Property Law Act 1969 (WA)

Western Australia Property Law Act 1969 Western Australia Property Law Act 1969 Contents Part I — Preliminary 1. Short title 2 2. Commencement 2 4. Repeals 2 5. Savings 2 6. Application of this Act to certain Acts 3 7. Terms used in this Act 3 Part II — Deeds and other instruments 8. Construction of expressions used in deeds and other instruments 7 8A. Other valuation procedures 8 9. Formalities of deed 9 10. Execution of instruments by or on behalf of corporations 9 11. Persons taking who are not parties 11 12. Description of deeds 11 13. Conditions and certain covenants not implied 12 14. Receipt in deed sufficient 12 15. Receipt in deed or endorsed evidence 12 16. Construction of supplemental or annexed instrument 12 Part III — General rules affecting property 17. Tenant for life without impeachment of waste, not to commit equitable waste 13 18. No merger at law where none in equity 13 19. Suits for possession of land by mortgagors 13 20. Assignment of debts and choses in action 13 21. Stipulations not of the essence of a contract 14 22. Satisfied terms, whether created out of freehold or leasehold land, to cease 14 23. Estates tail abolished 15 24. Creation by deed of freehold in futuro 16 25. Creation by deed of estate in chattel real 16 26. Contingent remainders to take effect notwithstanding premature failure of preceding estate 16 27. Rule in Shelley's Case abolished 16 28. Restriction on executory limitations 17 29. Corporations may hold as joint tenants 17 30. Receipts for income by married minors 18 31A. Illegitimates to be included in class references 18 Part IV — Conveyances and other instruments 32. Lands lie in grant only 20 33. Conveyances to be by deed 20 34. Instruments required to be in writing 21 35. Creation of interests in land by parol 21 36. Savings in regard to sections 34 and 35 21 37. Power to dispose of fee simple by deed without words of inheritance 22 38. No use to result from absence of consideration 22 39. Limitations may be by direct conveyance without uses 22 40. No conveyance to have tortious operation 23 41. General words implied in conveyances 23 42. All estate clause implied 24 43. Partial release of land from rent 24 44. Power to person to convey property to himself etc. 24 Part V — Covenants 45. Covenants for title implied 25 46. Construction of implied covenants 27 47. Benefits of covenants relating to land 27 48. Burden of covenants relating to land 28 49. Construction of covenants affecting land 28 50. Covenants to be joint and several 28 51. Effect of covenant with 2 or more jointly 29 52. Covenants and agreements entered into by a person with himself and another or others 29 Part VI — Mortgages 53. Foreclosure extinguishes right of action for mortgage debt and equity of redemption 30 54. Realisation of equitable charges by the Court 30 55. Sale of mortgaged property in action for redemption or foreclosure 31 56. Restriction on consolidation of mortgages 32 57. Implied powers of mortgagees 33 58. Power to appoint receiver in the case of mortgage under the Transfer of Land Act 1893 35 59. Regulation of exercise of power of sale 35 60. Conveyance in exercise of power of sale 36 61. Application of proceeds of sale 36 62. Provisions as to exercise of power of sale 37 63. Mortgagee's receipts, discharges etc. 37 64. Amount and application of insurance money 38 65. Appointment, powers, remuneration and duties of receiver 39 66. Application of money received by receiver 40 67. Effect of advance on joint account 41 68. Notice of trusts affecting mortgage money 42 Part VII — Leases and tenancies Division 1 — Application of this Part 68A. Limitation 43 Division 1a — General 69. This Part to apply to leases under the Transfer of Land Act 1893 43 70. Tenant not prejudiced by assignment before notice 43 71. Tenancy from year to year not implied 44 72. Termination of tenancies 44 73. Waiver of a covenant in a lease, not to operate as general waiver 44 74. Abolition of interesse termini, and as to reversionary leases and leases for lives 45 75. Effect of extinguishment of reversion 45 76. Apportionment of conditions on severance 46 77. Rent and benefit of lessee's covenants to run with reversion 47 78. Obligation of lessor's covenants to run with reversion 48 79. Effect of licences granted to lessees 48 80. Consent to assign or sublet not to be unreasonably withheld 49 81. Restrictions and relief against forfeiture of leases and under‑leases 50 82. Certain assignments not to be deemed a breach 53 83. Surrender of head lease to grant new lease not to prejudice under‑lease 53 Division 2 — Options in leases 83A. Interpretation 55 83B. Construction and application of Division 55 83C. Breach of certain obligations not to preclude lessee from exercising option in certain circumstances 56 83D. Court may grant relief from breach of certain obligations 57 83E. Lease to continue in force until issue decided 58 Part VIII — Powers of attorney 84. Execution