The Gazette 1981

GAZETTE

APRIL 1981

Where, after the commencement of this Act, a person dies wholly or partly testate leaving a spouse or children or both spouse and children, the provisions of this Part shall have effect. The Act contains no definition of "testator," although Section 3 defines "an intestate" as:— a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate and provides that "intestate" shall be construed accordingly. In considering the arguments before her, the learned Judge first asked herself the question when is a testator not a testator? She pointed out that under Section 117 of the Act, an application must be made by or on behalf of a child of "a testator." The Section does not apply in the case of a pure intestacy and she considered that the legislature had clearly not intended that a child of an intestate should be able to come into Court and make the case that, in his particular circumstances, his share should be greater than those of his brothers and sisters. As the deceased's will, in the present case, was clearly inoperative and as, in the absence of some special factor, his estate would pass under the rules of intestacy to his three sons in equal shares, it was essential to the plaintiff, in order to attain the necessary status to apply under Section 117, to establish that notwithstanding the inoperation of his will the deceased had, in fact, died testate. Having considered the terms of the various Sections and of the definition quoted above, the learned Judge reached the interesting conclusion that a person can simultaneously be a "testator" and "intestate," within the meaning of the Act. In further support of this conclusion, she cited Section 115(2) of the Act, relating to a spouse's legal right, which Section specifically contemplates that a person may die partly testate and partly intestate. The Judge also considered the ordinary meaning of "testator," being a person who has made a will in accord- ance with the appropriate statutory provisions and she pointed to the fact that, in consequence, regardless of whether a testator has effectively disposed of all or any part of his estate, a grant of Probate will issue to the executor or executors named in the will; alternatively, if there is no executor named, or if that executor has re- nounced, a grant of Letters of Administration with Will annexed will issue. Letters of Administration Intestate would not issue, notwithstanding that the Will was wholly inoperative to pass any part of the testator's estate. The Judge posed the questions (a) whether Section 109(1), which refers to a person dying "partly testate," requires that a special meaning should be given to the word "testator," as used in Section 117 and (b) whether a person who has made a valid will, but has failed to dispose of any part of his estate, can be said to have died "partly testate"? Answering her own questions, the learned Judge argued that to depart from the ordinary meaning of the word "testator" would be to introduce an arbitrary element. If the test was to be ineffectiveness as to disposition of the testator's property, it would have to be borne in mind that the testator's will may validly have 114

appointed a guardian of his infant children, executed a power of appointment, given directions as to burial or appointed an executor, yet it could have failed to dispose of any part of his own property. It would accordingly be stretching the meaning of language to hold that he did not die partly testate. If the test was to be whether the will was inoperative in every respect, the conclusion could, again, be purely arbitrary. The learned Judge posed the example of an executor, validly appointed, surviving the testator but re- nouncing probate. In such a case, a will which otherwise ould have been partially operative (as to the appointment of the executor) would then become totally inoperative and, if the argument as to the meaning of "partly testate" were accepted, the right of a child to apply under Section 117 would depend upon whether the nominated executor could be persuaded to take out probate. The Judge considered that in order to decide if a person has died wholly or partly testate, it is necessary first to decide whether he had died testate. The state of testacy, she pointed out, does not depend on the effectiveness of the will; it depends upon the effectiveness of the execution of the will. If testacy is established, then, in her opinion, it follows that the person must die wholly or partly testate. There is, the learned Judge commented, no third state of testacy — that is, a state of testacy which neither whole nor partial. Accordingly, it was the view of the learned Judge that a person who has made a will in accordance with the statutory provisions (and, although she did not mention the point, takes no effective steps to revoke that will) dies testate. If that person has disposed of his entire estate, he dies wholly testate. In every other case he dies partly testate. The Judge then considered the various p-resumptions which must arise upon the making of a will. She stated that a testator must be presumed to know that if any bequests or devises lapse, they will fall into residue. Similarly, he must be presumed to know that if the residuary legatee or devisee or (as in the present case) the universal legatee and devisee, predeceases him, his residuary estate or entire estate, as the case may be, will devolve as on intestacy. Therefore, a testator should be presumed to make a will knowing that it will be supplemented, if necessary, by the statutory provisions relating to distribution on intestacy. But because his estate is said to devolve as on intestacy, does not mean that he has not died testate. The only way in which a testator, having made a valid will, can cease to be a "testator" is by revoking the will by one of the means described in Section 85 of the Act, other than by making a new will. The learned Judge therefore held that because the deceased died a "testator," Section 117 of the Act applied and she then turned to consider the merits of the Plaintiff's application concerning the share of his father's estate to which he felt he should be entitled. As the essential legal interest underlying the Judgement of Carroll, J., concerns the interpretation of Sections 109( 1) and 117 of the Act, it is not proposed to comment in detail on the application by the learned Judge of the principles of equity. Having examined carefully the cir- cumstances of all three sons of the testator, she concluded that this was not a case where "equality is equity." In the Judge's opinion, the testator had failed in his moral duty