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Extrinsic Evidence In Contested Will Cases (NSW)

A testator should draft their will to be simple and easy to understand, but this can be much harder than it seems. It is quite common for a person to think they have been clear in their instructions when in fact, the language in the will is ambiguous and open to interpretation. In that case, the Supreme Court of New South Wales may use extrinsic evidence to decipher the meaning of the words contained in the will. This means that facts and information that were not included in the will may inform the court’s understanding of the testator’s intent. This article explores the use of extrinsic evidence in contested will cases with reference to a 2019 case before the Supreme Court, Estate of Aspasia Kandros.

Admissibility Of Extrinsic Evidence In Contested Will Cases

In contested will cases, the Supreme Court interprets the words of a will according to their common meaning. One of the most commonly used tools to determine the common meaning of a word is for the court to look up the dictionary definition of a word. However, on occasion that common meaning of a word will result in a meaningless or ambiguous outcome. In such cases, the Succession Act 2006 empowers the court to refer to extrinsic evidence. Importantly, the focus is on using this evidence to interpret the meaning of the words in the will, not to interpret the testator’s intent at the time.

The court has a “golden rule” to try and lean away from any interpretation of the will that results in intestacy. They will sometimes use an “armchair principle”, that is, they will consciously consider the testator’s point of view in order to clarify ambiguity. In this way, the court may use extrinsic evidence to decipher wording that is only understandable when considered in light of family “shorthand”. For instance, a testator may leave a bequest of a piece of land, and refer to it using a name that is meaningless upon an independent reading, but clear to other family members.

Identify Beneficiaries

Even a minor oversight can lead to ambiguity over the identity of a beneficiary. Latent ambiguity occurs when an error in a bequest is not immediately evident on first reading of the will but becomes obvious when it is impossible to carry out. For example, a testator might bequeath property to “my cousin John”, but a problem arises when the executor goes to administer the will because the testator has several cousins named John. In that case, the court will use extrinsic evidence to try and clear up the confusion.

The court will act to protect a gift from lapsing when a bequest is partially inaccurate and extrinsic evidence affirms the accurate parts of the description. In that way, a bequest that misspells a surname will not prevent the transfer of the gift as long as the identity of the beneficiary is clear from the context and extrinsic evidence that surrounds the will.

Identify Assets

Another common mistake in a will is an inaccurately described asset or property. This can cause significant problems for the executor when it comes to administrating the deceased estate, and may even result in litigation to clarify the meaning of the bequest. The case study below illustrates the dangers of misidentifying property in a will.

Case Study

The Estate of Aspasia Kandros [2019] considered the admissibility of extrinsic evidence to clarify and identify a bequest. In this case, the testator bequeathed a property but gave an incorrect address, specifying the gift of property at street number 5, when the property was in fact unit 5. The court was convinced that the testator had executed the will unaware that there was a misdescription of property, not least because she did not speak or read English. The court found that the gift should not lapse because of an imperfect description of the asset because the deceased’s intention could be determined using extrinsic evidence.

The court was convinced that the deceased intended to make bequests through the different clauses of her will to the named beneficiaries. The court accepted the daughter’s extrinsic evidence to clarify the meaning of the bequests, including her assertion that there were physical features that allow for an obvious method of differentiation of the property. In consideration of both the language of the will and the aid of admissible extrinsic evidence, the court construed the true intentions of the testator in these clauses.

As this case demonstrates, a testator must be extremely careful when drafting their will to avoid ambiguity. When there is confusion over bequests in a will, there are ways to clarify a testator’s true meaning. Contact our experienced solicitors if you have any questions about the use of extrinsic evidence in contested will cases in NSW. Our contested wills team is waiting for your call so please telephone 1300 038 223 to discuss any of your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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