Report No. 110

Chapter 31

Election (Sections 180 to 190)

I. Principle of Election

31.1. Scope.-

The topic of election is dealt with in eleven sections (180 to 190).

A person on whom a benefit is conferred by a will must adopt the whole contents of the instrument, conform to all its provisions and renounce every right inconsistent with it. This in brief, is the gist of the doctrine of election which forms the basis of this Chapter. The basic section is section 180, the rest being concerned with particular applications of the doctrine or qualifications thereof.

31.2. Section 180-Circumstances in which section takes place.-

Section 180 formulates the principle in these terms.

"180. Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will"1.

1. Emphasis added.

31.3. Doctrine of approbate and reprobate.-

In Douglas Benzies v. Ltpphelby, 1908 AC 224 (232), Lord Robertson referred to the principle of election as being the same as the doctrine1 of "approbate and reprobate", and observed:

"In considering the merits of the decision appealed against, it is well to remember what is the doctrine of approbate and reprobate invoked by the appellant. Although the name is different, the principle as was laid down by Lord Eldon in Ker v. Wauchope, (1819) 1 Bligh 1. is the same as that of the English law of election. It is against equity that any one should take against a man's will and also under it. This rests on no artificial rule, but on plain fair dealing. If any one has the right by law to take a share of a testator's estate, which the testator has not given but has otherwise disposed of, that person takes it against the will and cannot go on to found on the will and claim its benefits".

In a later case2 Lord Atkinson quoted with approval the passage above cited from the judgment of Lord Robertson.

1. See also para. 31.2, supra.

2. Pitman v. Gram Ewing, 1911 AC 217.

31.4. The principle that a person cannot both "approbate and reprobate" (to use terms used in Scottish Law1, finds expression in the law of Wills2 as also in the law of deeds3. The principle is discussed by the Editor of Swanston's Reports, in a very learned note on the leading English ease on the subject4.

1. Cf. Douglas Menzies v. Upphelby, 1908 AC 224 (Lord Robertson).

2. See also para. 31.5, infra.

3. Compare section 35, Transfer of Property Act, 1882.

4. Dillon v. Parler, 1 Swan 359, particularly, notes at pp. 381, 384.

31.5. Universal application.-

The principle is of universal application, and is not peculiar to English law. As the Privy Council observed long ago1, it is "common to all law which is based on the rules of justice, viz., the principle that a party shall not at the same time affirm and disaffirm the same transaction-affirm it as far as it is for his benefit and disaffirm it, as far as it is to his prejudice".

If, therefore, a testator has purported to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs. The devisee or legatee, accepting the benefit so given to him, must make good the testator's attempted disposition. But, if on the contrary, that person choses to enforce his proprietary rights against the testator's disposition, then equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights.

This is the broad position in England, resulting from the principle referred to above. With a very important difference (to be presently noticed)2, section 180 also carries out the principle referred to above.

1. Rungatnna v. Atcbmma, 4 MIAI 10 (PC).

2. See para. 31.6, infra.