The principle underpinning the NSW statutory provisions relating to this question can be traced at least as far back as England’s Wills Act of 1837. Rather than the gift lapsing, in essence, the principle states that if a parent leaves a gift to their child, where that child had died leaving children of their own, then those children (the grandchildren of the person making the Will in question) should receive the share that would have gone to the parent had the parent not died. That is unless a “contrary intention” was to be discerned from the Will.
The NSW Supreme Court considered this issue in Longmore v Longmore & Others (2018), where one of the deceased mother’s children had died before her. She left one child of her own. The dispute turned on the words “between such of my children as survive me in equal shares as tenants in common”. The Court had to decide if this constituted a “contrary intention” such that it negated the statutory provision. The Court decided that it did.
The case is a reminder of the importance of reviewing a Will on the occurrence of key life events such as the death of a named beneficiary. Clarity of intention is important to avoid construction (interpretation) being undertaken by a judge.
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