WILLS. 1365

WILLS ACT 1928.

An Act to consolidate the Laws relating to Wills. 19 GEORGE V. • No. 3803.

[12th February, 1929.] —

BE it enacted by the King's Most Excellent Majesty by and with wnis A# IBIS. the advice and consent of the Legislative Council and the Legis­

lative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):—

1. This Act may be cited as the Wills Act .1928, and shall come short title into operation on a day to be fixed by proclamation of the Governor in ^STiX*" ' Council published in the Government Gazette, and is divided into Parts as follows:—

PART I.—The Making Alteration Revocation and Revival of Wills ss. 5-20.

PAKT II.—The Construction of Wills ss. 21-3'5.

2. The Acts mentioned in the Schedule to this Act to the extent R(!pcai. thereby expressed to be repealed are hereby repealed. Such repeal shall schedule, not affect any will made or any proceeding pending or any right ' acquired or anything done or made valid under or by the said Acts or either of them before the commencement of this Act.

3 . In this Act unless inconsistent with the, context or subject-,nterpI.etation. matter— ib.». s.

" Personal estate " extends to leasehold estates and other J w^1t1<!

V26&

8 j chattels real, and also to moneys shares of Government and "Personal other funds securities for money (not being real estates) estoXe-" 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.

" R e a l estate" extends to messuages lands rents and here- "Reaiestau." . ditaments (whether freehold or of any other tenure and-

whether corporeal incorporeal or personal) and to any un- • divided share thereof, and to any estate right or interest • (other than a chattel interest) therein. '

1366 WILLS ACT 1928. [19 GEO. V.

Wills Aot l»tf. '• Will."

Effect of re-execution or re­publication by codicil. lb. ». 1. 7 Will. IV. & 1 Viet c. «8 s. SI.

All property may be disposed of by will. lb. t. B. lb. «. S.

Estates pur' autre vie.

Contingent interests.

Tiights of entry and property acquired after execution of the will.

Power for persons having no issue to dispose of real estate by will. 15 & 16 Geo. T. e. 20 s. 178.

Ifo vrill of a minor valid. lb. 8. 6. 7 Will. IV. * 1 Vict. c. 29 s. 7.

" Wil l" extends 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 by virtue of any Act, and to any other testamentary disposition/6'

4. Every will re-executed or republished 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 is so re-executed republished or revived.

PART I .—THE MAKING ALTERATION REVOCATION AND REVIVAL or WILLS.

5. (1) Every person may 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-law of him or (if he became entitled by descent) of his ancestor or upon his executor or administrator. And the power hereby given shall extend to estates pur autre vie, whether there shall or shall not bo any special occupant thereof and whether the same shall be freehold or of any other tenure and whether the same shall be in corporeal or incorporeal hereditaments ; aud also to all contingent executory or other future interests in any real or personal estate, whether the testator may or 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 to all rights of entry for conditions broken and other rights of entry; and also to such of the same estates interests and rights respectively and other real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.

(2) The last preceding sub-section and any corresponding previous enactment shall (without prejudice to the rights and interests of a personal representative) authorize and be deemed always to have authorized any person to dispose of real property or chattels real by will notwithstanding that by reason of illegitimacy or otherwise he did not leave an heir or next-of-kin surviving him.

6. No will made by any person under the age of twenty-one years shall be valid.W

(a) See Part V. of the Administration, and Pro­bate Act 1928 for a oase where an order of the Supremo Court as to the maintenance of widows And young children has the effect of a codicil.

(6) On the death of a testator who by his will had left his elder son a legacy of £50, and the balance of his estate, subject to a one-third life interest therein to his widow (until re-marriage), to his Infant son and daughter, there was found amongst his papers a document dated seven months later than his will and worded as follows:— " For going to fight for his country I acknowledge « debt due by my estate to my son of such a sum as will make him rank equally with my two

youngest Children in the distribution of my estate. This is an acknowledged debt and must be paid at the discretion of my executors." I t was signed and sealed in the presence of one witness only, and was retained by the testator without communicating its contents to his son. Held, that the document (whether a deed or not) was a testamentary disposition, and, not being validly executed, did not bind the executor.— In re Fenton, National Trustees, Executors, and Agency Co. of Australasia Ltd. v. Fenton, 1919 V.L.R., 470.

(c) See In re Vernon and re Elliott, noted to section 10.

No. 3803.] WILLS AUT 1928. 1367

No will made by any married woman shall be valid except such wait Ad wis a will as might have been made by a married woman before the com­mencement of this Act but nothing in this section shall limit the effect of the Married Women's Property Act 1928. . .

, 7. No will shall be valid unless it shall be in writing and'executed in manner hereinafter mentioned1"' (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 .(t)

Nor of a femt covert except as to separate property &c. 7 Will. IV. <fc 1 Vict. c. 28 8.8. Every will to be in writing and signed by the testator in the presence of two witnesses. /6. «. 7. lb. s. 9.

(a) See note (6) to section 3. (A) M. resided many years in Victoria, and

while there he executed a • will. He went to Japan, and died there. Before his death he executod a oodicil not attested by two witnesses. Held, that as he was domiciled in Victoria, the

•codicil was inoperative.—in the will of Marks, 3 A.J.R., 43.

The initials of attesting witnesses to a will are sufficient signatures when affixed for the purpose of attestation.—In re Dyer, 6 W.W. & a'B. (I.E. & M.), 4 3 ; N.C., 12.

Where the testator signed his will in the presence of two witnesses, but the witnesses did not sign in the presence of each other: Held, that the fact of the witnesses not signing in the presence of each other did not render the will ineffectual.—In the will of Foley, 5 V.L.R. (LP. & M.), 95.

To render a will valid it must be signed (or acknowledged) by the testator before the attesting witnesses affix their signatures.—In the goods of Kelly, 3 W.W. & a'B. (I.E. & M.), 80. And see next case.

A testator signed his will in the presence of one attesting witness. Some weeks after the testator, with that attesting witness, attended a t the house of another person, and informed him that the will which he then produced had been signed by him and the first witness; and, at the testator's re-quost, this person signed his name, as a second attesting witness in the presence of the testator and the previous attesting witness. Held, that it is necessary for effectual execution of a will that it should be signed or acknowledged by the testator beforo two witnesses present at the tiine of the signature or acknowledgment, who shall after that signature or acknowledgment subscribe their nnmes. Administration was granted as upon an intestacy.—In re Lacey, 6 W.W. & a'B. (I.E. &M.), 44; N.C., 42.

