A fundamental tenet of Australian succession law is the concept of freedom of testation, which means that a testator is entitled to dispose of their property in whatever manner they see fit. This ideological precept is sometimes in tension with the laws that govern and restrict wills and deceased estates. One legislative remedy for this tension is the provision that allows a testator to express a contrary intention to certain legislative restrictions. This article outlines the impact of contrary intentions with reference to recent common law.
In Australia, each state and territory has legislation that governs succession, regulating how property is transferred after death. While these statutory rules contradict the very principle of testator freedom, they are considered necessary to ensure fairness between parties, promote compliance with public policy, and reduce the potential for legal conflicts. However, there is also a provision for a testator to indicate a contrary intention to some statutory rules. For instance, while a testator cannot overrule the laws that allow for valid Family Provision Claims, they can exclude other rules such as the requirement for a beneficiary to survive the testator in order to inherit.
Clauses Allowing For Contrary Intention
Succession legislation specifically states when a testator can express a contrary intention to override the statutory provision. In that case, if a testator does not want a particular law to apply to their estate, they can expressly state that the statutory provision does not apply. This means that the executor of the estate can disregard the legislative provision in favour of the testator’s expressed intention.
As mentioned above, there is statutory allowance for a testator to express a contrary intention to the survivorship rule. In all Australian jurisdictions, succession law mandates that a beneficiary can only inherit if he or she outlives the testator for a period of time. For instance, in NSW the Succession Act 2006 states that a beneficiary must survive the testator for thirty days.
These provisions were introduced with the advent of air travel. Lawmakers were concerned that it would be impossible to determine the order of succession if more than one family member died in the same plane crash. The survivorship rule was intended to resolve this issue by requiring the beneficiary to survive the testator by a clear period of time. However, a testator may make a contradictory clause and state that the survivorship rule should have no effect. This may be desirable in circumstances where the testator has no secondary beneficiaries that they wish to nominate.
Another example of a statutory provision that a testator can exclude through contrary intention is in relation to testamentary gifts for children. For instance, under the former NSW succession law, any inheritance to a child flowed to the child’s issue if the child predeceased the testator. However, this rule in NSW also allowed for the testator to express a contrary intention, and to redistribute the share of the deceased child.
Other statutory rules that provide for a testator to express a contrary intention include:
- The time that a will takes effect;
- The circumstances when a gift may fail;
- The inclusions in a disposition of land;
- How gifts to children operate; and
- The inclusions in a gift of property and whether there are limitations to the transfer.
Assessing Contrary Intention
The Supreme Court of Victoria established in Bassett & Ors v Hall  that the court evaluates whether there is a contrary intention on a case-by-case basis depending on the wording of the will. The courts make this assessment as part of a holistic reading of the terms of the will, considering the value and nature of the assets of the estate, whether the testator drafted their own will and the testator’s relationship with each beneficiary of the will.
In Longmore v Longmore & Ors; The Estate Of Jean Longmore , the Supreme Court of New South Wales considered whether a contrary intention revoked a grandchild’s right to inherit their deceased parent’s provision in a will. In this case, a mother died leaving her estate “equally between such of my children as survive me in equal shares as tenants in common”. One of the testator’s children predeceased her, but the former legislation allowed this gift to pass to his child unless a contrary intention appeared in the will. Ultimately the Supreme Court concluded that the phrasing of the bequest expressed a contrary intention sufficient to override the legislative provision, and the bequest to the deceased child reverted to the estate.
At Armstrong Legal, our solicitors are experienced in wills and estate law and can help you understand the impact of a contrary intention expressed in a loved one’s will. Please call 1300 038 223 or contact our solicitors today. Our contested wills team can offer advice or representation in case you need to dispute a will that contains a contrary intention that is unclear or unfair.