Page 4105 - Week 14 - Tuesday, 22 October 1991
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In effect, the court defeated the intention of this good, murdered woman. Now, were that to happen, God forbid, in this Territory, her intention will not be defeated. All this is pretty exciting stuff to lawyers.
I turn now to new section 12B, in clause 8. There are many cases where injustice has been done because the courts construing wills - - -
Mr Berry: There is only one lawyer I see excited about it.
MR COLLAERY: I warned Mr Berry - through you, Madam Temporary Deputy Speaker - that we were going to be a while on this, but he wanted to plough on. There are many cases where injustice has been done because the courts construing wills have been prevented by the rules that bind a court of construction from looking at facts which would tell the court precisely what the testator meant.
An example is a much publicised case, that all law students recall, Re Hodgson, 1936. In that case a nurse left all her "money" to a named beneficiary. When she died she had in her case by the side of her bed some 800 pounds in cash and 600 pounds in savings certificates. The court was bound by a rule that money does not include savings certificates. She had therefore failed to give her savings certificates, and, instead of going to the named beneficiary, they went to the Crown, probably bona vacantia - I am not clear on that. So, the court did not admit statements that she had made. The new section 12B will allow the Supreme Court to look at the circumstances and anything the testatrix might have said to decide what she meant.
I do not know whether the Attorney has been introduced to the Pearson estate yet.
Mr Connolly: I know all about that one.
MR COLLAERY: The Pearson estate includes a bona vacantia in this Territory of $1m. Mr Pearson, from Deakin, died without a will; but he had written a letter saying to whom he would like the money to go, in effect, and there was the extrinsic evidence of those who had cared for him. He took his life in the bath and left us all at sea. In effect, the Treasury at the moment has the $1m. Were the law as it will be shortly, Mr Pearson might recover his intention ex post facto.
Clause 10, new section 15, provides for a will to be attested by a beneficiary or a spouse of a beneficiary. The intention of many testators has been frustrated by the nineteenth century rule that a witness to a will and the spouse of a witness to the will are prohibited from taking a benefit under that will. The South Australian version of the rule was abolished in 1975 and it is high time that it was abolished here.
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