A document which was orderly and well-expressed as a will, was propounded as such. I t was signed by the testator and two witnesses, but no formal attestation clause was appended. Tho subscribing witnesses deposed that the de­ceased had met them one morning and told them that he was making his will and would like them to witness it. Later in the day he came to a store where they were, bringing with him the document, which they signed in his presence

• and in the presenoe of each other. They could not remember whether or not the deceased

signed it in their presence, nor could they say whether his signature was or was not upon the paper when they signed it. One of the witnesses swore that the deceased when he entered the store, asked for a pen and ink, which she handed to him, but which he did not take, saying, " No, you sign first." The signature of this witness appeared above that of the other witness. There was no evidence that the testator signed afterwards. The will appeared to have been written by the testator with one pen and ink and the three signatures appeared to have been made with another pen and ink.

Held, that the evidence did not negative the presumption that the document had been duly executed in conformity with this section, and that probate should be granted.—In re Ferreira, 1927 V.L.R., 90.

A testator signed his will in the presence of ono attesting witness. Another person came into the room, and the testator said to both—" This is my last will and testament; will you oblige me by wit­nessing it." Whereupon both signed in each other's and testator's presonce as attesting wit­nesses. Held, distinguishing In re Lacey {supra) that there was sufficient attestation to satisfy this Act.—In the will of Gray, 14 V.L.R., 207.

A. signed his will in the presence of B., who signed as attesting witness. A. crossed out his signature, and again signed the document in the presence of B. and C. C. signed his name at attesting witness to the second signature of A., but B. did not again sign.

Held, that the dooument was not properly executed as a will.—In the will of Burr, 1912 V.L.R., 246. .

A will purported to be attested by two persons one of whom was dead, and of the other no in­formation could be gained. There was no attesta­tion clause. Tho signature of testatrix was proved, also the signature of tho deceased witness, but the signature of the other witness was not proved. There was no proof that tho will was signed or acknowledged by the testatrix in the presence of the witnesses, or that the two witnesses wrote their names in the presence of the testatrix. Held, that probate should be granted.—In re Hutchins, 14 A.L.T., 223.

Where a dooument purporting to be a will, and in the handwriting of the person signing it as tes­tator, has no attestation clause, but the two per­sons whose names are subscribed, in writing

1368 WILLS ACT 1928. [19 GEO. V.

wnuActms 8. Every will shall, so far only as regards the position of the wjfen stature signature of the testator or of the person signing for him as aforesaid, to a wiii shaii be be deemed to be valid within the last preceding section if the signature is Tie vict. shall be so placed at or after or following or under or beside or opposite c 24 a. i. 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.(o> And no such will shall be affected—

(a) by the circumstance that the signature shall not follow or be immediately after the foot or end of the will; or

(p) by the circumstance that a blank space shall intervene between the concluding word of the will and the signature; or

apparently differing from that of the testator and from each other, as witnesses, are dead, such document may be capable of proof as a valid will. —In re Buckley, 24 V.L.R., 923.

A testator went to two persons, told them he had been making his will, and asked them to be witnesses. He produced a paper rolled up in such a way as not to disclose any writing it might contain; and, the paper being so rolled up throughout, the testator signed his name thereon in the presence of the two witnesses, who then signed their names on the paper. The witnesses did not see whether there was any writing above the testator's signature. The tostator afterwards gave the document to his wife to keep, and it was, after his death, found to contain, in his handwriting, what purported to be a codicil to his will.

Held, that in the circumstances it should be assumed that the contents of the codicil were already written on the paper when it was signed by testator and that i t was entitled to probate.— In the will of Betts, 1914 V.L.R., 302.

Where a codicil has been recorded in tho Com-missariet of Edinburgh, and the testator and witnesses were persons of education, and the estate was small, but there was no attestation clause, the court acted on the presumption of due execu­tion, and admitted the codicil to probate without the delay and expense which would be occasioned by requiring the affidavits ordinarily required in the absence of a proper attestation clause.—Be Boas, 6 A.L.R. (C.N.), 89.

A testator instructed his solicitor to prepare a will, which was duly engrossed and left with the testator for execution, and he was instructed as to the proper mode of execution. The document was not found at the testator's death, about eighteen years afterwards, and an application was made for probate of a draft of it, which was supported by an affidavit of one of the alleged witnesses (the other being then dead), who swore to facts which if be­lieved would have proved without doubt that the will was duly executed by the testator shortly after he received the engrossment. On. the hear­ing of an order nisi for probate, that affidavit was put in evidence, but the deponent being examined vivd voce swore that he did not know that the document he signed was a will except from what the other witness had told him some time after­wards ; that he did not see the testator sign ; that he did not see the testator's signature upon the will; and did not know whether the other wit­

ness signed or not. Held, thai, it appearing that the statements in

the affidavits were made on information and be­lief, there was no evidence that the will was duly executed, and therefore that probate should not be granted of the draft.

Statements made by a person after the alleged execution of a will by him are not admissible as evidence of such execution.—Gair v. Bowers, 9 C.L.R., 510.

Probate will be granted of a will ex facie regular. No affidavit by an attesting witness of the due

execution of such a will is necessary.—In the will of Monteith, 22 V.L.R., 60.

A document purporting to be a codicil to a will having been executed by tho testatrix in the presence of two witnesses, the witnesses went into an adjoining room and there appended their signatures. The circumstances were such that the testatrix might have seen the witnesses signing, but there was no evidence that she had in fact seen them doing so. Held, that the codicil could not be admitted to probate.—In the will of Callow, 1918 V.L.R., 406.

A testator made a will on a printed form. He wrote his will on the first page and on the third page, the second page being left blank save for some transverse lines drawn apparently to guard against unauthorized additions. He signed a t the bottom of the first page and again at the end of the will on the third page. There was the usual attestation clause on the first page, and here two witnesses duly signed as attesting the signature. They saw testator make both signatures, and signed after both were made. They did not think it necessary to sign on the third page. Held, that the whole will was sufficiently attested and should be admitted to probate.—In re McPhee, 1924 V.L.R., 394; and see also In re Gilbert, 1925 V.L.R., 662.

(a) Where a testator signed his will by inserting his name in the attestation clause: Held, that an affidavit of one of the attesting witnesses that be saw the testator write his name was insufficient. Both witnesses should depose to the fact, and that the testator wrote his name with the intention of signing his will.—In the will of Coleman, 4 V.L.R. (I.P. & M.), 22.

Where a testator signed his name in a blank intended for the date in the attestation clause of a will: Held, that the affidavits of both attest­ing witnesses, as to the execution of the will, should be procured, or, if that were impossible,

No. 3803.] WILLS ACT 1928. 1369

(c) by the circumstance that the signature shall- be placed among wau Act iou. 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

the affidavit of one of them, and an affidavit stating why that of the second cannot be ob­tained. The affidavits should state the circum­stances under whioh the testator signed, and the witness's reasons for coming to the conclusion that the testator intended, by putting his name in the blank to sign the will.—In the will of Gordon, 10 V.L.R. (LP. & M.), 25 ; and see In re Hoodie, 9 A.L.R. (C.N.), 49.

