Where a Will is poorly drafted to the point where the Will, or any part of it raises questions on the administration of the estate, it may be up to the Supreme Court (referred to as the Court of Construction) to determine how the Will should be construed.
Examples of where the wording of a Will may be unclear, uncertain or ambiguous can include:
- where the intention of the deceased cannot be properly identified from the terms used in the Will;
- it is unclear on who certain beneficiaries are;
- ambiguous and generic terms have been used to group beneficiaries;
- where there is an invalid or failed gift; or
- where there is no clear beneficiaries for any ‘residue’ assets.
Rectification
The process involved in rectifying an unclear or uncertain Will can be lengthy and costly however it is possible and the Court is provided a discretionary power under legislation to rectify a Will so that it carries out the testamentary intentions of the deceased. In Victoria, the power to the Court is provided under section 37 of the Wills Act 1997 which provides that the Court can rectify a Will where it is satisfied that the Will does not carry out the deceased’s intention because:
- a clerical error was made; or
- the Will does not give effect to the deceased’s intentions.
If rectification of a Will is necessary, an application must be made to the Court within 6 months from the date of the Grant of Probate, however this date may be extended in certain circumstances.
A recent case study – Brown v Hunt [2021] VSC 683
In this case, an application was made to the Court for a determination in regards to the intention of the deceased as to the following clause:
I give the sum of one million dollars ($1,000,000) to such biological child or children of my said grandson Matthew Alex Hunt (being my great-grandchild or great-grandchildren) as survive me and if more than one in equal shares upon attaining the age of thirty (30) years.
On face value, the clause does not appear unclear or controversial however, due to circumstances at the time the Will was made and also at the time of death, there was a question as to who the deceased intended was to receive this gift.
At the time the Will was made, Mr Hunt had one child and had told the deceased that he did not intend to have any further children however, after the deceased’s death and at the time the application was made to the Court, he had a further child.
The question the Court needed to determine was whether the class of beneficiaries (ie: the children of Mr Hunt) was closed with only Mr Hunt’s first child being an entitled beneficiary to the gift.
The Court held that this was not the case at all and that the proper construction of the clause should be construed such that the class of beneficiaries (being Mr Hunt’s children) does not close until his first-born reaches 30 years of age.
By looking at the evidence admitted, the Court looked at the age of Mr Hunt and the possibility of him having more children, the number of children he had, his stage of life and the fact that the deceased had spoken with her lawyer previously about the possibility of him having more children. In making this determination, the court needed to analyse terms within the clause such as “survive me” and “in equal shares”. The Court was satisfied that “survive me” was intended to represent all children of Mr Hunt including those born after the death of the deceased with the term “in equal shares” an indication of the extension of the clause.
What should you do?
We recommend that you review your Will every few years, or when your circumstances change, to ensure that there is no uncertainty or ambiguity. If you have any concerns regarding the wording of your Will or if you are an executor of an estate and believe the wording of a Will is unclear or uncertain, please contact our Wills and Estates Team at melbourne@nevettford.com.au or on +613 9614 7111.