Will Disputes in Victoria

In Victoria, what happens if a beneficiary predeceases the testator?

Habersberger J in Kavanagh v Reardon [2012] VSC 174 said at 10:

The general rule is that, subject to any contrary intention expressed in the will, a beneficiary named in a will must be alive at the date of the testator’s death in order to take the gift. That is, if the beneficiary predeceases the testator, the gift lapses. However, as a result of s 45 of the Wills Act 1997 (Vic), a benefit given to a child or other issue under a will does not lapse where the predeceased child or other issue leave issue of their own, in which case those issue stand in the place of the deceased child or other issue and take the benefit. That is the result unless “a contrary intention appears in the will”. Section 45 and its Victorian predecessors were modelled on s 33 of the Wills Act 1837 of the United Kingdom, although some differences have emerged over time with respect to how the lapse is prevented.

Section 50 of the Wills Act 1997 (Vic) provides:

A person who has possession and control of a will, a revoked will or a purported will of a deceased person must allow the following persons to inspect and make copies of the will (at their own expense) –

(a) any person named or referred to in the will, whether as beneficiary or not;

(b) any person named or referred to in any earlier will as a beneficiary;

(c) any spouse of the testator at the date of the testator’s death;

(d) any domestic partner of the testator;

(e) any parent, guardian or children of the deceased person;

(f) any person who would be entitled to a share of the estate if the deceased person had died intestate;

(g) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;

(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

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