A will having been written at the request of a testatrix by her brother on a printed form, the testatrix in the absence of witnesses, wrote her name in the blank in the attestation clause. At th(it time the will contained nothing else in the way of a signature. Subsequently the will, with the testatrix's name so written in it, was produced by her brother to two persons who, in her presence and in the presence of each other purported to sign their names as witnesses, intending their signatures to be in attestation to the execution of the will. The testatrix then, in the presence of those persons signed her name below their signatures, opposite the attestation clause. There was no evidence that the name written in the attestation olause was. acknow­ledged by the testatrix as her signature to the will, nor that it was intended as a signature.

Held, that the will was not executed in com­pliance with the requirements of this section, and, accordingly, should not be admitted to probate.—In re Winter, 1926 V.L.R., 300.

Where the signature to a will was on the oppo­site side of the paper to the will, and was turned upside down, but its position was accounted for by the affidavits of the attesting witnesses : Held, that there seeming to be no ground for suspicion that any improper practice was resorted to to obtain the signature, the mere circumstance of the signature being placed upside down did not affect the question and probate granted.—In the goods of Campbell, 2 W. & W. (I.E. & M.), 119.

Where a witness to a will had signed his name before the last clause of the will, it was held suf­ficient, as this section docs not require that the signature of a witness should bo at the bottom of the will.—In re Hughes, 1 A.J.R., 2.

The requirements of this section are sufficiently complied with where the testator and witnesses sign their names across the will at right angles to the other writing.—In the will of Pople, 5 A. J.R. 80 ; and see In re Mathew, infra.

Where a sentence in a will is not completed at the same level as the signature of the testator but straggles below it, and it is shown to have been completed before signature, the signature may authenticate that part of the clause or sen­tence, which, by mere measurement, is below it. —in the will of Mitchell, 14 V.L.R., 699.

An intending testator meant to make his will by using a printed form of one page, which after the formal commencement, left a blank space for the operative dispositions of the will followed by the printed words " And I hereby appoint

execut ; In witness whereof I have hereunto set my hand this day of ." The attestation clause followed, leaving abundant space for the signatures of the testator and wit­nesses. The deceased filled up the formal head­ing, filled up part only of the blank space by dis­positions of his property, and filled up the portion of the form for the appointment of executors but instead of signing at the end of the will, signed above the appointment of executors, in the space following the disposing clauses. On ap­plication by one of the persons named in the disposing clauses as residuary legatee for admin­istration, c.t.a., treating the will as inoperative so far as related to the appointment of execu­tors as following the signature: Held, that the signature was inoperative as to the whole docu­ment, which was'not a valid testamentary paper. —In the will of Ryan, 14 V.L.R., 706.

Testator made his will on a printed form, on the outside of which was a printed indorsement of the words " Will of " with a space for the name of the testator. In this space the testator signed his name, the witnesses after­wards signing in the space at the foot of the will opposite to the attestation clause. The docu­ment consisted of one sheet folded in two, and when it was opened out the signature of the testator and the will appeared on the same side. Held, following in re Campbell, 1 W. & W. (LP. & M.), 119, where the signature upside down ap­peared opposite the foot of the will that probate should be granted.—In re McDonald, 15 A.L.T., 82. But see next case.

With the intention of making his will the deceased wrote out dispositions of his property on a printed form of will, on the outside of which was a printed indorsement showing a space for the name of the testator; in this space the testator wrote his name; preceded by " Mr." He did this in the presence of two persons, who signed as witnesses under the printed attestation clause appearing in the form. There was evidence by these witnesses indicating that the deceased intended the writing of his name thus to be the execution of the will.

Held (Mann, J.), that there was no due execu­tion of the document as a will, it not being ap­parent on the face of the document that the alleged signature was intended to give effect to the writing.—In re Dytrych, 1928 A.L.R., 11.

A would-be testator wrote what he wished to be his will on a small piece of paper. At the foot were the words " s igned" and "witnesses to

137U WILLS ACT 1928. [19 GBO. V.

wait AH 1915. (d) 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

signature." This document neither he nor witnesses signed. He showed it to two friends and said: " I wrote this for my will some months ago," and, taking a blank sheet of paper said : " I will sign this as I want to re-write my will on this, as t h a t " (referring to the first docu­ment), " is badly written." He then signed the blank sheet of paper, and the two friends then signed their names as witnesses to this signature on the blank sheet. He never filled in the blank sheet. Held, that there was no execution of the will.—in re Bookham, 15 A.L.T., 112.

A testator duly signed his name in the presence of A. and B., who signed their names as attesting witnesses. A. was testator's daughter and a beneficiary under the will. C , testator's medi­cal adviser, a few minutes after, came into the room, and being shown the will, pointed out that A.'s signature would prevent her taking her interest and suggested a re-execution. The testator thereupon acknowledged his signature, and C , in his presence, and presumably with his approval, erased A.'s signature, leaving nothing more of it than a few illegible marks. C. then signed his own name in the presence of testator, and B. did not sign a second time. Held, that the re-execution was invalid, B. not having re-signed, and that though the erasure of the name of one attesting witness would revoke the will if done with an intention of revoking it, yet where it was done with no such intention, there was no revocation, and the will was accordingly ad­mitted to probate as duly executed in the pre­sence of A. and B.—In re Murphy, 18 V.L.R., 786.

Extrinsic evidence is admissible to prove what the instrument was which the testator intended to be his will.

A testamentary document consisted of a sheet of paper containing on the first page a printed form of will. There was evidence that the second and third pages read in conjunction with the first page expressed the testator's intentions, and were written before the document was exe­cuted. The signatures of the testator and at­testing witnesses were at the bottom of the first page. Held (reversing the decision of Madden, C.J.), that the first page alone should not have been admitted to probate. Held, further, that probate, which had formerly been granted of the whole document should be revoked.—In the will of Huysmans, 21 V.L.R., 299, 576; and see i n re Woods, 23 V.L.R., 362; In re McCarthy, 1921 V.L.R., 526.

A document, the whole of which extrinsic evidence showed that the testatrix intended to be her will, was written on three pages of a piece of paper folded so as to make four pages, and on the first page there was a printed form of will which was filled in in writing. On the first page was written the word " over " in such a way as to indicate that something overleaf was to be incorporated in the will. The testatrix signed

the document at the foot of the first page. Held, that the word " over " was too indefinite to ren­der capable of identification that which the testatrix intended to incorporate, and that therefore the document which the testatrix in­tended to be her will was not signed " at the foot or end thereof," and should not be admitted to probate.—In re Wyatt, 21 V.L.R., 571.

