1. Until the matter was resolved by agreement shortly before trial, this question was the primary issue between the parties in these proceedings. Following a compromise of the litigation, the common position of the parties at trial was that the will was not made in contemplation of the marriage of the testator and Rosebel. However, as already noted, the question is a matter for, and must be determined on the basis of the evidence presented to, the Court.
2. There is little, if any, direct evidence concerning the nature of the relationship between the testator and Rosebel at the time that the will was made. However, I was informed from the bar table that the following facts are common ground:
   • The testator married the mother of the defendants on 22 January 1971.
   • Joanne was born on 31 December 1970 and James was born on 27 October 1972.
   • That marriage was dissolved on 30 August 1976.
   • The relationship between the testator and Rosebel commenced in about February 2005.
   • The testator made an earlier will on 24 November 2005 providing only for Joanne and James.
   • Nicole was born on 31 August 2006.
   • The will in question was made on 15 November 2006, and is the last will of the testator.
3. The will refers to Rosebel as the testator's "partner" and it provides for Rosebel and Nicole. There is a strong inference that Nicole's birth prompted the testator to make the will. However, it does not contain an expression that it was made in contemplation of marriage.
4. The defendants have each sworn a short affidavit. Joanne states that she did not have a close relationship with the testator, and that before he signed the will on 15 November 2006, she had no communication from him which would suggest that he contemplated marriage to Rosebel. James states that he was aware of the relationship between his father and Rosebel, and the birth of Nicole. He also states that prior to 15 November 2006, he had no communication from the testator about whether he intended to marry Rosebel.
5. Nothing in the evidence of Rosebel positively suggests that the testator was contemplating marriage with her at the time that he made the will. There is no other evidence that supports such a finding.
6. In the absence of any evidence to suggest that the will was made in contemplation of marriage, I conclude that s 16(3) is not applicable to the circumstances of this case. The section evinces an intention that a will is revoked by marriage unless one of the exceptions contained in the section is applicable. A court would need to be satisfied on the basis of positive evidence that the will was made in contemplation of marriage, before finding that to be the case. There is no such evidence or even a contention from the parties to that effect. Accordingly, I find that the will was revoked by the marriage of the testator subject to any disposition in favour of Rosebel.

1. The will is a relatively lengthy document. It contains a number of general administrative provisions. However, the specific provisions relevant to the disposition of the estate, which include provision in favour of Rosebel, are as follows:

(e) Primary Beneficiary means in relation to any Trust which comes into existence pursuant to any provision of clause 7 and 9 the persons specified in that provision as the Primary Beneficiary of that Trust.

(i) person who is a descendant of a grandparent of either the Primary Beneficiary of the trust or a spouse of the Primary Beneficiary;

(ii) spouse or children of any of the persons specified in the preceding sub-subclause; ...

The Executors and Trustees of this Will are to be JAMES GLANN OAKLEY and JUSTIN FRANCIS OTLOWSKI both of 168 Collins Street, Hobart in the State of Tasmania.

My Executors will be the Trustees of each Trust under this Will until such time (if any) as a Primary Beneficiary for the Trust is determined pursuant to this Will.

I give all my interest in my property at 25 Connellys Marsh Road and all my articles of clothing, jewellery or personal use or ornament to my son JAMES McFADYEN (JAMES) and my daughter JOANNE ELIZABETH McFADYEN (JOANNE) provided they survive me and in equal shares.

Subject to the preceding Clause, my Executors will divide the balance of my estate into two equal parts, and will hold on trust and dispose of such parts, as follows:

(a) My partner ROSEBEL CORTEZ TAYABA (ROSEBEL) provided she survives me by thirty (30) days will be the Primary Beneficiary of a Trust for one such part;

(b) my daughter NICOLE ROSE TAYABA McFADYEN (NICOLE) provided she survives me by thirty (30) days will be the Primary Beneficiary of a Trust for the other such part.

(c) If ROSABEL [sic] or NICOLE do not survive me for a period of 30 days then only one Trust shall be created for the benefit of the survivor.

