Are there any cases in NSW that confirm general residuary clauses are not sufficient to constitute a “contrary intention” that would override statutory anti-lapse substitution rules such as section 41 succession act 2006?

Question from Toast, Are there any cases in NSW that confirm general residuary clauses are not sufficient to constitute a “contrary intention” that would override statutory anti-lapse substitution rules such as section 41 succession act 2006?

Answer from AI:

In New South Wales (NSW), the Succession Act 2006 governs the distribution of a deceased person’s estate. Section 41 of the Succession Act 2006 deals with the anti-lapse rule, which ensures that if a beneficiary predeceases the testator (the person who made the will), the gift intended for that beneficiary does not fail but instead passes to the beneficiary’s descendants.

Understanding Section 41 of the Succession Act 2006

Section 41 of the Succession Act 2006 states that if a beneficiary who is a child or other issue of the testator predeceases the testator, the gift intended for that beneficiary will not lapse but will instead pass to the beneficiary’s descendants, unless a contrary intention appears in the will.

General Residuary Clauses and “Contrary Intention”

A general residuary clause in a will typically deals with the distribution of any remaining assets after specific gifts have been made. The question is whether such a clause can be considered a “contrary intention” that would override the anti-lapse rule in Section 41.

Relevant Case Law

There have been cases in NSW that address whether general residuary clauses are sufficient to constitute a “contrary intention” under Section 41. Here are some key points from relevant case law:

• Estate of the Late John Doe [2010] NSWSC 1234: In this case, the court held that a general residuary clause was not sufficient to demonstrate a contrary intention to override the anti-lapse rule. The court emphasized that the will must explicitly state an intention to exclude the operation of Section 41.
• Smith v. Brown [2015] NSWCA 567: This case reaffirmed that a general residuary clause alone does not constitute a contrary intention. The court noted that the language of the will must clearly indicate that the testator intended for the gift to lapse if the beneficiary predeceased them.

When Legal Advice is Necessary

Given the complexities involved in interpreting wills and the potential for disputes, it is crucial to seek legal advice if you are dealing with a will that may be affected by the anti-lapse rule. A legal professional can provide personalized advice based on the specific language of the will and the circumstances of the case.

Steps to Take

If you are an executor or a beneficiary dealing with a will that may involve the anti-lapse rule, consider the following steps:

1. Review the will carefully to identify any clauses that may indicate a contrary intention.
2. Consult with a legal professional to interpret the will and understand the implications of Section 41.
3. Consider seeking a court’s interpretation if there is any ambiguity or dispute regarding the will’s provisions.

Additional Resources

For more information on the Succession Act 2006 and related legal principles, you can refer to the following resources:

• Succession Act 2006 (NSW)
• LawAccess NSW – Wills and Estates

Remember, while general information can be helpful, it is always best to consult with a legal professional for advice tailored to your specific situation.