A will was on a printed form and was executed a t the foot of the first page; the word " over " was written at the bottom corner of that page, and on the top of the third page a further testa­mentary disposition was written, apparently intended to form part of the will. I t appeared by affidavit that the whole of the writing was complete before the testatrix made her signature. Held, following in re Huysmans and in re Wyatt, supra, that the will was not signed at the foot or end thereof, and that there was, therefore, an intestacy.—In re Tangey, 2 A.L.R., 57.

Words were written by a testatrix on the back of a printed form of will consisting of a single sheet, before the execution of the will, and with the obvious intention of completing an unfinished sentence on the face of the will. The will was signed and attested at the foot of the front of the sheet only. Held, that the words on the back should be treated as in the nature of an interlineation, and the whole will (including the words on the back) was admitted to probate.— In the wiU of Bull, 1905 V.L.R., 38.

The provisions of a document, purporting to be the last will of M., and the attestation clause, all of which were type-written, almost filled the whole of one side of a page of paper, with the ex­ception of a wide margin. Very little room was left at the bottom of the page for the signatures of the testator and the witnesses, and in conse­quence thereof the signature of M. was placed lengthwise in the margin opposite and at right angles only to the earlier dispositions contained in the document. The signatures of the wit­nesses were also placed in the margin.

Held, that the document should be admitted to probate.—In the will of Malhew, 1906 V.L.R., 631 ; and see In re Pople, supra.

A will was written on a piece of paper folded to make two loaves, a portion being written on the first page, it then being continued on the third page which was not completely filled up, a blank being left at the foot of the page, and concluded on the second page, which contained the concluding clause of the will, the signature of the testator, the attestation clause, the signa­tures of attesting witnesses. Evidence was given by the person who drew the will to the effect that the blank was left at the foot of the third page because he thought there would not be room for the attestation clause and that there­fore he carried a few words of the will back to page two, so that the attestation clause would not appear by itself on that page. Held, that the

No. 3803.] WILLS ACT 195J8. 1371

(e) by the circumstance that there shall appear to be sufficient wm» Act 1916. 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 shall be operative to give effect -to any disposition or direction which is underneath or which follows i t ; nor shall it give effect to any disposition or direction inserted after the signature shall be made.

9. No appointment made by will in.exercise of any power shall Appointments bo valid unless the same be executed in manner hereinbefore required. executedVke And every will executed in manner hereinbefore required shall so far other wiiis&c. as respects the execution and attestation thereof be a valid execution 7 v*n j v & of a power of appointment by will, notwithstanding it shall have been I vict. o. 20». io. expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. „. , .

^ Soldiers ftnd mariners' wills.

10. (1) Any soldier.being in actual military service,(o)or any mariner {*• *• J°-or seaman being at sea, may dispose of his personal estate whether iriiMiPar under the age of twenty-one years or. not as he might have done before 19181.3." the coming into operation of this Act or any corresponding previous Q°™Pv7

cfM enactment. s. 1.

_, _ , , .,. . , . -, ., T . • Extension to (2) The last preceding sub-section and the corresponding previous members of

enactments extend or shall be deemed to have extended— In certain

(a) to any member of His Majesty's naval or marine forces or nnii to persons the naval forces of the Commonwealth of Australia not ^''service only when he is at sea but also when he is so circum- J^^X", , ln stanced that if he were' a- soldier he would be on active August ieu. military service ; ' ib.'s! lb.««. 4, 0.

2.

will was signed at the foot or end thereof, and executed in conformity with the Wills Act, being it was admitted to probate.—In the will of Hall, attested by one witness only. In 1912 she duly 1910 V.L.R., 14. executed a will, and in 1915 8he duly executed a

The court will grant probate of a will signed by codicil. The codicil was written on the back a testator in the attestation clause where both ' of the informal will of 1909. On motion for witnesses are dead and no evidence is forthcoming probate of the three documents: Held, that in to explain why the signature was in the attesta- the absence of any specific reference or discover-tion clause.—In re Meikle, 25 V.L.R., 309. able intention in the codicil to incorporate the

Although, where part of a devise or bequest is will of 1909, only the regularly executed will of written below the signature, such part may be 1912 and the codicil should be admitted to included in the grant of probate if its omission probate.—In the will of Duncan, 1916 V.L.R., 1. would mako the will unintelligible, a new sentence (a) As to the meaning of " in actual military or a new disposition altogether, beginning below service," see In re Vernon, 1915 V.L.R., 699; the signature, will be excluded.—In re Palmer, In re Elliott, 1917 V.L.R., 322. 11 A.L.R., 186; 27 A.L.T.. 4. Declarations of a deceased soldier on actual

A testator duly executed a will on the front military service are not admissible to prove the page of a double sheet of foolscap leaving his making of a will by him. The doctrine of Sugden property to certain persons " as per enclosed my v. Lord St. Leonards (1876), 1 P.D.', 154, should last will and testament." Across the second and not be extended.—In re Butcher, 1920 V.L.R., 166. third pages on the inner fold of the foolscap the In order that a document not executed in testator had in a writing therein called " My last accordance with the Act may have effect as a will and testament " made a complete disposition soldier's will, it must appear that the document of his property amongst the persons mentioned was intended to be a testamentary disposition, in the will. Held, that both the will and the A mere memorandum of projected dispositions by writing on the fold should be admitted to probate. will is therefore insufficient.—In re Edgar, 1010 —In the will of Wilkinson, 1915 V.L.R., 77. V.L.R., 683.

A testatrix made a will in 1909 which was not

1372 WILLS ACT 1928. [19 GEO. V.

Will* (War Service) Act IB 18.

Power to appoint testamentary guardian. Ib. s. 6. 7 Will. IV. & 1 Vict. c. 26 s. 4.

(b) to any person who was engaged on war service as if such person were a soldier " being on actual military service " and for the purposes of this sub-section a person shall be deemed to have been engaged on war service if in connexion with the war commencing in August One thousand nine hundred and fourteen—

(i.) he was engaged whether in or outside Victoria on naval or military service with His Majesty's naval or military forces or with the naval or military forces of the Commonwealth ; or

(ii.) he was engaged outside Victoria on any work of any Red Cross society or ambulance association or any other body with similar objects; or

(iii.) he was a prisoner of war in the enemy's country or interned in the country of a neutral power.

