Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Ambiguous Wills and the trouble they cause


Interpretation is the “action of explaining the meaning of something”, so what happens if someone’s Will is ambiguous? Who gets to decide what the Will-maker intended? Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, recently joined Robyn Hyland on Radio 4CRB to discuss interpretation issues when making a Will.

What happens if a Will has been written, and is unclear as to what the Will-maker wanted to do?

This is an issue that comes up frequently in relation to “do-it-yourself” (DIY) Wills and Will kits, but we have also seen this happen with Wills drafted by lawyers who do not practice exclusively or are not experienced in estate planning.

Making a simple mistake when drafting a Will, whether it be by trying to gift an asset that is jointly owned and cannot be gifted by your Will, or phrasing terms in the Will in a way that is not clearly outlining who is to receive the gift, can result in the gift failing altogether. This is also the case when the Will references a gift, such as property or other ‘chattels’, that are capable of being sold, but does not include a clause to clarify what happens if and when the property is sold before the person dies.

After someone dies, the Executor is required to administer the estate of the deceased person in accordance with the terms of the Will.

When a Will is unclear or has alternative interpretations it will fall to the Supreme Court to determine how the Will ought to be interpreted after a grant of probate has been made.

If a beneficiary is worried about the interpretation of an ambiguous Will and is not happy that the Executor has not properly investigated the issue or applied to the Supreme Court to determine the meaning, then a beneficiary can also file a Court Application seeking orders from the Court.

An example case of ambiguity

In a Western Australian case, the executors of a Will applied to the court to understand if the deceased had made a specific gift of farming land to his cousin.

The Will stated … “including all plant and machinery thereon or any interest I have in the said real and personal property.”

At the time of death, there were cattle living on the property. In addition, money was also found.

The issue was that it was unclear if the deceased intended the cattle and money to be part of the gift of farmland to his cousin or not.

If he did not intend these assets to be included as part of the gift, they would then fall into the residue of his estate.

In this case, the executor’s view was the Will referred to “all plant and machinery” and was not intended to refer to the cattle and money.

The beneficiary, the cousin, argued that the reference to “real and personal property” in the Will was referencing everything included on the farm.

The court determined that the gift left to the cousin was only of the farmland and there was no reason to extend that to the farming business, including the cattle and money in question. The court highlighted that although it was difficult to find a definition of the phrase “plant and machinery” its natural meaning would not include cattle. There was nothing to suggest an intention to give the gift of a “working farm”.

Accordingly, the cattle and money in question fell into the residuary estate and was distributed according to the Will and all costs for the dispute were paid from the estate.

These costs on the estate could have been avoided if the Will had been written in a more clear and concise way, ensuring all assets were planned accordingly.

How does a Court determine the interpretation of a Will?

The court will employ rules of construction to assist in the interpretation of a Will where there is doubt over the meaning. It is important to understand that the rules are not rigid.

The court cannot guess the intended meaning of the words in a Will if the words can be interpreted more than one way and each interpretation is as likely as the other.

The court’s role is not to give a more rational meaning to the Will, but to merely determine the intention as stated.

Where the intention of the testator is reasonably certain when you take into consideration the Will as a whole, and the plain and natural meaning of the words used in the Will, effect will be given to that intention rather than the “literal” meaning of the words.

The Queensland, New South Wales, and Victorian Succession legislation all provide for the admissibility of extrinsic evidence in relation to clarifying a Will.

There is no easy answer, but a myriad of different facts, documents, and circumstances that will contribute to the court’s decision.

What happens if the meaning of the words used in a Will cannot be determined by a Court?

If the meaning of the words used in a Will cannot be determined by consideration of the Will as a whole document, and with the assistance of any evidence of the surrounding circumstances, then the gift in the Will may fail due to uncertainty.

If a Will cannot be interpreted, then the rules of intestacy or partial intestacy may apply.

There is a statutory list of beneficiaries to who the assets will go if someone is deemed to have died intestate. In this instance, it will depend on who survives you as to who gets the benefit from the estate. Sometimes, that is not what the deceased wished for. For example, someone may have died having separated from their spouse, but not divorced, and their surviving spouse may be considered the beneficiary under the rules of intestacy.

What can people do to avoid these issues when executing their Will?

By having your Will drafted by an experienced estate planning lawyer, you can avoid these types of issues from arising. Most importantly, you should avoid trying to do your own Will! Although it may seem simple to document your wishes and sign the document, this is where so many people get it wrong. What you may save upfront by not engaging a lawyer to document your wishes, will only cost your estate and your loved ones in the future when they are left to battle it out in court to try to have your wishes upheld.

An estate planning lawyer understands the importance of structuring your sentences and using punctuation correctly so that the Will cannot be misconstrued to be anything other than what is stated. A simple mistake of putting a comma in the wrong place could have dire consequences and see a gift fail.

A lawyer will take comprehensive file notes throughout the matter so that if for any reason a Will-makers’s instructions, or even if their capacity, is bought into question after they pass away, those file notes can be relied on to provide evidence of the Will-makers intention.

Attwood Marshall Lawyers – experienced estate planning lawyers who will help you document your wishes properly

Wills are the major component for later life planning, in conjunction with Enduring Powers of Attorney and Advance Health Directives, which are even less commonly used than Wills, but just as important!

Most people do not hesitate to take out insurance for their home, business, or car, yet there appears to be an alarming hesitation to write a Will and Enduring Power of Attorney to protect themselves, their loved ones, and their assets if the unexpected happens.

Our experienced estate planning lawyers take great pride in building rapport with their clients so that they can gain insight into what matters most to them, and they can create a personalised plan for the future to preserve their wishes.

With one of the largest Wills and Estates Departments in Australia, we want to make it as easy and cost-effective as possible for everyone to have their most basic legal documents in order.

If you need assistance drafting a Will, Enduring Power of Attorney, or simply want to better understand what documents you should consider suiting your personal circumstances, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email or free call 1800 621 071 any time.

You can visit our experienced team at any of our conveniently located offices at Robina Town CentreCoolangattaKingscliffBrisbaneSydney or Melbourne.

Read more:

Informal Wills, Intestacy, and Estate Litigation: Why a hand-written note will not stand up in Court as your last Will & Testament

4 Corners program exposes Public Trustee horror stories: vulnerable Australians trapped, neglected, stripped of assets, charged grossly excessive fees, and silenced with their own money!


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Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

Jeff Garrett

Legal Practice Director
Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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