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Will is Unclear or Hard to Understand (Qld)

It is common for a person to pass away believing that they have left clear instructions for the administration of their estate but for their family to find that their will is unclear or hard to understand. The Succession Act 1981 contains provisions setting out how wills are to be interpreted in the case of ambiguity or meaninglessness. This article deals with wills that are unclear or hard to understand in Queensland.

Ways in which wills may be hard to understand

A will may be unclear or hard to understand because it has been poorly drafted. This is particularly likely to occur in the case of homemade wills. Alternately, a will may be unclear because circumstances changed between the time the will was made and the death of the testator. The assets owned at the time of death may be different from those referred to in the will. The testator may also have married or divorced or had children after making the will.

Interpreting wills that are unclear or hard to understand

Section 33 of the Succession Act provides that evidence can be used to interpret a will that is unclear or hard to understand. This includes evidence of the testator’s intention. Evidence may be used where the language used in the will is:

  • Meaningless;
  • Ambiguous in the face of the will; or
  • Ambiguous in the face of the surrounding circumstances.

If provisions in a will do not match what the testator intended, the court can rectify the will so that it has the effect that was intended. An application to rectify a will must generally be made within six months of the testator’s death; however, the court may extend this time limit where it considers it appropriate if no final distribution of the estate has been made.

Interpretation of wills where particular provisions are ineffective

The Act also contains a number of provisions that clarify how a will is to be interpreted if it contains particular defects. For example, the act provides that unless the contrary intention appears:

  • If a disposition of real property in a will is ineffective, the property will be treated as part of the residuary estate (section 33G);
  • If a testator leaves property to their child and the child does not survive them by 30 days, the property passes to the child’s child or children (section 33N);
  • If a disposition of a fractional part of an estate fails, the part that fails passes to the part that does not fail (section 33P);
  • If a will requires a valuation of property to be made but does not specify a method of valuation, the reference to the valuation must be taken to mean a valuation at the date of the testator’s death by a competent valuer.

The armchair rule

One of the rules of construction followed when interpreting a will is known as the armchair rule. Under this rule, the court must put itself in the position of the testator and consider the words used in the will in light of all the facts and circumstances known to the testator at the time of making the will. The court is to read the words in the sense that the testator appears to have given to them, except where the law requires the words to be given a fixed meaning.

Case law on wills that are unclear or difficult to understand

The 1922 High Court decision of Fell v Fell set out certain incontestable principles for the construction of wills. In summary, these were that wills must be constructed according to the plain meaning of the words but with reference to the instrument as a whole 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 will is unclear or difficult to understand, it is advisable to seek legal advice about your options as soon as possible. Whether you are named as an executor, a beneficiary or a person who would be entitled to inherit from the estate under the laws of intestacy, our contested estates lawyers can provide you with comprehensive advice at an early opportunity.

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

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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