(3) When any person has died or dies on or after the fourth day of November One thousand nine hundred and eighteen having made a will which was or is or which if it had been a disposition of property would have been rendered valid by the preceding sub-sections of this section or any corresponding previous enactment any appointment contained in that will of any person as guardian of the infant children of the testator shall be of the same force and effect as if made in a will executed in the ordinary way.

publication not 1 1 . Every will executed in manner hereinbefore required shall be i7«i/r«Ui9i5 v a l id without any other publication thereof.

ib. s. i3. 12. If any person who shall attest the execution of a will shall at win not void by the time of the execution thereof or at any time afterwards be in-witness. competent to be admitted a witness to prove the execution thereof, such it. s. i2. will shall not on that account be invalid. Ib. s. 14. Gifts to an 13 . If any person shall attest the execution of any will to whom t^be'rofd"'"083 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 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.<a>

Ib. i. 13. Ib. s. 15.

(a) Where a will was duly signed by two wit­nesses, and afterwards a legatee, who was also an executor, signed it under a mistaken view that it was necessary for him to do so as executor, probate granted, omitting his name as witness from the probate copy.—In the will of Bannister, 3 V.L.R. (LP. & M.), 114; and see In re Murphy, 18 V.L.R., 786, in notes to section 8.

By a will which was witnessed by the executor a testator devised and bequeathed all his property to a person who predeceased him. Semble, had

an intention that the executor should not take beneficially not been indicated the fact that the executor witnessed the will would not have prevented him from taking, inasmuoh as his interest would arise by operation of law.—In re Young, Brown v. Hansford, 1923 V.L.R., 6.

A testator having made a will containing several bequests and dispositions, made a later will in which he repeated all those bequests and dispositions, but added an extra gift to one of his grand-nephews. By the later will he appointed

No. 3803.] WILLS ACT 1928. 1373

14. In case by any will any real or personal estate shall 'be \ruu A* wis charged with any debt or debts and any creditor or the wife or husband '^it0I

of any creditor whose debt is so charged shall attest the execution of attesting to be such will, such creditor notwithstanding such charge shall be admitted ^neaT1 a

a witness to prove the execution of such will or to prove the validity or ' win. iv. & T J - X xi. jy • lVlct .c26i .16 .

invalidity thereof. 15 . No person shall on account of his being an executor of a Executor to bo

will be incompetent to be admitted a witness to prove the execution of w1tn'"sed &

such will or a witness to prove the validitv or invalidity thereof. /&- «• is. " lb. B. 17.

16. Every will made by a man or woman (except a will made in win to be exercise of a power of appointment when the real or personal estate ,rnarria eby

thereby appointed would not in default of' such appointment pass to n.». IB. his or her executor or administrator or the person entitled under Part I.lb-8-18-of the Administration and Probate _ Act 1928) shall be revoked by his or her marriage(o) other than a marriage in contemplation of which a will made after the commencement of this Act is expressed to be made, in which last-mentioned case such will shall not be revoked by such marriage.

17. No will shall be revoked by any presumption of an intention Nowmtobe on the ground of an alteration in circumstances. presumption.

i t . «. 17. 18. No will or codicil or any part thereof shall be revoked other- Ib-8-m

, i • In what cases W i s e t U a i l wUlsmaybe

, , v « . - . revoked.

(1) as aforesaid; or • n.s.is. (2) by another will or codicil executed in manner hereinbefore n>- »• 2°-

required ;(6> or ' (3) by some writing declaring an intention to revoke the same

a,ud executed in the manner in which a will is herein­before required to be executed;(c> or

the same executors ,as in the previous will, and object the exercise of the power of appointment, he'inserted therein a clause revoking all previous —In the will of Lilley, 8 V.L.R. (LP. & M.), 32. wills. A married woman was named in both (c) By instructions for a will executed as re-wills as a legatee of a sum of £600. Her husband quired, testator directed certain legacies to bo witnessed t i e last will, the legacy to her thus given to G. and Y. By a letter of the same date falling under this section. Held, that the doctrine and similarly executed and addressed to the of dependent relative revocation did not apply, solicitor to whom such instructions were given, and that the revocation of the earlier will was the testator expressed his desire that 6 . and Y. complete and effectual.—Judgment of Mann, J. should receive the sums which he had directed to (1923 V.L.R., 405) reversed; In re Bourke, 1923 be given to them as legacies, and requested the V.L.R., 48.0. solicitor to pay to them, out of certain moneys due

(a) A testatrix having exequted a will of real to him, such- sums, and " if thoy should reoeiye and personal estate married, and, by ante-nuptial the amounts prior to my death such legacies as settlement, settled the property, reserving a I have directed must be revoked by a codicil to power to. appoint, by will. She subsequently my will if same is executed by me." These sum9 exeouted a confirmation of the will. Held, that were paid to G. and Y. in the testator's lifetime, probate might issue of the will, and of the oon- Held, that the letter came within this sub-firmation as a codicil.—In the will of Patchell, 4 section and operated as a conditional revocation V.L.R. (LP. & M.), 62. of the legacies, and, the condition having been

(6) A testatrix exeouted a will, giving all her fulfilled, that therefore it must be annexed to the property to her , husband, and subsequently grant of administration. executed another will appointing among her The court directed that the grant should not bo children • certain real estate in Tasmania over operative until G. and Y. had been served with which she had.a power of appointment, which notice of the court's intention to annex the letter second will contained a general clause revoking to the grant of administration.—In , the will and all former wills. Held, that the second will did estate of Johnston, 1912 V.L.R., 66. not revoke the first will, as it had only for its A testatrix,; having .duly executed a will and

1374 WILLS ACT 1928. [19 GEO. V.

wau Act 1915. (4) by the burning tearing or otherwise destroying the same(a) by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

No alteration in 19. No obliteration interlineation^ or other altel•ation(':, made in Jn 'effeotu'Sess a n v w ^ a ^ t e 1 ' t n e execution thereof shall be valid or have any effect executed as a (except so far as the words or effect of the will before such alteration Tb.e. 19. shall not be apparent) unless such alteration shall be executed in like 7 wui. iv. & manner as hereinbefore is required for the execution of the will. But iviot. e.2Bs.2i. ^ W-JJ ^ ^ s u t , j 1 alteration a s p ^ thereof shall be 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.

20 . No will 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 sarne.(d> 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.

How revoked will shall be revived. lb. I. 20. lb. s. 22.

given it to her solicitor, about three months afterwards signed a document in the form of a will and purporting to revoke all other testa­mentary dispositions in the presence of one witness, who also signed it, and on the same day she wrote to her solicitor asking him to send her will to her as she wanted to look it over and make some alterations. On the next day a second person signed the document above referred to in her presence as a witness. A few days afterwards the original will was received by the testatrix from her solicitor, and she sent to him the other document with a letter describing it as "a new will." Shortly afterwards she died. The original will could not be found among the effects of the testatrix. Held, that the proper inference from the facts was that the testatrix had destroyed her original will, not with the intention of revoking it, but in the belief that she had already revoked it by the supposed new will, and therefore that as the supposed new will was not duly executed probate was properly granted of a draft of the original will.—Lippe v. Bedderwick, 31 C.L.B., 148.

