31Gifts to issue

31 Gifts to issue (1) If— (a) a testator by will devises or bequeaths property to, or appoints property in favour of, a person (the original beneficiary) (whether individually or as a member of a class) who is a child or other issue of the testator for an estate or interest not determinable before or on the death of the original beneficiary; and (b) the original beneficiary dies in the lifetime of the testator and is survived by issue; and (c) any such issue survive the testator for a period of 30 days (the specified period); then, unless a contrary intention appears from the will or from evidence admitted under section 12B, the will has force and effect as if the devise or bequest were to, or the appointment were in favour of, any issue of the original beneficiary who survive the testator for the specified period, to be distributed— (d) if only 1 issue of the original beneficiary survives for that period—to that issue; or (e) if 2 or more issue of the original beneficiary survive for that period—in accordance with subsection (2). (2) If 2 or more issue of an original beneficiary survive the testator for the specified period, the property the subject of the devise, bequest or appointment shall be divided into a number of equal shares equivalent to the total number of the nearest issue of the original beneficiary who— (a) survive the testator for the specified period; or Part 4 Miscellaneous Section 31A page 40 Wills Act 1968 Effective: 23/02/26 R22 23/02/26 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) die before the end of that period leaving issue (surviving issue) who survive the testator for the specified period; and those equal shares shall be distributed as follows: (c) each of the nearest issue of the original beneficiary who survives the testator for the specified period is entitled to 1 share; (d) any sole surviving issue of a nearest issue who fails to survive the testator for the specified period is entitled to 1 share; (e) if there are 2 or more surviving issue of a nearest issue who fails to survive the testator for the specified period—those surviving issue are entitled, in equal shares, to 1 share. (3) Notwithstanding subsection (2), if a share is distributed in accordance with subsection (2) (e), no surviving issue remoter than children of the nearest issue of the original beneficiary shall form part of the class of surviving issue entitled to take, unless a parent, who would have taken had he or she survived the testator for the specified period, dies before the end of that period, and then any remoter issue is or are entitled to take, if more than 1 in equal shares, the share that that parent would have taken. (4) A general requirement or condition in a will that an original beneficiary survive the testator or attain a specified age shall not be taken to be an expression of a contrary intention for this section. (5) This section does not apply if an original beneficiary has not fulfilled a contingency required by the will as a condition of attaining the vested estate or interest, other than a contingency of surviving the testator or attaining a stated age.