by attorney in his own name 61 85. Continuance until notice of death or revocation received 61 86. Irrevocable power of attorney for value 62 87. Power of attorney made irrevocable for fixed time 63 88. Application to corporations 64 Part IX — Voidable dispositions 89. Voluntary conveyances to defraud creditors voidable 65 90. Voluntary disposition to defraud purchasers voidable 65 91. Subsequent conveyance not to be evidence of intent to defraud 65 92. Acquisitions of reversions at an under value 65 Part X — Powers of appointment 93. Disclaimer etc. of powers 67 94. Effect of disclaimer etc. 67 95. Protection of purchasers claiming under certain void appointments 67 96. Validation of appointments where objects are excluded or take illusory shares 68 97. Execution of powers not testamentary 68 98. Application of this Part to existing powers 69 Part XI — Perpetuities and accumulations 99. Application 70 100. Terms used in this Part 70 101. The perpetuity period 71 102. Capacity to procreate or bear a child 71 103. Wait and see rule 72 104. Power of Court to make declaration as to validity of limitations 73 105. Invalid age contingencies 73 106. Class gifts 74 107. Order of applying rules 74 108. Unborn spouses or de facto partners 75 109. Dependent limitations 75 110. Options 76 111. Application of the rule to possibilities of reverter, rights of entry and resulting trusts 76 112. Powers of appointment 77 113. Accumulations of income 77 114. Rule in Whitby v. Mitchell abolished 78 115. Superannuation funds etc. 78 Part XII — Succession 118. Intermediate income of executory or contingent gifts 80 119. Application of section 120 80 120. Devolution of property in cases of simultaneous deaths 81 Part XIII — Easements, encroachments and mistake 121. Easement of light and air only by registered grant or instrument 84 122. Power of Court to grant special relief in cases of encroachment 84 123. Relief in cases of mistake as to boundaries or identity of land 86 124. Recovery of payments made under mistake of law 88 125. Payments made under mistake of law or fact not always recoverable 89 Part XIV — Partition of land and division of chattels 126. In action for partition Court may direct land to be sold 90 127. Proceeds of sale, how applied 91 128. Costs in partition suits 92 129. Division of chattels 92 Part XV — Apportionment 130. Terms used in this Part 93 131. Income apportionable in respect of time 93 132. Time when apportioned part payable 93 133. Recovery of apportioned parts 94 134. Exceptions and application 94 Part XVI — Service of notices 135. Mode of service 95 First Schedule — Adopted Acts ceasing to have effect Second Schedule — Acts repealed Third Schedule — Implied covenants Part I — Conveyance for valuable consideration Part II — Conveyance of leasehold Part III — Conveyance by way of mortgage Part IV — Conveyance by way of mortgage of leasehold Part V — Conveyance by way of settlement Part VI — Conveyance by person other than beneficial owner Fourth Schedule — Conveyance Notes Compilation table 105 Other notes 107 Defined terms Western Australia Property Law Act 1969 An Act to amend and consolidate the law relating to property and for incidental purposes. Part I — Preliminary 1. Short title This Act may be cited as the Property Law Act 1969. 2. Commencement This Act shall come into operation on a date to be fixed by proclamation. [3. Deleted: No. 10 of 1998 s. 76.] 4. Repeals On the coming into operation of this Act — (a) the Acts of England and the United Kingdom specified in the First Schedule cease to have effect in the State and the provisions of the Acts by which the first mentioned Acts were adopted in the State are repealed; and (b) the Acts specified in the Second Schedule are repealed to the extent mentioned in that Schedule. 5. Savings Without prejudice to the operation of the Interpretation Act 1918 1, any alteration, by this Act, of the law whether by the repeal of an enactment, or otherwise, does not, unless otherwise expressly provided by this Act affect — (a) any right accrued, or obligation incurred, before the date of the coming into operation of this Act under the law so altered; or (b) the validity or invalidity, or any operation, effect or consequence, of any instrument executed or made, or of anything done or suffered before that date; or (c) any action, proceeding or thing pending on that date or uncompleted on that date and that action, proceeding and thing may be carried on and completed as if the enactment had not been repealed, or the law otherwise altered. 6. Application of this Act to certain Acts Except as in this Act expressly provided, this Act so far as inconsistent with the Transfer of Land Act 1893, the Community Titles Act 2018 or the Strata Titles Act 1985, does not apply to land that is under the provisions of any of those Acts. [Section 6 inserted: No. 42 of 2011 s. 21; amended: No. 32 of 2018 s. 228.] 