(d) If both ROSABEL [sic] and NICOLE do not survive me for a period of 30 days then the balance of my estate shall be divided equally between JAMES and JOANNE provided they survive me.

10 ALTERNATE DISTRIBUTION TO OR FOR PRIMARY BENEFICIARY

The preceding Clauses are subject to this Clause. If a Primary Beneficiary consents to its exercise, my Executors will have the discretion to distribute all of any part of the share of my estate for which the Primary Beneficiary would otherwise have been the Primary Beneficiary of a Trust created by this Will to:

(a) Any other Trust, the Beneficiaries of which are confined to all or some of the Beneficiaries that would otherwise have been the Beneficiaries of that Trust under this Will; or

(b) The Primary Beneficiary in his or her personal capacity.

In respect of each of the Trusts created under this Will that nominate a person to be the Primary Beneficiary I declare that the following terms will apply:

The Beneficiaries of the Trust will be the Beneficiaries defined in clause 2(f).

The Trustee will allocate or accumulate the net income or capital of each Trust as follows:

(a) an amount equal to 40% of the net income of each Trust may in each year be paid or allocated to or applied for the benefit of such of the Beneficiaries with the balance of the net income to be accumulated as an addition to the capital of the Trust;

(b) the capital of the Trust shall be allocated to the Primary Beneficiaries on the ending of the Trust as described in clause 14.

The written consent of the Primary Beneficiary will be required before the Trustee may nominate the ending date of the Trust or may (other than to or for the benefit of the Primary Beneficiary or equally between the Residuary Beneficiaries):

(b) lend Trust monies other than at market rates of interest;

(c) permit the use of Trust property without, or at a nominal, charge.

The Trust will end when NICOLE attains or would have attained the age of 21 years."

1. Section 16 of the Wills Act includes the following provisions:

(2) However, the following are not revoked by the marriage of the testator ...

(a) a disposition to the person to whom the testator is married ...".

1. "Disposition" is defined by s 4 of the Wills Act to include "any gift devise or bequest of property under a will".
2. The question, therefore, is whether the provisions of the will set out above contain a disposition to Rosebel. They will only do so if those provisions are construed as providing for a "gift devise or bequest of property" to Rosebel.
3. The common submission of the parties in respect of this question is as follows:

(a) The provision made for Rosebel in the will is not a "disposition" within the meaning of s 16(2)(a). It is submitted that the will confers rights on Rosebel as a beneficiary under a testamentary trust, but that this does not amount to a "gift devise or bequest" of property.

(b) The interest taken by Rosebel under the trust will be substantially affected by the revocation of the balance of the will, including the rights of other persons interested in the income and capital of the trust. Further, the trust relates to a share of the residuary estate, and the extent of the residue is also impacted by the revocation of the will. In those circumstances, it is submitted that an issue arises as to whether the trust pursuant to which the conferred rights arise, is affected to such an extent by the revocation that it fails, and along with it, Rosebel's interest as a beneficiary. If this is the case, then there is not an effective disposition to Rosebel, and the result is a full intestacy.

