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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
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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