Criticism of Precedential Construction

Despite its considerable refinement over a large number of cases, the precedential method of general intention construction is open to criticism on grounds of artificiality. It is an unrealistic method of discerning the true intention of testators because close attention to precedent ties the hands of judges in any given case. It removes their discretion because they must always proceed with reference to past wills. These difficulties have been judicially acknowledged. In the New South Wales Case, Attorney General v Perpetual Trustee,61 _{Dixon and Evatt JJ observed:}

A distinction in trusts declared for charitable purposes has thus come to exist which, however clear in conception, has proved anything but easy of application.62

Precedential construction binds judges to decisions in past wills and prevents them from coming to a flexible and appropriate decision in varied circumstances. In Attorney General v Public Trustee,63 Hope JA made the point directly. A testatrix had left a gift to the general purposes of the ‘Margaret Reid

61 _{(1940) 63 CLR 209} 62_{Ibid 225}

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Orthopaedic Hospital’, an organisation which had closed before her death. The orthopaedic hospital had been run by an umbrella organisation named ‘The New South Wales Society for Crippled Children’ which continued to exist at the date of the judgement. At first instance, McLelland J had followed precedents in relation to the formal indications present in the will. The report states of the first instance judge:

He referred, among other things, to what he regarded as an established principle that it is very difficult to find a general charitable intention when the testator elected a particular charity, taking some care to identify it, and the charity ceases to exist before the testator’s death, and that it was much easier to find a general charitable intention where the charity described in the will has never existed. 64

On appeal, Hope JA did not follow precedent. Despite the strength of past decisions, he constructed the will on its own terms. The judge found inter alia

that the gift was for the ‘general purposes’ of the closed hospital. He held that the gift could be constructed as being intended for the wider umbrella society, rather than the specific closed hospital. In reaching his conclusion, the judge appeared to reject the process of precedential construction. He noted with some irony:

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One of the problems in this area of the law is the mass of reported decisions on particular cases. It is as if most decisions on whether negligence had been established on particular facts are reported.65

The judge continued:

I would also like to emphasise what has been said so often, namely, that little assistance is to be obtained from a consideration of decisions in other wills… Whilst a reference to decisions in other wills may throw light on matters that may well be taken into account, they throw little if any light on how they should be taken into account in any particular set of circumstances. 66

Outright rejection of the precedential method is rare, but not unique. In the South Australian case Executor Trustee v Warbey,67 _{three sisters had left funds}

for the establishment of a Church of England hospital in the Diocese of Adelaide with surgical and midwifery sections. The sisters had left sufficient funds, but in view of the very weak demand for such a service, the synod refused to accept the gift.

Bray CJ carefully constructed the language of the will, looking for indications of a general or particular intention. But the judge candidly admitted he had wavered on the appropriate construction. On this point, he memorably noted

65_{Ibid 553} 66_{Ibid 554}

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that he had been invited to, ‘toss a penny, though [counsel], said that in the interests of charity the penny should be a double-headed one.’68 _After

admitting that the language of the will was ambiguous in terms of the construction of general intention, Bray CJ continued:

To decide this question it is often necessary to have recourse to something approaching more nearly to divination or intuition than to interpretation in the accustomed sense, but I have to fulfil the obligation imposed on me by the law.69

Bray CJ did find a general charitable intention, but his comments show his doubts with regard to the precedential process. Such doubts extend to the point where the judge candidly stated that he was ‘divining’ intention rather following the precedential method of construction.

Legal ambiguity is unsatisfactory in testamentary cases where judges seek to effect the genuine intention of testators. And so it is unsurprising that there have been sustained attempts at reform. These have varied across the jurisdictions. In England, it has been left to judges to suggest new approaches, whereas in Australia and New Zealand there has been a sustained attempt at statutory reform. The next two sections evaluate the statutory alterations to the common law in the light of the testamentary imperative that wills should be constructed realistically.

68_{Ibid 345} 69_{Ibid 346}

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