The objective of this study is to examine a specific scenario. That scenario involves the writer of this work as solicitor for the Goldstone City Council, a fictional authority in Queensland, Australia and head of the property law division of the Council under the direction of the Head Legal Counsel. The Head Legal Counsel has asked the writer to provide a written response to her in regards to the following matter: In 2014, a wealthy local citizen, Mr. Robert Kennedy, died. Clause 5 of his Will provides:
"I GIVE AND BEQUEATH the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) to my trustee, the said James Stewart, to establish a fund for the intercultural education of my grandchildren within the Asia-Pacific region AND I DECLARE that the fund so created shall be utilized towards the costs of travel and accommodation within that region and the costs of the educational process, which process shall include the learning of languages of the said region AND I FURTHER DECLARE that the suitability of such expenditure shall be determined by my said Trustee."
Clause 6 of the Will is a residuary clause that provides that if the bequest in Clause 5 should fail, then it shall be paid to the Goldstone City Council. Robert had one son, Dean who was 60 years old when Robert died and still survives. Dean has no children. You have been asked to advise your Head Legal Counsel how the Council might obtain the funds in clause 5 of the Will, now or in the future. In responding, you must clearly refer to, and apply, Australian statutory provisions supporting your opinion. The residuary clause is that which directs the distribution of the residuary estate and it is reported that the residuary estate is: (1) any assets not specifically mentioned in the will; (2) any gifts that have lapsed (because, for example, the named beneficiary died before or within 30 days of the will-maker)." (The Law Handbook, 2012, p. 3) It is reported that without a residuary clause in one's will that the residuary estate "will be administered under the intestacy rules (see The intestacy rules at [43.180])." (The Law Handbook, 2012, p. 4) Should one leave a "specific legacy" including such as "a sum or money or a particular asset" and that individual dies prior to the maker of the will or within 30 days that the legacy "will lapse unless the beneficiary was a child of the deceased…and the asset will pass under the residuary clause" in the individual's will. It is unclear in Australian law whether since the beneficiary named to the trust never existed whether this would be a failed gift and revert to the estate or if the substitute beneficiary would be able to claim the trust. However, because of a new provision in the Succession Act, s.42 stating the manner in which a gift of residue is to be constructed that legal advice should be sought when working the residuary clause in a will. (The Law Handbook, 2012, p. 4)
In this specific case, the testator, Robert has specified an 'Education Testamentary Trust' which is such that funds all or part of the cost of education, whether primary, secondary and/or tertiary for children or grand children or others, In Australian law under the Education Testamentary Trust laws the Trust Fund or 'Education Fund/Residual Capital Fund has the income beneficiaries, which is this case would be the grandchildren or the deceased and 'Residual Beneficiaries' are the will maker's surviving spouse or all children and this includes adult children. However, since the will maker in this scenario identified as the alternate beneficiary of the residuary of this trust is Goldstone City Council. There is reported to be a changed under the 'Succession Act and specifically s.35 which states that "if a gift is made to a person that dies within 30 days after the will-makers death, the will is to take effect as if the person died immediately before the will-maker." (The Law Handbook, 2012, p. 4) That provision can be excluded from the will or the 30 day period may be shortened or lengthened. If there is a specific legacy left including a sum of money or specific asset to an individual that dies before the individual leaving the will or within the 30 days it is reported that "the legacy will lapse unless the beneficiary was a child of the deceased and the asset will pass under the residuary clause in the will. However, if the individual leaves a beneficiary a share of the entire estate or residuary estate and they die before the individual making the will or within 30 days of the death of the individual making the will and a substitute has not been named as beneficiary, then that individual's estate will be distributed "according to the intestacy rules at [43.180]." (The Law Handbook, 2012, p. 1160) There is a new provision reported in the 'Succession Act, s.42' stating the manner in which a gift of residue is to be constructed. However, Goldstone City Council would have only thirty (30) days to lay claim to the state. Although the estate must be claimed within thirty (30) days, the residue of the estate will not be paid out to Goldstone City Council until all claims and debts of the estate are paid.
The reading of the law, always attempts to determine the intention of the testator and in this case, the Testator has a living son, Dean, but no living grandchildren. In the event the gift fails for some reason that the testator has not contemplated then the property will go to the alternate beneficiary named in the provision however, the only contingency that the testator generally contemplates is the beneficiaries death and in the case of the Testator, Robert, the beneficiaries, or his 'grandchildren' were never born, It is reported that the assumption can be made that a Testator "does not want to prejudice the right of the named or described alternate beneficiary if the primary beneficiary cannot take the gift" or stated otherwise the testator would not want to disentitle third parties of are innocent and the presumption can be made that the testator would prefer that the failed gift did not pass to residuary benefits or heirs on intestacy. Therefore, these considerations make it proper to assume that when a testator pointedly makes provision for an alternate gift, it only makes sense to make the presumption that the testator "would want a failed gift to go first to the alternate beneficiary the testator has designated even if the gift fails for a reason that is not contemplated in the will. This does not mean that the alternate beneficiary inevitably takes the failed gift. When the alternate gift is also contingent and the condition is not met, the alternate gift fails as well. If the testator has named a successive alternate beneficiary, the gift goes to that beneficiary." (Alberta Law Reform Institute, 2010)
It is stated that otherwise "it passes to the next category of beneficiaries under the statutory distribution scheme." (Alberta Law Reform Institute, 2010) It is specifically stated as follows: "Subject to certain exceptions (such as contrary intention and anti-lapse provisions), the lapse provision in s. 23 of the Alberta Act presumes that if a devise or bequest fails or becomes void, it is included in the residue of the will, if any. The residue is then shared by all residuary beneficiaries who survive the testator in proportion to their interests. Even though s. 23 is brought into operation regardless of the reason a gift fails, its application is nonetheless limited as the lapse provision does not apply to a gift of residue. It is appropriate to presume that a testator likely prefers to benefit the residuary beneficiaries whom the testator has named in the will rather than the heirs on intestacy. Gifts of residue should not, however, be treated differently than other classes of gifts in this regard." (Kossak Estate v. Kosak (1990), 72 O.R. (2d) 313 (H.C.J.). cited in: Alberta Law Reform Institute, 2010)
It is reported that the recommendation of law made includes the following:
"Subject to a contrary intention, a statutory distribution scheme in the Wills Act should include the following presumptions: (1) testators do not want to disentitle the alternate beneficiaries they have named even if reason a gift fails is not contemplated in the will; (b) testators wish to benefit the issue of their own issue who are unable to take a gift; and (c) Testators intend any failed gift to increase the residue shared by the residuary beneficiaries they have named rather than be distributed to the heirs on intestacy Under the scheme (subject to a contrary intention of the testator), failed gifts to primary beneficiaries are distributed in this order of priorities: (1) alternate beneficiaries, (2) primary beneficiaries' issue (if primary beneficiaries are the As indicated, if all other priorities fail, the gift is distributed to…