(a) The cancellation by the testator of his own name and those of the witnesses to a testamentary

' writing, without obliterating them, is not such a destruction of the instrument as is required by this Act; and a memorandum at the foot of the instrument signed by witnesses, but not by the testator, stating that it had been revoked by the testator in their presence, will not operate as a revocation.—In the will of Barrett, 2 V.L.E. (LP. & M.), 98.

A very slight tearing across a substantial and important part of a will, e.g., the signature, where there is evidence of an intention to revoke, will amount to a revocation of the will. If a will U

revoked, the court, though all persons interested in the event of an intestacy consent, will not grant probate thereof.—In re Barker, 13 A.L.T., 167.

(6) Where, after execution of a will, an inter­lineation was made, which was attested by the witnesses to the will, but not subscribed by the testator, the court refused to grant probate to the will as altered ; but granted probate without the alteration.—In re Delves, 1 V.L.R. (LP. & M.), 33.

(c) A testator, partially blind and physically weak, gave instructions to his intended executor for the drawing up of his will. The executor embodied these instructions in a document which he read over to him, no one else being present, according to the testator's desire. The executor then prepared a will which, after execution was identioal with the previous document, except that it had the testimonium and attestation clauses and the signatures added, and that there was an immaterial alteration in the description of the interest taken by the testator's widow. The will was formally executed by the testator, who signed by his mark, but it was not read over to him. •Held, that probate should be granted.—In the will of Amies, 4 A.L.R., 244.

(d) Semble, the execution of a will simply appointing executors " to my will" would operate as a revival of a revoked will.—In the will of Lilley, 8 V.L.R. (LP. & M.), 32.

When a revocation is coupled with an intention of substituting another testamentary disposition for the one revoked, and the substituted disposi­tion is for any reason not effectual, then the revocation is not to be given effect to.—In re Hunt, 16 V.L.R., 748.

2To. 3803.] WILLS ACT 1928. 1375

PART II.—CONSTRUCTION OF WILLS.

2 1 . No conveyance or other act made or done subsequently to wan Act im the execution of a will of or relating to any real or personal estate w*^ a devfa therein comprised (except an act by which such will shall be revoked not to be as aforesaid) shall prevent the operation of the will with respect to InSplmtive &e. such estate or interest in such real or personal estate as the testator 7 wai. iy. & shall have power to dispose of by will at the time of his death. 1ct.c2tf8.23.

22. Every will shall-be construed, with reference to the real estate A win to speak and personal estate comprised in it, to speak and take eifect as if it had ofThVtesSoi! been executed immediately before the death of the testator, unless a n. •. 22. contrary intention shall nppear by the will.1"' This section shall apply ">. s. 24. to the will of a married woman made during coverture whether she is 'or is not possessed of or entitled to any separate property at the time of making it, and such will shall-not require to be re-executed or republished after the death of her husband. • •' • "

23 . Unless a contrary intention appears by the will, such real what a estate or interest therein as shall be comprised or intended to be com- shauSicie!'86

prised in any devise in such will contained which shall fail or be void n.«. 21. by reason of the death of the devisee in the lifetime of the testator, or n>- »• 25. by reason of such devise'being contrary to law or otherwise incapable of taking effect, shall be included in the residuary, devise (if any) contained in such will/*1 '

24. A devise of the land of the testator or of the land of the What estates a

testator in any place or in the occupation of any person mentioned in fhan^dud'e? his will or otherwise described in a general manner and any other ib.». 24. general devise which would describe a leasehold estate if the testator Ib-3-26-had no freehold estate which could be described by it shall be construed

(a) A testator made a will ten days before the at the absolute discretion of my said executor, passing of The Intestates Act 1864 (No. 230), and and out of the proceeds of such sale calling in 38 days before it came into operation, and died and conversion and such ready money as afore-about eighteen months after its coming into opera- said to pay," &0. Held, that the words gave tion without altering the will Held, that he and the executor a discretion as to the mode and his advisers must be taken to have known of the time of conversion, and made a joint stock of alteration in the law, and that the will was to be the proceeds of both personalty and realty, so construed according to the new law in force at that the subsequent direction as to the disposal the time of his death.—OemmeK v. Oemmett, 18 of "the rest residue and remainder of my said V.L.R., 781. personal estate" included the whole of the

A testator by will made in 1902 devised to his residuary estate of the testator.—In the wiU of wife " my house and land in U.-street, Coburg." O'Driscol, The National Trustees Co. Ltd. v. The will also contained a residuary gift of real and O'Connell, 24 V.L.R., 482. personal estate. At the time of making his will A testator devised his " freehold land and the testator owned a house and land, No.' 44, property situate in, &o. . . formerly known as TJ.-street, Coburg. In 1906 he purchased another number " so-and-so to certain individuals. The house and land, No. 46,. U.-street, Coburg. In buildings on this land had been insured, by him 1912 he sold No. 44, but at his death in 1915 against fire, and after the making of his will were remained possessed of No. 46 and of no other destroyed by fire. He obtained the insurance house or land in U.-street, Coburg. money from 'the insurance company, and inten-

Held, that there being nothing in. the will to ded to rebuild the premises, but before he had show a contrary intention, the will must be entered into any contraot for so doing he died, construed to speak as, from the date of death, Held, that the devisees were not entitled to the and that the house and land, No.. 46, passed insurance moneys nor were the exeoutors bound under the devise to the widow.—In the will of or justified in expending them in re-building.— Smith, Watson v. Smith, 1916 V.L.R., 540. The Trustees, Executors, and Agency Company v..

(6) A testator devised and bequeathed all his Scott, 24 V.L.R., 622. real and personal estate to an exeoutor "upon See Flanagan v. The National Trustees, <fcc. trust to sell call in and convert so much thereof Coy., 32 C.L.R., 468. . as shall not consist of ready money into money '

1376 W I L L S ACT 1928. [19 GEO. V.

wau AH ins. to include the leasehold estates of the testator or his leasehold estates or any of them to which such description shall extend (as the case may be) as well as freehold estates, unless a contrary intention appears by the will.<°>

What real or 2 5 . A general devise of the real estate of the testator or of the rabjecuoa**8 rea^ estate of the testator in any place or in the occupation of any ofapMiStmlnt P e r s o n mentioned in his will or otherwise described in a general manner in the testator a shall be construed to include any real estate or any real estate to which bcqSStshalf" such description shall extend (as the case may be) which he may have include. power to appoint in any manner he may think proper, and shall operate 7 wui. iv. & a s a n execution of such power unless a contrary intention appears i vict. c. 26 s.27. hy the will. And in like manner a bequest of the personal estate of

the testator or any bequest of personal property described in a general manner shall be construed to include any personal estate or any personal estate to which such description shall extend (as the case may be) which 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 intention appears by the will/ ')

2 6 . 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 appears by the will/")

How a devise without words of limitation shall be oonstrued. lb. S. 26. lb. s. 28.

(a) A testator having freehold land and lease­hold land at Coburg devised all his " real estate a t Coburg." Held, that no contrary intention appearing on the face of the will, such devise carried the leasehold as well as the freehold land. —Heater v. The Trustees, Executors, and Agency Company Limited, 18 V.L.E., 509.

An interest held by a lessee from the Crown under The Land Act 1869, section 20, passes by a devise of his real estate. A gift by will to named children of the testator " and any other child that may be born during my lifetime " does not enure to the benefit of an illegitimate child born after the date of the will. The circumstance that the named children as well as the one sub­sequently born are all children of a woman who, at the date of the will, was living with the tes­tator, does not affect the construction. A tes­tator directed that when his youngest child attained the age of 21 the trustee of his will should sell his property and equally divide the proceeds among his children, naming them. After his death and before the youngest child attained the age of 21, one of the named children died. Held, that the gift to her did not vest until all the children attained the age of 21, and that there was an intestacy quoad the amount of her share.—Joy v. The Curator of the Estates of Deceased Persons, 21 V.L.R., 620.

(6) A testatrix who was a beneficiary under a settlement and had under it a power of appoint­ment by deed or by will, made no appointment by deed, but by her will, in which the power of ap­pointment was not mentioned, after providing for payment of her debts, she bequeathed several lega­cies, gave her jewellery to her mother, and be­

queathed all else that she might leave at the time of her death to her husband. She also appointed an executor, Held, that the will was, under section 25 of the Wills Act 1890, an exercise of the power of appointment, and was to be regarded as an appointment, to the executor upon trust to carry out the provisions of the will, and that, therefore, the trustee of the settlement should hand over the trust property to the executor to be administered by him.—National Trustees, Execu­tors, and Agency Company Limited v. Crooke, 24 V.L.R., 353; and see In re Srodie, 26 V.L.R., 562.

(e) A devise to a wife for her use and enjoyment while she remains the widow of the testator is a devise with words of limitation, and is, there­fore, not within this section.—Trustees, Executors, and Agency Company Limited v. Wharton, 19 A.L.T., 20.

A testator left a will in the following terms : —" After payment of all just debts, funeral and testamentary expenses, I give, devise and be­queath unto my beloved wife all my real and personal estate of whatever kind for her sole use and benefit, and a t her death the residue to be equally divided amongst any of my children who shall then bo living." Held, following Sherrat v. Bentley, 2 M. & K., 149, that the wife took a life estate only; In re Bidgway, Sutherland v. Ridgway, 26 V.L.R., 254.

By his will a testator devised and bequeathed all his real and personal estate "unto my wife, but in the event of her marrying she forfeits all olaim to the said estate which then becomes the property of my children."

Held, that the widow took the whole estate or interest in all the property, with a gift over to

No. 3803.] W.ILLS ACT J 928. 1377

27. In any devise or bequest of real or personal estate the words wuit Act im "die without issue" or "die without leaving issue." or "have no issue" H0"'thewonla or any other words which may import either a want or failure of issue ."di«*'thl

<™t. of any person in his lifetime or at the time of his death or an indefinite without leaving

failure of his issue shall be construed to mean a want or failure of issue ^"Lue" Bhaure

in the lifetime or at the time of the-death of such.person and not an beconstrued, indefinite failure of his issue, unless a contrary intention appears J victic^e* 29. by the will by reason of such person having a prior estate tail or of a preceding gift being without any implication arising from such words a limitation of an estate tail to such person or issue or otherwise : Pro­vided that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift are born, or if there are no issue, who live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.(0)

28. Where any real estate is devised to any trustee Or Devise to

executor, such devise shall be construed to pass the fee-simple or other ex utoV the whole estate or interest which the testator had power to dispose of n.«. 28. by will in such real estate, unless a definite term of years absolute or ">• "•30-determinable or an estate of freehold shall thereby be given to him , expressly or by implication. ,

29. Where any real estate ip devised to a trustee without any Trustees under express limitation of the estate to be taken by such trustee and the SevlseTo tote beneficial interest in such real estate or in the surplus rents and profits the ,ee-thereof is not given to any person for life or such'beneficial interest is j£*'gi' given to any person for life but the purposes of the trust may continue beyond the life of such person, such devise.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 such real estate a,nd not an estate determinable when the purposes of the trust shall be satisfied.

her children in the event of her re^marrying.— A.L.R., 39; 15CL.R. , 510.' ' In the will of Hoare, Quintan v, Hoare, 1908 . A testatrix devised land' to trustees upon trust V.L.R., 369. • >, • to pay the rents and profits to her daughter for

A testator devised and bequeathed all his real life and after the daughter's death to hold.the and personal estate to his wife " to be' used by land ".upon trust for her issue' and if more than her as sho may think proper for the benefit of one in equal shares." herself and our children." Held, that the rule in Shelley's <-ase .applied,

Held, that no trust was created, and the wife notwithstanding the use of the words of distribu-took an absolute interest in the estate.—In the tion, and that the. daughter therefore took an will of Lawn, The. Ballarat' Trustees, Executors, estate in fee simple.—In the-will of O'Leary,' and Agency Company \ Limited v. Perry, i911 Bullen v..O'Leary, 1916 V;L.R., 297. V.L.R., 318. • . By his will made in 1900 testator devised his . 'A testator by his will, devised alLhis real estate real estate to trustees upon trust as to certain

to his wife "for her use absolutely until the specified land for his daughter for life and upon youngest child shall have reached the age of 21 her-death upon trust for' "he r lawful issue and years." The will contained no other disposition if-more than one as tenants in common," with a of his property. ' . . gift over in the event of there being " no lawful • Held, that there was an intestacy as to tho re- issue." Held,' that this section operated so as to maindor on the youngest child attaining 21.< • pass the fee-simpleV to the issue of the daughter ;

Per Higgins, J.—The. testator's wife did not that therefore the rule in Shelley's case did not take the fee-simple under section 28 of the Wills % apply, and'oonseqnently that the daughter took Aot.of Western Australia (corresponding with this only a life estate, and on her death without issue section) for a contrary intention appeared. The the gift over took effect.—Decision of Supreme words "un t i l the .youngest child shall have Court of Victoria In re Cust, Glasgow v.Campbell attained the age of 21 ". qualified- the gift to her, (1919 V.L.R., 221) affirmed; Campbell v. Glasgow, and.she took an estatefor life determinable before 27 C.L.R. 31'; death upon a previous event.—Pead v. Pead, 19 .(a) See In re Cust, 1919 V.L.R., 221, 693.

