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The Use of Extrinsic Evidence In Contested Will Cases (Qld)

A will should be drafted to be clear and easy to comprehend. Unfortunately, it is not uncommon for a will in Queensland to be written in a way that is ambiguous and open to interpretation. In that event, the Supreme Court of Queensland will sometimes allow for the admittance of extrinsic evidence to clarify the testator’s meaning. Extrinsic evidence in contested will cases is information or facts that are not contained in the will, but that can be used to clarify the words contained within the document. This article explains the nature and purpose of extrinsic evidence and the use of such evidence in contested will cases in Queensland.

When Is Extrinsic Evidence Admissible In Contested Will Cases?

The Supreme Court interprets a testator’s words in a will in context according to their common meaning. In the event that the words are unclear and cannot be deciphered through applying the usual meaning rule, the court may refer to extrinsic evidence to resolve the meaning of the words.

Under the Succession Act 1981, the court can use extrinsic evidence to construe the true meaning of a testator’s words if the language makes any or all of the will:

  • meaningless;
  • ambiguous on the face of the will; or
  • ambiguous given the particular circumstances.

The court can hear extrinsic evidence on the factual circumstances of the testator when they executed the will. This can be used to inform the meaning of the words of the will, but not to decipher the testator’s intention when he or she made the will.

The court will use the “armchair principle” to see from the testator’s perspective in order to clear up ambiguity. For example, the court may consider extrinsic evidence if the wording of the will does not make sense on a common meaning reading but may be deciphered in light of the unique speech habits of the testator and family. The “golden rule” is that the court will lean away from an interpretation of the will that leads to an intestate or partially intestate estate.

Clarify Identity of Beneficiaries

The identity of a beneficiary in a will is sometimes unclear because of minor oversights. Latent ambiguity occurs when an error is not evident on reading the will but becomes apparent when the executor attempts to fulfil the clause. For instance, a testator might leave her personal jewellery to her niece, but she actually has several nieces. The court will allow extrinsic evidence to inform when the description of a beneficiary in the will matches the description of several different people. Also, when the description of a beneficiary is not totally accurate and there is supporting evidence to confirm the true parts of the description, the court will not allow the inaccuracy to invalidate the gift. As such, the court may use extrinsic evidence if a testator leaves an estate to his or her relative, but misspells or otherwise mistakes their name. In that event, the court is likely to allow the bequest to stand if it is clear from the context that the clause was intended to benefit a particular individual.

Identify Property

When a testator describes the assets of their estate in their will, there is sometimes ambiguity as to the particular asset in question. The court will try to save a bequest even if the asset is misdescribed in the will. For instance, if a testator leaves a bequest of the contents of a safety deposit box at Queens Street and the only safety deposit box in the deceased estate is located at Adelaide Street, then the court is likely to save the bequest through reference to extrinsic evidence.

Case Study

The case of Hicks v Mater Misericordiae Ltd [2017] examined the admissibility of extrinsic evidence to aid in the construction of a testator’s will. The deceased died in 2013 with a residual deceased estate valued at $1.04 million. In her will, she left the residue of her estate to the “Medical Superintendent for the time being of the Mater Children’s Hospital in Brisbane for the purchase of medical equipment for the treatment of seriously ill children”. Unfortunately, when she signed the will in 2010, there was no official position of Medical Superintendent of the Mater Children’s Hospital and the Hospital no longer existed when the case was contested in court.

The “Mater Children’s Hospital” was actually officially registered as the Mater Misericordiae Children’s Hospital, operated by Mater Misericordiae Limited (the first respondent). When they ceased operating the hospital, the Lady Cilento Children’s Hospital (second respondent) took over functions in the area, run by Children’s Health Queensland Hospital and Health Service. The first respondent is a public company that continues to operate charitable services that provide seriously ill children with medical services, but it no longer operates solely as a children’s hospital. The Lady Cilento Children’s Hospital is a public hospital that now provides the same services as the Mater Children’s Hospital offered in the same area.

The case rested on the question of who should benefit as it was impossible to deliver the gift to the stated recipient. The court found that extrinsic evidence was relevant to the question of the testator’s intention for the bequest. The evidence was admissible because the words referring to the “Medical Superintendent for the time being of the Mater Children’s Hospital” are meaningless and ambiguous as there is no such position.

The executor testified that the testator wanted the residue of her estate to go to a public hospital and that it was the solicitor drafting the will who suggested the Mater Children’s Hospital. This informed the court that the bequest was intended to help a public hospital purchase medical equipment to treat seriously ill children. The extrinsic evidence showed that the testator had no existing relationship with Mater Misericordiae Limited. The evidence rebutted the assumption that the wording of the bequest was a misdescribed reference to Mater Misericordiae Limited.

The court found that although the Mater Misericordiae Limited corporation continued to provide hospital services to children, their stated purpose of operation was not as closely aligned with the operation of the Mater Children’s Hospital as the Lady Cilento Children’s Hospital. Importantly as far as the testator’s intentions, the Lady Cilento is a public hospital and falls within the spirit of the trust. The court made an order to transfer the bequest to the Lady Cilento Children’s Hospital.

The contested wills team at Armstrong Legal can advise you on the use of extrinsic evidence in a contested will case and help you reach a successful outcome for your legal action. Please contact or call our team on 1300 038 223 to discuss making a claim using extrinsic evidence.

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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