Will is Unclear or Hard to Understand (NSW)

It is common for someone to think they have left clear instructions about how their estate is to be dealt with, only for their family to find that their will is unclear or hard to understand. In cases like these, the will must be interpreted in relation to what is known about the testator’s intentions. This article deals with interpreting wills that are unclear or difficult to understand in New South Wales.

Legislation

The Succession Act 2006 sets out how wills are to be interpreted in cases of ambiguity or meaninglessness in New South Wales.

Different ways a will can be unclear or hard to understand

A will may be unclear or hard to understand because it has been badly drafted. This is particularly likely to happen when a will is homemade or made without legal advice.

Alternately, a will may be difficult to interpret because the testator’s circumstances changed between the time that they made the will and their death. Changes of circumstances may include marrying or divorcing, having children or owning different assets to those that were owned at the time the will was made. These changes can make it unclear which persons and which property are being referred to.

Interpreting wills that are unclear or hard to understand

Section 32 of the Succession Act provides that extrinsic evidence can be used to interpret a will where there is language used in the will that is meaningless or ambiguous in light of the surrounding circumstances. The evidence that can be adduced for this purpose includes evidence of the testator’s intentions.

The Armchair Rule

One of the rules of instruction that applies when a court is interpreting a will is the armchair rule. This rule requires the court to put itself in the position of the will-maker and consider the words used in the will in light of the surrounding facts and circumstances known to them at the time they made the will. The court must read the words in the sense that the testator appears to have given to them, except where legislation requires specific words to be interpreted in a specific way.

Case Law On Wills That Are Unclear Or Difficult To Understand

The 1922 Australian High Court decision of Fell v Fell set out certain incontestable principles for the construction of wills. These can be summarised as being that wills must be constructed according to the plain meaning of the words used in them but with reference to the instrument as a whole in order to give effect to the intentions of the testator.

More recent court decisions have reframed these principles in various ways. In the 2009 NSW Supreme Court decision of Muir v Winn, Bryson AJ stated:

“Will construction is not an exercise in which any passage in a will can be isolated from the whole document.’ His Honour went on to observe ‘It is not in my understanding a correct approach to the construction of wills to understand what they say only in entirely literal terms. . . The Court seeks to ascertain the intention of the testator as expressed in the language used, while understanding that the language used might not express that intention perfectly.”

Seek legal advice if a will is unclear or hard to understand

If you are involved in a matter where a person had died leaving a will that is unclear or hard to understand, seek legal advice as soon as possible. Whether you are a beneficiary in the matter, are named as an executor in the will, or have some other interest in the estate, our lawyers can provide you with comprehensive advice at an early opportunity so that you can make the best decision in the circumstances.

If you are considering making a will, seek legal advice to ensure you execute your will in a manner that ensures its provisions are not unclear or hard to understand. Doing this ensures the process of administering your estate is as simple as possible and avoid unnecessary stress and expenses for your loved ones.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal