“Contrary intention” in succession law and will-making

Contrary intention are words used in Australian succession legislation on wills and the administration of deceased estates. Some examples are given below of the range of matters where the law allows for a willmaker to express a contrary intention in their will to the statutory rule.

Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen.  A contrary intention may be expressed in a will or appear in a will.

The meaning of a contrary intention in a will

The Full Court of the Supreme Court of Victoria, has said on the meaning of a contrary intention that “It will be a question in each case as to whether a contrary intention is disclosed in the will.”¹

Fundamental to succession law in Australia is the idea of freedom of testation.

Freedom of testation is part of the common law passed on from England upon settlement.  Testamentary freedom in its purest ideological sense meant that a person was entitled to dispose of their property as they saw fit.

However as society and community expectations changed, various problems arose so that over the years legislation was amended ..statutes modified the common law and testamentary freedom.

As mentioned above there are various provisions in succession legislation of the state and territories where the statutory rule can be displaced by the willmaker expressing something different or contrary, to that rule in their will as for what they want.

The legislative provision will typically say “This section does not apply if a contrary intention appears in the will.’

Statutory provisions where a contrary intention is provided for

Some examples of the various matters where state and territory legislation may provide for a willmaker to express a contrary intention to the law include the following.  Note that there are differences in the provisions of wills and succession legislation across jurisdictions.

• The survivorship rule for beneficiaries before they can take;
• When a will takes effect;
• When a gift fails;
• What a disposition of land includes;
• How gifts of property to issue are to operate;
• What a gift of property is to include, whether passes without any limitations;
• How gifts are not to fail because issue died before the willmaker.

See for example the contrary intention provided for in the survivorship rule under section 35 of the Succession Act 2006 (NSW) where beneficiaries must survive the testator for 30 days.

Sections in State and territory succession legislation which provide for a contrary intention can be found by searching the relevant state or territory statute – find them in this table of legislation.

When a contrary intention is not clear in a will

If an adult child has died before their parent, and that adult child has left children of their own, this can be a problem when the parent (grandparent) dies.

In a recent case the NSW Supreme Court held that words in a deceased person’s will  constituted a contrary intention to what the law stated and how the relevant statutory section operated.²

The applicable law to this will was section 29 of the Wills, Probate and Administration Act 1898, (the WPA Act), since repealed.  It provided that:

“..where a child of a testator dies during testator’s life time, leaving issue, who survives the testator, the gift will 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 issue to be decided

The issue before the court was as follows. A testatrix was pre-deceased by one of her four children. That deceased child was survived by his spouse and one child.

The deceased’s will said:

“I give the whole of my estate equally between such of my children as survive me in equal shares as tenants in common”.

The issue was whether the words in the will, “between such of my children as survive me in equal shares as tenants in common” constituted or expressed a contrary intention, so as to negative the operation of the statutory provision, s 29 of the WPA Act (NSW).

The Court found that they did.   And further that the executor was entitled to distribute the estate without regard to interest of the deceased’s pre-deceased issue.

The Judge said that:

…both the words “such of my children as survive me” and the words “in equal shares in tenants in common” in the testatrix’s will in this case both indicate contrary intention for the purposes of WPA Act, s 29.

After extensively reviewing the authorities, academic material and opposing arguments the Court noted that an earlier Queensland case¹  on the issue had been followed or approved in several cases in New South Wales, Queensland and Victoria.  The principle for which that case stands as authority the Court said was that:

.. it was sufficient for there to be an indication in the will as to who would take in the event of issue pre-deceasing the testator and it was not necessary to go to the lengths of expressly dealing with what is to happen to the property if the legatee pre-deceased the testator leaving issue who survived the testator.

Information on the meaning of issue and children can be found here and here.

Takeaway:

The case is instructive.  It is a reminder of the importance of reviewing and updating a will following the occurrence of life events.   The death of a beneficiary, of a child is traumatic beyond words for a parent.  Reviewing whether their own will still accorded with their intentions in the changed circumstances would be difficult, but important.  

Secondly it illustrates the complexity of succession law.  Dealing with a life event by amending an existing will by the use of a codicil may not be effective. Often it is preferable to make a whole new will.  The last thing anyone wants is for unintended consequences of testamentary clauses to be resolved by an expensive construction suit before a court. 

1. Bassett & Ors v Hall [1994] 1 VR 432
2. Longmore v Longmore & Ors [2018] NSWSC 90

The NSW Supreme Court is bound to follow a decision of an intermediate full court even if in another state, see High Court authority.  The High Court of Australia has said that since there is a common law of Australia, rather than one of each state and territory then intermediate appellate courts and trial judges in Australia should not depart from the decisions of intermediate appellate courts in another jurisdiction; Farah Construction v Say-Dee [2007] HCA 22.

B Stead
BHS Legal
Updated July 2023