The nature of the apparent disposition to Rosebel

1. The fundamental structure of the disposition of the estate under the will is relatively simple. The testator's property at 25 Connelly's Marsh Road, together with some items of personal property, is devised to James and Joanne in equal shares, provided they survive him. The balance is then divided into two equal parts, with each part to be held on trust as specified in the will. The simplicity of this arrangement can be contrasted with the complexity associated with the nature of the testamentary trusts. Some of the features of the trusts are as follows:
   • Rosebel and Nicole are each appointed as the primary beneficiary of a trust for one equal part of the residue. Clause 2 is the interpretation provision of the will. It defines "primary beneficiary" to mean the person so specified in relation to a trust.
   • The terms of the trust are contained in cl 14. Under that clause, the trustees are required to allocate the capital of the trust to the primary beneficiary on the ending of the trust, which is stated to be when Nicole attains or would have attained the age of 21 years. In the meantime, the trustees may pay, allocate to or apply for the benefit of the beneficiaries of each trust, 40% of the net annual income of the trust, with the balance of the income to be accumulated as an addition to the capital of the trust. The beneficiaries of the trust are defined as any person who is a descendant of a grandparent of the primary beneficiary or the spouse of the primary beneficiary, together with the spouse or children of any such person. The effect of this provision in respect of the trust of which Rosebel is the primary beneficiary, is that, until the trust ends when Nicole will turn 21 years of age, which is 31 August 2027, the trustees have a discretion to distribute the 40% share of the yearly interest of the trust, or some of it, to a person or persons other than Rosebel, as well as to Rosebel. As counsel for the plaintiff points out, there is no direction contained in the relevant provision as to how the 40% sum is to be allocated and divided between the various beneficiaries, if the trustees exercise their discretion to do so at all.
   • By cl 10, the executors are granted a discretion to distribute the share of the estate which is the subject of such trust to the primary beneficiary in his or her personal capacity if the primary beneficiary consents. It would seem that this may occur at any time, and need not await the end of the trust.

Does appointment as a primary beneficiary of a trust amount to a disposition to Rosebel?

1. This question will be resolved by a determination as to whether the rights acquired by Rosebel as explained above, amount to a gift, devise or bequest of property.
2. Traditionally, the words "devise" or "bequest" have been regarded as specific examples of the more general term "gift". A devise refers to a gift of realty and a bequest to a gift of personal property. In Anderson v Dupain [2013] NSWSC 108, Lindsay J said at [30]:

"Even amongst lawyers, let alone lay people, the subtleties of any historical differences between the words 'devise' and 'bequeath' have generally been lost to view, and both have been overshadowed by the more general word 'give'. Each of the words 'give' and 'bequeath' is capable of embracing a testamentary gift of real estate."

1. A gift is simply a voluntary transfer of property from one person to another. A testamentary gift is a gift of property by will.

(a) any contingent, executory or future interest in property; and

(b) any right of entry or recovery of property or right to call for the transfer of title to property."

1. Having regard to the provisions of the will discussed above, Rosebel's appointment as a primary beneficiary confers a number of rights upon her. At the very least, she is entitled to the certain allocation of an equal share of the residuary estate at the end of the trust. Further, under cl 14.2(a), the income of the trust other than any income distributed in accordance with the provisions relating to a share of 40% of the net income, is to be accumulated as an addition to the capital of the trust. Rosebel's entitlement to this income is as certain as her future entitlement to the capital of the trust. Her certain right to receive a share of the residuary estate upon administration of the estate will entitle her to a proprietary equitable interest in the assets of the estate, once the estate is administered and the net residue ascertained: Commissioner of Stamp Duties v Livingston [1964] UKPC 2; [1965] AC 694; [1964] 3 WLR 963, (1964) 112 CLR 12. I am satisfied that this interest falls within the ambit of the definition contained in s 4, and hence amounts to "property" under that definition. The disposition will not be achieved, of course, until the administration of the estate is complete, but that is an inherent aspect of a disposition contained in a will, and clearly contemplated by the definition in s 4. It follows that the conferral upon Rosebel of rights as a primary beneficiary amounts to a disposition of property within the meaning of s 16(2)(a), and, hence, is not revoked by the marriage.
2. The quantum of income which is accumulated as an addition to the capital will be affected by the operation of the provision in cl 14.2(a), concerning the distribution of 40% of the net yearly income to the beneficiaries. The definition of beneficiaries includes Rosebel, as she obviously is a descendant of her own grandparent, but it also includes other persons. For example, it will include Nicole. The use of the word "may" is crucial to the operation of this provision. The only reasonable construction of the provision is that the trustees have a discretion to pay, allocate or apply such income for the benefit of the beneficiaries, or some of them. It is well established that a beneficiary under a discretionary trust has no interest, vested or contingent, in the property which constitutes the trust fund, unless and until a distribution is actually made to the beneficiary. Gartside v Inland Revenue Commissioners (UK) [1967] UKHL 6; [1968] AC 533, [1968] 2 WLR 277, Lord Reid at 607 (AC); Pearson v Inland Revenue Commissioners (UK) [1981] AC 753, [1980] 2 WLR 872; Queensland Trustees Ltd v Commissioner of Stamp Duties [1952] HCA 52; (1952) 88 CLR 54; Re Goldsworth [1969] VicRp 107; [1969] VR 843. The only right acquired is a right to have the power of distribution exercised in good faith, if it is in fact so exercised, or to otherwise have the trustee perform a duty. See for example, Ramage v Waclaw (1988) NSWLR 84. It is properly described as an expectancy. The nature of such a right was described by Lord Reid in Gartside v Commissioners of Inland Revenue as follows:

