document as a Will. The court believed Hannes intended the handwritten document to be his Will.

The informal will named Hannes’ brother Steffen as sole beneficiary,

‘provided that he is not separated or divorced from his wife, Frauke … in which case my beneficiaries in equal shares shall be their children’.   

At Hannes’ death although Steffen was dead he had not separated or divorced Frauke.

In determining whether there was an intestacy or the gift over took effect, the Court applied the rule in – Jones v Westcomb((1711) Prec Ch 316)

In Jones v Westcomb, a man made a will in favour of his wife for life and then after her death to the child with whom she was then pregnant, but if such child died before twenty-one, then the wife would be the beneficiary. However the wife was not pregnant at the relevant time.

Given that the testator willed, if his child died before 21, that the gift to the child should go to his wife; a fortiori(from the stronger argument)he would have intended that the gift over to her take effect, had he known at the time of the devise that she was not pregnant.

Where a testator has provided for the determination of an estate in any of two or more events, and has then given a gift over expressly to take place in one only of those events, the court will, in the absence of any indication to the contrary, imply, by way of necessary implication, an intention on the part of the testator that the gift over shall take effect, not merely in the specified event, but on the happening of any of the events which were to determine the previous estate.

In Hannes’ informal will, the real contingency for the gift over provision to apply was that Steffen was not living with his wife at the time of the testator’s death was satisfied by reason of Steffen’s death. The gift over to his children therefore took effect.

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