Re Lapalme; Daley v Leeton [2019] VSC 534

Ms Lapalme made a Will in 2004. 

In that Will, she left the residue of her estate to “those grandchildren as shall survive me and attain the age of 18 years as tenants in common in equal shares”. 

At the date of her Will, she had only one grandchild. 

Ms Lapalme passed away in 2015. At the time of her death, she had three grandchildren. 

Two more children were born between the date of her death and the date of the hearing. 

The Court was asked to determine which grandchildren were to share in the residue of Ms Lapalme’s estate; only those alive at the time of the Will or at the time of her death or even those born after her death. 

The Court observed that, subject to the terms of the Will and surrounding circumstances, “where a beneficiary under a will is identified by way of description, the law presumes those who fulfil that description at the date of execution of the will take the gift”. However, that presumption is displaced where the gift is to a class of beneficiaries, such as this one, in which case those who fulfil the description at the date of death will take the gift. 

As to those grandchildren that were born after the date of death, the Court considered Ms Lapalme’s intention – that it would be highly improbable that Ms Lapalme would have intended to exclude grandchildren born after her death. 

A secondary issue arose as to when does the class of beneficiaries close especially if two children born after her death were included in the class? The Court held that when one grandchild attains the age of 18 years is when the class of beneficiaries closes, that is, when one of the grandchildren meet the condition(s) in the Will. 

Interestingly, the Court concluded that even a grandchild that was conceived but not born as at the date the class closed was included in that class of beneficiary. This seems at odds with the ordinary meaning of “those grandchildren as shall survive me” but it is an established principle of succession law that even an unborn child (that is subsequently born alive) is part of a relevant class of beneficiaries.

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