VOL. v 87

1378 WILLS ACT 1928. [19 GEO. V.

wuit Act 1915 3 0 . Where any person to whom any real estate is devised Devises of f ° r a n estate tail or an estate in quasi entail shall die in the lifetime of estates tan shaii the testator leaving issue who would be inheritable under such entail "wuHv. & a n ( i a n v s u c n issue is living a.t the time of the death of the testator, iviot. 0.26 8.82. 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 appears by the will.(a>

Gifts to children 3 1 . Where any person being a child or other issue of the testator who'ielvlfissle t° whom any real or personal estate is devised or bequeathed for totofo^s'death a n y estate or interest not determinable at or before the death of such shaii not lapse, person dies in the lifetime of such testator leaving issue, and any ib.». 3i. such issue of sucii person is living at the time of the death of the ib. s. 33. testator, such devise or bequest shall no.t 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/6 '

(a) A testator devised specific properties (X, Y, and Z) to his'sons, A., B., and C. respectively, with a declaration that each portion should vest at 21 and that, in the meantime and until such vesting, the trustees should have power to apply the income in maintenance; and, " moreovei that in the event of the death of either " of them " previous to obtaining possession " of the portion given to them, " or, after obtaining possession, if without heirs, the said portion or portions should bo divided equally between the survivors or survivor." A. and B. both died in the testator's lifetime ; the former unmarried and intestate; the latter intestate, and leaving an only child, a daughter. Held, that the sons took respectively estates in tail general with cro«8 remainders to survivors ; that under the Wills Act B.'s daughter took an estate tail in the land devised to her father; and that C., as survivor of the sons, took the estate devised to A.—McGregor v. McCoy, 1 V.L.R. (E.), 162.

(6) " The doctrine laid down in Winter v. Winter, 5 Hare, 306, can hardly be regarded as settled, i.e., that this section gives effect to devises which would have been void altogether for want of objects as well as to those frustrated by the removal of the object."—Per Molesworth, J., Broomfield v. Summerfield, 2 V.L.R. (E.), 174, at page 178.

A testator left the residue of his real and per­sonal property to trustees for conversion and investment, and directed them, at the expiration of ten years from his death, to divide it equally amongst 32 persons named; provided that their respective shares were not to be paid to them till they attained 21, or, being females, married; and if any person died before. being entitled to receive payment of such share, leaving issue of his body, his share should go to his issue, in equal shares ; if there should be no such issue, his share should go to the survivors of the 32 in equal shares. One of the 32 was dead to the testator's knowledge when the will was executed. Held, that there was an intestacy as to her share at the expiration of ten years. Another, of age when the testator made his will, died unmarried within ten years, leaving a will. Held, that his share went to the survivors of the 32. Another died within ten years, leaving issue. Held, that ber

share went to her issue. Another died, within ten years, unmarried, and under age. Held, that her share went to the survivors.—Hayes V. Wilson, 10 V.L.R. (E.), 226.

Where a bequest is made to the testator's children without naming them, one of whom, at the date of the will, has died leaving issue, such issue will take nothing under the bequest, for this section applies only to cases of a strict lapse.— Hurst v. Hurst, 12 V.L.R., 93.

Semble, the effect of this section is to vest the legaoy to the deceased legatee in the personal representative of such legatee—not to substitute the issue of the legatee for the legatee.—Cameron v. Read, 13 V.L.R., 849.

A testator by his will gave all his real and per­sonal property to his widow for life and he directed that after her death two of his sons should collect the rents of all his estate, and after payment of all expenses " the balance left to be equally divided between all my children living, monthly. The whole or a portion of the estate may be sold with the consent of the majority of my children " (naming all who were living at the date of the will).

One of the children so named died before the testator, leaving issue, and another died after the testator, but before the testator's widow.

Held, that the word " rents " should be con­strued to mean the whole income of the estate; that the gift of such income without limitation carried with it the gift of the corpus ; and that on the death of the widow all the children named in the will then living and the representatives of the ohildren therein named who had died were entitled to equal shares in the corpus of the estate as tenants in common.—In the will of Baker, Baker v. Hutchinson, 1905 V.L.R., 416.

A testator, by his will, made in 1892, left his residuary estate equally between his three sons. One of the sons, W., died in 1902, leaving issue who survived the testator. In 1903 the testator executed a codicil referring to the death of W., and making certain consequential alterations in his will, but not referring to the gift of residue, and otherwise confirming his will.

Held, that this section applied.—Davits v. National Trustees Co.* 1912 V.L.R., 397.

No. 3803.] -WILLS ACT 1928. 1379

32 . In the construction of the will of any person who has died or wait Act 1915 dies on or after the thirty-first day of January One thousand nine direction to hundred a nd five a general direction (whether to his executors or not) pay debts not to that his debts or that all his debts or that his funeral testamentary or charge™eai ° other expenses or all or some of them shall be paid shall not (whether e,tet8-real estate is devised or not and if devised whether to his executors or not) be deemed to charge the same upon his real estate or any part of it in exoneration of specific bequests or any other personalty unless au intention so to charge the said debts or all the said debts or the said expenses or all or some of them is further declared in such will expressly or by necessary implication.

3 3 . In the construction of the will of any person who has died or Personal estate dies on or after the twenty-eighth day of September One thousand th're'iand nine hundred and fourteen unless a contrary intention appears by the ^ y ^ J " , will a devise of real estate for or a direction to sell or a specific debts &>. appropriation of real estate for the payment of debts funeral orIb- '•ss-testamentary expenses or .legacies shall of itself and without words expressly exonerating the general .personal estate be sufficient to .' • exonerate the general personal estate as the fund primarily applicable therefor.

34 . In any will coming into operation after the commencement of co»tingent this Act a contingent or future specific'devise or bequest of property ^amentwy whether real or personal and a contingent residuary devise of freehold fnt^n^]^01* land and a specific or residuary devise of freehold land to trustees income, upon trust for persons whose interests are contingent or executory ™voB6vi°'T* shalL subject to the statutory provisions relating to accumulations carry the intermediate income of tha<t property from the death of the testator except so far as such income or any part thereof may be otherwise expressly disposed of. •

3 5 . The judges of the Supreme Court may from time to time make Prescribed rules prescribing forms to which a testator may refer in his will and ie?oren™in give directions as to the manner in which they may be referred to but wills-unless so referred to such forms shall be deemed not to be incorporated Ib""'179" in a will.

SCHEDULE.

Number,of Act. Title of Act..' Extent of Repeal.

2749

2954

Wills Act 1915 ' ...

Wills ( War Service) Act 1918 ...

So much as is not other-wise i epealed.

The whole.

Section 2.