"But a right to require trustees to consider whether they will pay you something does not enable you to claim anything. If the trustees do decide to pay you something you do not get it by reason of having the right to have your case considered: you get it only because the trustees have decided to give it to you. Even if I had thought that objects of discretionary trusts have interests, I would not find any good reason for holding that they have interests in possession."

1. It follows that Rosebel does not acquire an interest in property as a result of the expectation of receiving a distribution from the 40% share of the yearly income pursuant to cl 14.2(a) of the will. Accordingly, that aspect of the clause does not amount to a disposition to Rosebel, and is revoked by the marriage. Of course, insofar as it permits distribution of income to any person other than Rosebel, it is revoked by the marriage in any event.
2. In my view, the consequence of the revocation of this discretion, is that the whole of the income of the trust will be added to the capital. This is because the proper operation of the clause is that income not distributed in accordance with the discretion accumulates to the capital. I am satisfied that the proper construction of cl 14.2(a) is that "the balance of the net income" refers to the 60% share not subject to distribution, together with whatever part of the 40% share is not distributed by the trustees. It follows that, before revocation, Rosebel acquired a beneficial interest in the whole of the income, subject to the contingency of distribution to others. This is a proprietary interest, certain as to 60% and contingent as to 40%. In both cases, the interest amounts to "property" within the definition contained in s 4, and hence is saved from revocation. This can be contrasted to the position of other beneficiaries, who acquire no interest in the income whatsoever. The only effect of the revocation of the provision for discretionary distribution of the 40% share is to remove the contingency, but this has no effect on the proprietary nature of Rosebel's interest in the whole of the income.
3. It follows that the will contains a disposition to Rosebel of the income and capital of an equal share of the residuary estate, which is held on trust until the end of the trust, or until otherwise allocated to her under cl 10.

Is the disposition of property to Rosebel invalidated by the revocation of the balance of the will?