7. Terms used in this Act In this Act unless the contrary intention appears — bankruptcy includes insolvency and liquidation by arrangement, and also any other act or proceeding in law having under any law for the time being in force, effects or results similar to those of bankruptcy; conveyance includes a mortgage, charge, lease, assignment, appointment, transfer, assent, vesting declaration, disclaimer, release, surrender, extinguishment and every other assurance of property or of an interest therein by any instrument, except a will; and convey has a corresponding meaning; Court means the Supreme Court or a Judge; deed in relation to land under the Transfer of Land Act 1893, includes an instrument having the effect of a deed under that Act; disposition includes a conveyance and also a devise, bequest or an appointment of property contained in a will; and dispose of has a corresponding meaning; encumbrance includes a legal or equitable mortgage, a trust for securing money, a lien and a charge of a portion, annuity, or other capital or annual sum; and encumbrancee has a corresponding meaning, and includes every person entitled to the benefit of an encumbrance or entitled to require payment or discharge of the encumbrance; fine includes a premium or foregift and any payment, consideration or benefit in the nature of a fine, premium or foregift; income in relation to land includes rents and profits; instrument includes deed and will but does not include a statute, unless the statute creates a settlement; land includes land of any tenure and mines and minerals whether or not they are held apart from the surface of the land, a building or part of a building, whether the division of the building is horizontal, vertical or made in any other way, and other corporeal hereditaments, and also includes a rent and other incorporeal hereditaments and an easement, right, privilege or benefit in, over or derived from the land and an undivided share in land; land under the Transfer of Land Act 1893 means any estate or interest registered, or incorporated in the Register, under that Act; lease includes an under‑lease or other tenancy; lessee includes an under‑lessee and a person deriving title under a lessee or under‑lessee; lessor includes an under‑lessor and a person deriving title under a lessor or under‑lessor; mines and minerals include any strata or seam of minerals or substances in or under any land and the right to work and get the minerals and substances; mortgage includes a charge or lien on any property for securing money or money's worth; mortgage, "mortgagee" and "mortgagor" in relation to land under the Transfer of Land Act 1893, have the same respective meanings as they have in that Act; mortgage money means the principal interest or other money or money's worth secured by a mortgage; mortgagee includes any person from time to time deriving title under the original mortgagee and mortgagee in possession means a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property; mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage, according to his estate, interest, or right in the mortgaged property; notice includes constructive notice; periodic tenancy means a tenancy of no fixed duration and in respect of which the rent is payable weekly, monthly, yearly or for any other recurring period; personal representative means the executor, original or by representation or the administrator for the time being of a deceased person; possession in relation to land includes the receipt of income therefrom or the right to receive the income; property includes real and personal property and any estate or interest therein and any thing or chose in action; purchaser means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property; and where the context so requires "purchaser" includes an intending purchaser and purchase has a corresponding meaning; registered or duly registered means registered in the manner provided by the Transfer of Land Act 1893 where the land affected is under that Act, and otherwise means registered in the manner provided by, or incorporated in the Register under, the Registration of Deeds Act 1856 (19 Vic. No. 14); rent includes a rent service or a rent charge, or other rent, toll, duty, royalty or annual or periodical payment or money or money's worth reserved or issuing out of or charged upon land but does not include fee‑farm rent; represented person means a person in respect of whom an administration order is in force under Part 6 of the Guardianship and Administration Act 1990; right of redemption in relation to a mortgage includes an option to repurchase only if the option in effect creates a right of redemption; sale means a sale properly so called; securities include stocks, funds and shares; valuable consideration includes marriage but does not include a nominal consideration in money; will includes codicil and every other testamentary disposition. [Section 7 amended: No. 24 of 1990 s. 123; No. 32 of 2018 s. 229.] Part II — Deeds and other instruments 8. Construction of expressions used in deeds and other instruments In every deed, contract, will, order and other instrument that is executed, made or comes into operation after the coming into operation of this Act, unless the context otherwise requires — (a) month means a calendar month; (b) person includes a body corporate; (c) every word in the singular number shall be construed as including the plural number; (d) every word in the plural number shall be construed as including the singular number; (e) every word of the masculine gender shall be construed as including the feminine gender; (f) every word of the feminine gender shall be construed as including the masculine gender; (g) every word in either of the said genders or numbers shall be construed as including a body corporate as well as an individual; (h) where the effect of a provision, however expressed, is by the terms of that instrument made to depend upon the value placed or to be placed upon property — (i) in the assessment of death duty or any other duty or tax which by the law of any place is or may be payable consequent upon the death of a person in respect of any property, or which would or might have been payable had the duty or tax to which reference is made in the instrument not ceased to be payable at the time the valuation is required; or (ii) in any valuation obtained or to be obtained for the purposes of any such duty or tax, and by reason of any change in the relevant legislation since that instrument was executed, made, or came into operation a value is not placed thereon for that purpose, the instrument shall take effect as if it directed that a valuation of the property be made by a duly qualified person and the valuation so made shall, subject to the provisions of section 8A, be adopted for the purposes of that provision. [Section 8 amended: No. 102 of 1979 s. 3.] 8A. Other valuation procedures (1) On the application of a person having a proper interest in respect of a provision of the kind to which section 8(h) refers, the Court may, if it considers it desirable in all the circumstances (including any question as to the person who is to be responsible for causing the valuation to be made, any proposal for the making of such a valuation, or the circumstances attending any valuation made), direct that in lieu of that paragraph taking effect the provisions of the instrument shall be varied in such manner as the Court considers most likely to give practical effect to the intention underlying the instrument, and the Court may, in addition or in the alternative, make any other order in relation to the matter that the Court thinks desirable. (2) Where for the purposes of the Administration Act 1903, or any other Act by which no method of making such a valuation is prescribed, a value is required to be placed on any property the provision of that Act requiring the valuation shall have effect as though the provision had been contained in an instrument of the kind to which section 8(h) refers. [Section 8A inserted: No. 102 of 1979 s. 4.] 9. Formalities of deed (1) Every deed, whether or not affecting property — (a) shall be signed by the party to be bound thereby; and (b) shall be attested by at least one witness not being a party to the deed but no particular form of words is required for the attestation. (2) It is not necessary to seal any deed except in the case of a deed executed by a corporation under its common or official seal. (3) Formal delivery and indenting are not necessary in any case. (4) Every instrument expressed or purporting to be an indenture or a deed or an agreement under seal or otherwise purporting to be a document executed under seal and which is executed as required by this section has the same effect as a deed duly executed in accordance with the law in force immediately prior to the coming into operation of this Act. 10. Execution of instruments by or on behalf of corporations (1) A deed shall be deemed to have been duly executed by a corporation aggregate in favour of a purchaser, if the seal of that corporation is affixed to the deed in the presence of and attested by a person who is its clerk, secretary or other permanent officer or his deputy, and a member of its board of directors, council or other governing body. (2) Where a seal purporting to be the seal of a corporation aggregate has been affixed to a deed, attested by a person and a member purporting to be such a person and such a member as is referred to in subsection (1), the deed shall be deemed to have been duly executed and to have taken effect accordingly. (3) The board of directors, council or other governing body of a corporation aggregate may, by resolution or otherwise, appoint an agent either generally or in any particular case, to execute on behalf of the corporation any agreement or other instrument not under seal in relation to any matter within the powers of the corporation. (4) When a person