Ethos Winter 2020

Page 22


Po-tay-to, po-tah-to How construing a Will can cause some headaches

The Law Society’s Elder Law & Succession Law Committee shows how ‘standard’ wording in Wills relies on everybody having the same interpretation of words — a linguistic nirvana that simply doesn’t exist.

Sometimes, what one person regards as clear and concise communication can be totally opaque to another. What seems perfectly plain to the person who prepared the document can be construed completely differently by the person reading it.

is required to consider any relevant surrounding circumstances.

This particularly applies to legal documents such as Wills, especially in ‘home-made’ documents.

It is also said that the Court is entitled to sit in the “testator’s armchair”.2

When interpreting Wills, it is accepted that the aim is to determine the testator’s intention. To do so, the Courts have regard to the Will ‘as a whole’. This means that the first task of a Court is to analyse the ordinary meaning of the words in the Will, and whether the Will makes sense. If the Will does not make sense, the Court


In effect, “the Court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will”.1

“When seated there, however, the Court is not entitled to make a fresh Will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said.”3 The following recent cases show that construing a Will is not at all a simple process, and the outcome can be surprising to the parties involved.

Right to reside for life Nomchong v Vey-Cox concerned the construction of the Will of the late Dulcie Carroll.4 The first defendant was the deceased’s daughter, who received, amongst other gifts, a right to reside for life in the deceased’s property on the condition that she paid rates and other outgoings and kept and maintained the property in good repair. The Will also provided to set aside the amount of $100,000 to defray any costs incurred or associated with the first defendant’s trust. Issues arose between the parties because council rates had not been paid on time, and with regard to the property’s state of repair.