1. The submissions of counsel for the plaintiffs, which are supported by counsel for the defendants, can be summarised as follows:
   • The disposition to Rosebel should be conceived as a single gift consisting of two aspects, being the certain allocation of capital at the end of the trust, and the interim allocation of income.
   • Of the income, Rosebel has a certain interest in 60%, but only a contingent interest, subject to discretion, in the balance.
   • Because any other potential beneficiary with respect to the 40% share of annual income falls away due to the revocation, Rosebel will either receive the benefit of the whole of this share, or a lesser sum, if it is the case that the whole of the 40% of annual income fails due to the revocation, hence allowing the full 40% to fall into intestacy.
   • In either case, Rosebel is not receiving a gift of the same magnitude as that contemplated by the testator when the will was made. Accordingly the disposition to her is not the disposition contained in the will and is not saved by s 16(2)(a). Further, counsel queries whether the failure of that part of the trust which provides for the benefit of persons affects the validity of the whole trust.
2. With respect to counsel, I must reject these submissions. The fundamental problem with the submission is the discretionary nature of the anticipated entitlement of any of the beneficiaries to a share of the income. As noted above, this entitlement amounts to nothing more than an expectancy. There was never any certainty that the said share would be distributed, and the beneficiaries acquire no right to force such a distribution. As I have already found, the disposition to Rosebel contemplated that whatever income was not distributed would be added to the capital of the trust. It is therefore consistent with the disposition, that the whole of the income of the trust should be accumulated and added to the capital and thereby pass to Rosebel. This outcome was contemplated by the structure of cl 14.2(a), even if the revocation by marriage had not come about.
3. This outcome is also consistent with the intended operation of s 16. Given the wide ambit of the definition of disposition, particularly when reference is had to the definition of property, the saving of a disposition to a particular person upon the certain revocation of the balance of the will, and hence the failure of the disposition of property to others, must carry with it the probability that, in the case of general gifts, the quantum will be necessarily affected by the revocation. This will certainly be the case with a residuary gift. The clear words of the section preclude any suggestion that an intention should be implied to exclude from the meaning of disposition, a disposition which is so affected.
4. In oral submissions, counsel made a further point. The gift to Rosebel is of the residuary of the estate remaining after the devise of real estate to the defendants. Given that the estate is not large, this necessarily means that if the residuary is calculated on the basis that it now includes the real estate which was the subject of the devise, because the devise has been revoked, then Rosebel is receiving a gift which is substantially larger in quantum than that contemplated by the testator.
5. I reiterate my comments in relation to the intended operation of s 16. In any event, a gift of residue contemplates that the quantum of the property taken under such a gift will depend upon and be affected by the failure of any specific gift. Section 45 of the Wills Act provides that, to the extent that a disposition of property in a will is ineffective, the will takes effect as if the property were part of the residuary estate. This provision reflects the general law.
6. Section 16(2)(a) clearly operates to save a residuary gift, as well as any other form of specific or general gift. It must be presumed that the legislative scheme is intended to operate in circumstances where the gift saved by s 16(2)(a) is a residuary gift, but specific gifts to others are revoked by the marriage. The consequent impact on the quantum of the residue, having regard to s 45, must therefore be in accordance with the intended operation of s 16(2)(a).
7. Of course, it is not strictly necessary for the Court in these proceedings to determine the effect of the revocation of the balance of the will on the quantum of the disposition to Rosebel. For example, in addition to the consequence of the revocation of the specific gift to the defendants, the question also arises as to the effect of the revocation on the other one-half share of the residue. Section 56(2) suggests that that share may pass to Rosebel's residuary interest, but there is also an argument that upon the revocation of that part of the will, that share will fall into intestacy. These are not matters to be determined by the Court in these proceedings. They are matters relevant to the administration of the estate. It is sufficient that I am satisfied that there is a valid disposition to Rosebel of a share of the residue. I conclude that this disposition has not been revoked by the operation of s 16, having regard to the provisions of s 16(2)(a).

1. I am satisfied that the appropriate order is to grant letters of administration with a fiat copy of the will annexed, so that the administration of the estate can proceed in a manner which will include the disposition to Rosebel in accordance with the will. Insofar as the estate is not dealt with by way of this disposition, it will be dealt with on intestacy.
2. The parties agree that letters of administration should be granted to the plaintiffs. Section 13 of the Administration of Probate Act requires the Court, in granting letters of administration, to have regard to the rights of all persons interested in the real and personal estate of the deceased person. The section further provides that administration with the will annexed may be granted to a devisee or legatee. Clearly, it is appropriate that administration be granted to Rosebel. She is the only person entitled to a disposition under the will, and will be a substantial beneficiary of that part of the estate that is subject to intestacy, having regard to the provisions of the Intestacy Act. The Probate Rules set out the priority applied to a grant of administration, which essentially follows the order in which persons become entitled to the estate of an intestate.
3. As noted before, the practical effect of s 14 is to require the appointment of not less than two individuals, given the potential interest as beneficiary of Nicole and Chloe. The parties agree that Ms Adams is an appropriate person to take this role, and she is prepared to do so. Notwithstanding that s 13 requires the Court to have regard to the rights of all persons interested in the real and personal estate of the deceased person, s 13(b) provides that if by reason of "any other special circumstances, it appears to the court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision, would by law have been entitled to the grant of administration", the Court may do so. In the circumstances of this case, and particularly as the parties agree that Ms Adams will not only have the best interests of the children in mind, but also is the aunt of all of the deceased's children, and is the person accepted by all potential beneficiaries, I am satisfied that it is expedient in this case to appoint her to be an administrator, notwithstanding that she does not have an interest in the estate.

