Burman v Burman & Anor [1998] QCA 250

(1) Unless a contrary intention appears by the will, where any beneficial disposition of property is made to any issue of the testator (whether as an individual or as a member of a class) for an estate or interest not determinable at or before the death of that issue and that issue is dead at the time of the execution of the will or does not survive the testator for a period of 30 days, the nearest issue of that issue who survive the testator for a period of 30 days shall take in the place of that issue and if more than 1 nearest issue so survive, shall take in equal shares and the more remote issue of that issue who survive the testator for a period of 30 days shall take by representation.

(2) A general requirement or condition that such issue survive the testator or attain a specified age is not a contrary intention for the purpose of this section."

4 Section 33 has a lengthy history going back to the Wills Act 1837 (Eng.). See Re King [1932] NSWStRp 74; (1932) 32 S.R. (N.S.W.) 669. There is comparable legislation in other Australian States, where, however, in some of them, including Queensland, the operation of the anti-lapse provision has been extended to cover dispositions in favour of a class as well as an individual. The children of Neville Burman say that this is an instance of that kind. They submit that the effect of cl.3(q) of the will, as substituted by the codicil executed in November 1989, was to create a class gift in favour of the sons of the testatrix; and that s.33 then operated on that disposition in the will so as to prevent it from lapsing and preserve its existence in favour of Neville's children after his death in 1989.

5 The learned primary judge rejected this submission. He did so on the ground, among others, that the will including the codicil disclosed "a contrary intention" within the meaning of s.33(1) of the Act. His Honour derived this intention from two sources: first, from what he described as the establishment of a "special class" consisting of "such sons as shall survive me". By expressly nominating the class of surviving sons (so excluding deceased sons), and specifically providing for gifts over to designated charities rather than to issue should either Kevin or Allan predecease her, the learned judge held that the testatrix had excluded her grandchildren from benefiting from her estate. In addition, the original cl. 3(p) had provided for Neville's wife to take his share if he predeceased the testatrix, whereas the subsequent cl.3(p) substituted by the codicil had revoked that disposition and provided instead for the payment of a pecuniary legacy to Mrs Neville Burman.

6 As to that, the appellant urges that, to regard the gift to "such sons as survive me" as indicating a contrary intention within the meaning of s.33(1) runs directly counter to s.33(2), which expressly provides that a general requirement or condition that issue survive the testator is not a contrary intention for the purpose of the section. A possible view of the expression "such of my sons as shall survive me" is, however, that it is neither a requirement nor a condition but rather an essential element in the description of the beneficiaries. If the mere use of the word "survivor", or some other form of that word, to designate a beneficiary is invariably neutralised by s.33(2), then the effect is, to some extent, to restrict the full testamentary freedom which has hitherto existed of disposing of property at death. It becomes considerably more difficult to expressly provide for lapse unless an apt synonym can be found for the word "survivor" or "survives" that will succeed in escaping the impact of s.33(2).

7 That this is not the intention of the section is to some extent supported by the decision in Re King [1953] VicLawRp 86; [1953] V.L.R. 648, where a gift to "such of ... my two sons Sydney and Walter as shall be living at the date of my death" was held to display a contrary intention sufficient to displace the operation of the provision in s.31(2)of the Wills Act 1947 (Vic.), corresponding to s.33(2) of the Queensland Act, which O'Bryan J. said was "not intended to interfere with the disposing power of a testator" ([1953] V.L.R. 648, 650). See also Bassett v. Hall [1994] VicRp 31; [1994] 1 V.R. 432, where a bequest to "my two sons ... as shall be alive at the date of my demise" was held to manifest a sufficient indication that the section was not to apply.

8 It is, however, not necessary to reach a final conclusion about that question here because I consider that in this instance s.33(1) has no application. For s.33(1) to apply, there must first be a "beneficial disposition of property ... made to any issue of the testator ...". The section operates only in the event that there is a disposition to any such issue, and that issue is dead at the date of execution of the will, or at any rate does not survive the testator for 30 days. In that event, it is the nearest surviving issue of the testator who take the disposition in place of that deceased issue.

9 In the present case, it is Neville Burman who is put forward as the deceased issue in terms of s.33(1). The problem for the appellant is, however, that, at the death of the testatrix, which is the date from which the will speaks, there was no disposition at all in favour of Neville Burman. Earlier there had been such a disposition in the original will dated 31 August 1988, in the form of cl.3(p) directing that the residue be transferred to such of the sons of the testatrix as survived her, with a gift over to Mrs Neville Burman in the event of Neville himself having predeceased the testatrix. But, by her codicil dated 17 November 1989, she revoked the disposition in cl.3(p) and substituted the pecuniary legacy of $6,000.00 in favour of Neville's widow Mrs Mary Burman, at the same time inserting the new provision cl.3(q) directing the residue to "such of my sons as shall survive me". At the time she made that alteration in her testamentary dispositions, the testatrix was aware that her son Neville was dead. It was the reason why she altered the terms of her will. She could not have intended that the disposition in cl.3(q) should operate in favour of her son Neville who had, to her knowledge, died some five months before. And she could not have intended that his children, who were her grandchildren, should benefit by taking his share. Had she wished that to happen, she could and no doubt would have so provided when she executed that codicil in November 1989.