is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name of, or on behalf of a corporation, sole or aggregate, he may as attorney for the corporation execute the instrument by signing the name of the corporation and adding the words "by its attorney" and his own signature in the presence of at least one witness and subject to the compliance by such person with the provisions of section 85(3), an instrument so executed takes effect as if duly executed by the corporation. (5) Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name or on behalf of any other person (including another corporation), an officer of the corporation aggregate appointed for that purpose by the board of directors, council or other governing body of that corporation by resolution or otherwise, may execute the instrument in the name of that other person; and if the instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorised. (6) The foregoing provisions of this section apply to transactions wherever effected, but only to instruments executed after the date of the coming into operation of this Act, except that, in the case of powers or appointments of an agent or officer, those provisions apply whether the power was conferred or the appointment was made before or after that date. (7) Notwithstanding anything contained in this section, any mode of execution or attestation authorised by law or by practice or by the statute, charter, memorandum or articles, deed or settlement or other instrument constituting the corporation or regulating the affairs thereof, are (in addition to the modes authorised by this section) as effectual as if this section had not come into operation. 11. Persons taking who are not parties (1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument that relates to the land or property. (2) Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but — (a) all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available; (b) each person named as a party to the contract shall be joined as a party to the action or proceeding; and (c) such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant. (3) Unless the contract referred to in subsection (2) otherwise provides, the contract may be cancelled or modified by the mutual consent of the persons named as parties thereto at any time before the person referred to in that subsection has adopted it either expressly or by conduct. 12. Description of deeds Any deed, whether or not it is an indenture, may be described (at the commencement thereof or otherwise) as a deed simply or as an agreement under seal, or as a conveyance, deed of exchange, settlement, mortgage, charge, transfer of mortgage, appointment, lease or otherwise according to the nature of the transaction intended to be effected. 13. Conditions and certain covenants not implied (1) An exchange, a partition or other conveyance of land made by deed does not imply any condition in law. (2) The word "give" or "grant" does not imply any covenant in law, save where otherwise provided by an Act. 14. Receipt in deed sufficient A receipt for any consideration, money or securities in the body of a deed is a sufficient discharge therefor to the person giving, paying or delivering the consideration, money or securities, without any further receipt therefor being endorsed on that deed. 15. Receipt in deed or endorsed evidence A receipt for consideration, money or other consideration in the body of a deed or endorsed thereon is, in favour of a subsequent purchaser, not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given, wholly or in part, sufficient evidence of the payment or giving of the whole amount thereof. 16. Construction of supplemental or annexed instrument Any instrument expressed to be supplemental to a previous instrument, or directed to be read as an annexure thereto, shall, as far as may be, be read and have effect, as if the instrument so expressed or directed were made by way of endorsement on the previous instrument, or contained a full recital thereof. Part III — General rules affecting property 17. Tenant for life without impeachment of waste, not to commit equitable waste An estate for life, without impeachment of waste, does not confer upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer that right expressly appears by the instrument creating that estate. 18. No merger at law where none in equity There shall not be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. 19. Suits for possession of land by mortgagors (1) Subject to subsection (2) a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter upon the receipt of the rents and profits thereof has been given by the mortgagee, may sue for that possession, or for the recovery of those rents or profits, or to prevent or to recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. (2) This section does not apply to a mortgagor or a mortgage to which section 117 of the Transfer of Land Act 1893 applies. 