1. The final question which arises is whether the grant should be pronounced in common form or in solemn form. This question requires consideration because the grant is a public act which will give effect, in part, to the will. The grant will thereby accept and establish the will as the final expression of testamentary intention of the testator. It is necessary to determine the validity of the will before effect can be given to the disposition to Rosebel. A grant in solemn form will finally determine that issue, as well as the other issues discussed above, in a manner which is binding on all interested parties.
2. The question of whether the grant should be pronounced in common or solemn form is a matter for the discretion of the Court: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786. If the court determines to pronounce in solemn form, before it does so, it should be satisfied by evidence of matters essential to the grant. As Lindsay J said in Kouvakas:

"248 In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178.

1. A grant expressly issued 'in solemn form' is a judicial statement that, on the Court's then assessment:

(a) all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;

(b) on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and

(c) an order for a grant in solemn form appropriately serves the due administration of justice."

1. Accordingly, a court intending to make a grant which will give effect to a will, must satisfy itself of the validity of the will. In order to be satisfied of validity, the court will normally require adequate proof of due execution. The court will not simply rely on a compromise between the parties in order to make the grant. Where proper execution is proved, a presumption will arise, in the absence of evidence to the contrary, that the will was made by a person with adequate capacity to do so: Wheatley v Edgar [2003] WASC 118 at [24]. In Kouvakas, Lindsay J noted at [246] that "The court may, in appropriate circumstances, waive strict proof of due execution, relying on a presumption of validity arising from the production of an apparently duly executed will, rational on its face; Blake v Knight (1843) 3 Curt 547 at 561 and 564."
2. In this case, it has always been common ground between the parties that the will was properly executed, constitutes the last testamentary expression of the testator, and was made when he had appropriate capacity to do so. The affidavit of testamentary scripts made by Rosebel and Ms Adams provides some evidence that the will is, in fact, the last testamentary document made by the testator. There is no evidence to the contrary of this. The will appears to be rational and properly executed on its face. It can be inferred from the affidavits of the defendants that there was nothing known to either of them that would suggest any difficulty with their father's capacity to make the will. Having regard to these circumstances, I am satisfied as to the validity and testamentary effect of the will.
3. I am also satisfied that all relevant interested parties have participated in or had the opportunity to participate in the litigation. They have been legally represented. The real issues which arose in relation to the administration of the estate have been the subject of litigation, which although eventually compromised, has been relatively extensive. There has been evidence presented in respect of those issues, and I have made a determination about them. In those circumstances, I am satisfied that it is appropriate to exercise my discretion to pronounce the grant in solemn form.

1. For these reasons, I order that letters of administration of the estate of James Tasman McFadyen, with so much of the will as should properly be admitted to grant as per a fiat copy to be annexed to the order, be granted to Rosebel Tayaba McFadyen and Raylee Anne Adams. I will hear counsel as to the formulation of the fiat copy of the will. It is arguable that the revocation of the will but for the disposition to Rosebel, which includes the revocation of the appointment of Nicole as a primary beneficiary of the other half share of the residue, removes the testator's reason for the residuary gifts to be by way of testamentary trusts which do not end until Nicole attains the age of 21 years. Hence, it is arguable that the creation of a testamentary trust to give effect to the gift to Rosebel is impliedly revoked by the marriage, leaving only a gift to her in her own right. I will hear counsel as to this question, although I note that from the point of view of practical administration, the administrators, of whom Rosebel is one, have power, in any event, pursuant to cl 10, to distribute her share of the estate to her immediately.
2. I will also hear counsel as to whether there are any further or consequential orders or matters that arise.