clauses Flashcards
s15 WA 1837
- As the execution of a codicil re-executes the will (or previous codicils it refers to) the codicil can ‘correct’ problems with an earlier testamentary document.
- If a beneficiary (or their spouse) witnesses a will, s15 Wills Act 1837 has the effect of denying the beneficiary their inheritance. However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to and the effect of s 15 WA 1837 is avoided.
- S15 WA 1837 applies to a codicil in the same way as a will. So: a witness to a codicil (or their spouse) must not benefit under either the original will or codicil.
S.18
However, it is possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves (s18(1) CA 2005). The court must be persuaded there are grounds to diverge from the existing testamentary position and it is in the person’s best interests to do so.
S33 1837
s33 apply
If T gifts to T’s issue but there is no substitution clause, s33 prevents the gift from lapsing where:
a) there is a will containing a gift to the testator’s ISSUE (child, grandchild, lineal descendants), and
b) the intended beneficiary dies before the testator, and leaves issue of their own who are living at the testator’s death
Effect of s 33
The gift will be shared equally between the issue of the deceased beneficiary, provided no contrary intention is expressed in the will
Substitution where s33 would apply It is good practice to include substitution provisions expressly for clarity even if s 33 would otherwise apply to achieve the same result – especially if T wants to add a contingency as s33 has none
ALSO: s33 only applies to gifts to issues – not gifts to siblings so nieces/nephews do not benefit
Excluding section 33
S 33 will apply unless excluded by the wording of the will or the will otherwise indicates a contrary intention
Ambiguity should be avoided by drafting to exclude s33 and impose substitutions expressly