10 Everything thus combines to show that the testatrix intended the will and codicil to operate according to their terms, and that she intended to displace the operation of the s.33 of the Succession Act 1981.

11 The copy of the order in the record does, it may be noted, refer not to cl.3(q) of the will but to cl.3(9). That is plainly a clerical error, which it is convenient to use this occasion to correct. To that extent the appeal should be allowed. Otherwise it should be dismissed with costs.

I have read the reasons of McPherson J.A. in which the nature of the case is explained. I agree entirely with those reasons and with the order his Honour proposes. I have also read the reasons of Helman J. which provide additional ground for the same conclusion; I agree with them.

1. I have had the advantage of reading McPherson J.A.'s reasons for judgment with which I agree. In my view a proper construction of clause 3(q), even without the extrinsic evidence that was before the learned judge below, supports the conclusion his Honour reached.

2. The original clause 3(p) of the will was as follows:

"3. I GIVE DEVISE AND BEQUEATH the whole of my estate of whatsoever kind or nature and wheresoever situate unto and to the use of my trustees upon the following trusts that is to say:-

(p) To pay, transfer and convey the rest and residue of my estate to such of my sons as shall survive me and if more than one as tenants in common in equal shares PROVIDED HOWEVER that should my son NEVILLE HENRY BURMAN predecease me leaving his wife MARY MARGARET BURMAN, who shall survive me, then the said MARY MARGARET BURMAN shall take absolutely the share which my said son NEVILLE HENRY BURMAN would have taken had he survived me and further PROVIDED HOWEVER that should my son KEVIN JAMES BURMAN predecease me then the ORDER OF HERMITS OF ST. AUGUSTINE shall take absolutely the share which my said son KEVIN JAMES BURMAN would have taken had he survived me and further PROVIDED HOWEVER that should my son ALLAN JOHN BURMAN predecease me then THE QUEENSLAND CANCER FUND shall take the share which my said son ALLAN JOHN BURMAN would have taken had he survived me."

There can I think be no doubt that the testatrix used the word "sons" in the phrase "such of my sons as shall survive me" to refer to her three sons Neville, Kevin, and Allan. The specific references to Neville, Kevin, and Allan in the provisos clearly enough indicate that. The form that the clause took then was to provide that any survivor of her unspecified "sons" at her death was to take a share in the residue of her estate, and the shares of specified sons who did not survive her were to go to named beneficiaries: in Neville's case his widow Mary if she should survive the testatrix, in Kevin's case the Order of Hermits of St. Augustine, and in Allan's case the Queensland Cancer Fund. Reading the clause as a whole, even without the benefit of extrinsic evidence, one is drawn to the conclusion that it would be straining its language to take the testatrix's reference to her "sons" as including a reference to any sons she might have other than those named in the provisos: what appears to have been intended was the comprehensive disposal of the residue. The extrinsic evidence that the testatrix had only the three sons confirms that construction.

3. Clause 3(q) is in the same form as the original clause 3(p):

"3. I GIVE DEVISE AND BEQUEATH the whole of my estate of whatsoever kind or nature and wheresoever situate unto and to the use of my trustees upon the following trusts that is to say:-

(q) To pay, transfer and convey the rest and residue of my estate to such of my sons as shall survive me and if more than one as tenants in common in equal shares PROVIDED HOWEVER that should my son KEVIN JAMES BURMAN predecease me then the ORDER OF HERMITS OF ST. AUGUSTINE shall take absolutely the share which my said son KEVIN JAMES BURMAN would have taken had he survived me and PROVIDED FURTHER however that should my son ALLAN JOHN BURMAN predecease me then the QUEENSLAND CANCER FUND shall take absolutely the share which my said son ALAN [sic] JOHN BURMAN would have taken had he survived me."

Again the phrase "such of my sons as shall survive me" is used without naming the "sons" referred to. Again there are provisos, but in this instance they refer only to the shares of Kevin and Allan. There is no mention of Neville in the new clause. Reading that clause as a whole one is again drawn to the conclusion that the unspecified "sons" referred to in the phrase "such of my sons as shall survive me" are only those mentioned to in the provisos. If there were any doubt about that construction it is dispelled when one takes into account the new clause 3(p) and the evidence that between the execution of the will and the execution of the codicil of November 1989 Neville had died. Accordingly, I do not think there can be any doubt that the testatrix's reference to her "sons" in the new clause 3(q) was a reference to the two sons living at the time of execution of the codicil and not to her deceased son Neville.

4. I agree that the orders should be as proposed by McPherson J.A.