Lawyers are nothing if not dramatic, and the subtly titled ‘Rule of Despair’ is no exception. Despite its theatrical name, the rule (although not a codified legal doctrine), provides guidance in situations where a will contains two clauses that conflict.
The ruIe of despair dictates that when two clauses in a will clash, the last clause prevails. This is said to be because the later occurring clause, of the two conflictingrepresents the testator’s final intention.
However, another perspective is that the order of the clauses should have no impact as they were both, at a point in time, wishes of the testator. As a result, the clauses should hold equal weight in the interpretation and construction of the will.
This rule has been subject to criticism, with some discussion that it should only be applied as a last resort where clauses can, in no circumstances be reconciled.
Two decisions of the Supreme Court of Victoria highlight the complexity of the operation of the rule.
Thomson v Thomson
In Thomson v Thomson, the deceased died leaving a will containing two clauses that dealt with and distributed the residue of the estate which appear (initially) to be completely inconsistent with one another.
The first clause distributed the residue equally between the deceased’s two sons and in the event that only one son survived, they received the entire residue.
However, the second clause directed that if a son predeceased the testator, then their children would take their father’s share.
At the time of the deceased’s death, she was survived by only one of her two sons, Kenneth, her other son, Raymond, predeceased her.
Vickery J ultimately determined that the two clauses operated in different circumstances; the former if both sons survived, or if one son survived but did not have any children. The second clause was, in his view, to operate where the son predeceased the testator, leaving children.
In His Honour’s view, reconciliation of the two clauses was possible and therefore the rule of despair should not be utilised. As a result, the second clause was to take effect and the grandsons of the testator took their deceased father’s share.
In making his decision, His Honour noted that a key principle of interpreting and construing a will is to give effect to every word without changing or removing anything,if possible.
In addition to this, he drew attention to the principle that a construction or interpretation that strips a word or words of their meaning or effect is a likely cause of misconstruction of the contents of a will.
Re Robertson
In Re Robertson, the deceased died leaving a will dated 4 October 1963. One clause of the will left the residue of the estate to a niece and three brothers. However, a later clause left the residue of the estate to the Royal Children’s Hospital and the Royal Women’s Hospital.
Stark J concluded that the two clauses could be reconciled by assuming that the testator intended that the later clause would operate in the event that the bequests in the former clause failed. As the gift to the brothers and niece did not lapse or fail, they received the residue of the estate.
Conclusion
These authorities, among many others, demonstrate a general tendency to avoid the use of the rule of despair. The Court has shown a seemingly consistent view that a testator provided instructions for their will and wherever possible, the entirety of their intentions should give effect to; a clause in a will should never be simply abandoned unless absolutely necessary.
