A clause in a homemade will can appear crystal clear to the person writing the will, yet it can be very ambiguous to another person reading it after the will-maker has died. The proliferation of homemade wills has caused a substantial increase in the number of applications to the Supreme Court of Queensland to construe (interpret) unclear will clauses. Many people think making a homemade will saves money, but the reality is often quite the contrary. Frequently the words used by the will-maker are not clear and it is necessary to ask the court to interpret the will.

It may be thought that an application to the court about the meaning of a will clause is an unnecessary expense. But it puts a different perspective on it if you put yourself in the shoes of the executor who could be personally liable if the estate is not properly distributed in accordance with the will. A gift in a will that has not been properly drafted may have two or more meanings. The differing meanings may in turn lead to different outcomes for two or more potential beneficiaries.

An example of a will clause that made perfect sense to the will-maker, but not to his executors or the court, can be found in the High Court of Australia case of Ritchie v Magree (1964) 114 CLR 173. In that case the will-maker left a will that stated:

“I also direct that my wife Mildred Maria Wilson is to have full use of my property situated at 81 Harris Street, Harris Park and that upon her death the property 81 Harris Street, Harris Park is to become the property of my daughter, Helen Kathleen Wilson.”

This part of the gift seemed clear enough – it meant that Mildred was to reside in 81 Harris Street, Harris Park for her lifetime and after her death it became the property of Helen.

But the following three sentences in the clause caused the executors to apply to the court for interpretation:

“The remainder of my real and personal possessions is to become the property of my wife Mildred Maria Wilson. I also direct that my wife Mildred Maria Wilson is at liberty to dispose of any portion of my estate if she thinks it is advisable with the exception of course the property known as 81 Harris Street, Harris Park. I also direct that upon the death of my wife Mildred Maria Wilson all of that portion of my possessions remaining is to become the property of my daughter Helen Kathleen Wilson.”

What do you think the clause means? You may think that the clause is clear enough. You may think that this clause means that the will-maker’s estate (apart from the property at 81 Harris Street, Harris Park) was to be held by the trustees for Mildred to use for her lifetime, but then, on her death, it was to be given to Helen.  If you thought that, then you would apparently be wrong.  In fact, only one of the three judges who decided this case considered that that was the correct interpretation of the will. The remaining two judges considered the clause was too ambiguous for them to be able to ascertain exactly what the will-maker meant. They found that Mildred could live in the Harris Street property for her life and upon her death the property would go to Helen. But, as for the residue of the will-maker’s estate, it was given outright to Mildred.

You may think that the decision in this case is really of no consequence to Helen because her mother Mildred naturally would have left a will leaving everything to her daughter, Helen. Unfortunately, this was not the case. It appears that Mildred made a will that gave her estate to someone other than Helen. Mildred probably believed that Helen would inherit all of her father’s estate under his will. What a devastating outcome for Helen!

The court will use its best endeavours to interpret a will to give effect to the will-maker’s intentions, but as you can see it is not always easy to ascertain what the will-maker means. There are many rules of interpretation that a court will use to assist it in discerning the will-maker’s intention as expressed in the will.  Unless you have studied these rules, it is very easy to make a mistake. Don’t do your own will. Get an expert to do it for you. You will save your estate a great deal of money by avoiding costly court applications and you will ensure that what you actually want to happen with your estate is put into effect.

How We Can Help

If, however, you find yourself in the unenviable position of being the executor of a will that contains ambiguous terms, see us as soon as you can. Executors are entitled to legal advice to assist them in the execution of their duties, and the legal fees for that advice will almost always be paid from the estate.  As an executor, don’t leave it to chance that everyone will agree on the way you choose to distribute the estate.  See the experts at Quinn & Scattini and take home the peace of mind that comes from receiving the correct advice.

Contact Us

Get the best representation. Contact Quinn & Scattini Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.