20. Assignment of debts and choses in action (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim that debt or chose in action, is effectual in law (subject to equities having priority over the right of the assignee), to pass and transfer from the date of the notice — (a) the legal right to that debt or chose in action; (b) all legal and other remedies for the debt or chose in action; and (c) the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor. (2) Where the debtor, trustee, or other person liable in respect of the debt or chose in action referred to in subsection (1) has notice — (a) that the assignment so referred to is disputed by the assignor, or any person claiming under him; or (b) of any other opposing or conflicting claims, to the debt or chose in action, he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the debt or chose in action, or pay the debt or other chose in action into court, under the provisions of the Trustees Act 1962. (3) For the purposes of this section any debt or other legal chose in action includes a part of any debt or other legal chose in action. 21. Stipulations not of the essence of a contract Stipulations in a contract, as to time or otherwise, that according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law in accordance with the rules of equity. 22. Satisfied terms, whether created out of freehold or leasehold land, to cease (1) Where the purposes of a term of years, created or limited at any time out of freehold land, become satisfied (whether or not that term either by express declaration or by construction of law becomes attendant upon the freehold reversion), that term of years merges in the reversion expectant thereon and ceases accordingly. (2) Where the purposes of a term of years, created or limited at any time out of leasehold land, become satisfied, that term merges in the reversion expectant thereon and ceases accordingly. (3) Where the purposes are satisfied as respects part only of the land comprised in a term, this section has effect as if a separate term had been created in regard to that part of the land. 23. Estates tail abolished (1) In any instrument coming into operation after the coming into operation of this Act, a limitation which, if this section had not operated would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable, as the case may be) in that land in favour of that person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail. (2) Where at the coming into operation of this Act any person is entitled to an estate tail (legal or equitable), whether in possession, reversion, or remainder, in any land, that person, except as hereinafter mentioned in this section, shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in that land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail. (3) In subsection (2) the expression estate tail includes that estate in fee into which an estate tail is converted where the issue in tail is barred, but the persons claiming estates by way of remainder are not barred; also an estate in fee voidable or determinable by the entry of the issue in tail; but does not include the estate of a tenant in tail after possibility of issue extinct. 24. Creation by deed of freehold in futuro An estate of freehold to take effect at a future time may be created by any deed by which a present estate of freehold may be created. 25. Creation by deed of estate in chattel real Any estate or interest that is capable of being created by will in any chattel real may also be created by deed. 26. Contingent remainders to take effect notwithstanding premature failure of preceding estate (1) A contingent remainder is and shall be deemed to have been capable of taking effect notwithstanding the destruction or determination by forfeiture, surrender or merger of any preceding estate of freehold in the same manner and in all respects as if the destruction or determination had not happened. (2) Every contingent remainder in tenements or hereditaments of any tenure that would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, is capable, in the event of the particular estate determining before the contingent remainder vests, of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other limitation. 27. Rule in Shelley's Case abolished Where in an instrument that comes into operation after the coming into operation of this Act a remainder is limited mediately or immediately to the heir or heirs of the body of a person to whom an estate for any life in the same property is expressly given, the estate of that person shall be an estate for that life with remainder to the persons who on the death of that person intestate would be beneficially entitled to his property and in the same shares. 28. Restriction on executory limitations (1) Where there is a person entitled to land for an estate in fee, or for a term of years absolute, or determinable on life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation is or shall become void and incapable o