Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 40

Charges on property of deceased to be paid primarily out of the property charged

40. Charges on property of deceased to be paid primarily out of the property
charged



(1) Where a person dies possessed of or entitled to or under a general power
of appointment (including the statutory power to dispose of entailed
interests) by his will disposes of an interest in property which at the time
of his death is charged with the payment of money whether by way of mortgage
charge or otherwise (including a lien for unpaid purchase money) and the
deceased has not by will deed or other document signified a contrary or other
intention the interest so charged shall as between the different persons
claiming through the deceased be primarily liable for the payment of the
charge; and every part of the said interest according to its value shall bear
a proportionate part of the charge on the whole thereof.

(2) Such contrary or other intention shall not be deemed to be signified-

   (a)  by a general direction for the payment of debts or of all the debts of
        the testator out of his personal estate or his residuary real and
        personal estate or his residuary real estate; or





   (b)  by a charge of debts upon any such estate-

unless such intention is further signified by words expressly or by necessary
implication referring to all or some part of the charge.

(3) Nothing in this section shall affect the right of a person entitled to the
charge to obtain payment or satisfaction thereof either out of the other
assets of the deceased or otherwise.