A will, like any other document, can be unclear. This is particularly the case with wills that were made without the assistance of a lawyer. In these cases, a court may be required to construct the will maker’s intended meaning in order to give effect to the will. To do so, it must have regard to will construction principles as well as to the ordinary meanings of the words used. This article deals with will construction principles.

Why is will construction necessary?

English words can have multiple meanings. In everyday communication, we give implications to and take inferences from the words we speak, read and write. It is common for words to have more than one possible meaning. This is particularly true of written words because the reader does not have the benefit of spoken inflections or non-verbal cues to aid interpretation.

Common Uncertainties in Wills

Common situations that result in wills requiring construction are as follows.

• When the will-maker knew more than one person by the same name;
• Where a name is misspelled, or an old name is used to refer to a person whose name has changed;
• Where an organisation such as charity is not referred to by its legal name, or its name has changed;
• Where this is doubt as to whether certain valuables like motor vehicles, jewellery, artworks or antiques are included in terms like “personal effects” or “household chattels”;
• Where a term such as “my property” is used, as this could refer to real property, personal property or chattels depending on the situation;
• Where it is unclear which real estate property is meant by a term like “my home”.

The 10 Principles of Will Construction in Fell v Fell

In the 1922 High Court decision of Fell v Fell, the court listed 10 principles for the interpretation of wills. These are as follows:

• The meaning of the will must be discovered from the wording of the will itself. Extrinsic material –  evidence from outside the will – may only be referred to if necessary to aid in the interpretation of words present in the will. In other words, the court may only refer to outside material, like verbal statements about intended distributions, to help resolve unclear wording in the will and not to add anything new to the will
• The words must be construed according to their ordinary meaning. Where there is any inconsistency, the words must be interpreted with reference to the will taken as a whole.
• The court may find that a gift is made even where there are no express words of gifting if the will shows that the gift must have been necessary to give effect to the words in the will
• The court may not draw an inference unless there is a clear intention in the words of the will, taken as a whole;
• The court is not permitted to give effect to an intention that is not clear from the wording of the will. Only a “necessary implication” may be made, meaning that the wording of the will does not make sense unless that implication is made;
• If it is clear from the will that words have been unintentionally included or omitted, the court may remove or insert those words to give effect to the clear intention of the will as a whole;
• Words necessarily implied by the words of the will may be inserted to give effect to a will that would otherwise be ineffective and result in an intestacy;
• Where there are multiple possible interpretations of some words, the court will generally prefer the interpretation that preserves rather than destroys;
• If it is clear from the wording of the will that a mistake must have occurred, the fact of that mistake is intrinsic to the will and is relevant for its interpretation
• Intestacy is considered a last resort, so it is presumed that a person making a will does not intend to be left intestate.

It is often a difficult task to work out the meaning of wording in a will, even when guided by these principles. The principles at times seem contradictory and often there is substantial room for argument one way or another. For example, there can be significant disputes about what implications are “necessary” or about whether extrinsic material is required to interpret ambiguous words, and if, so which materials are allowed.

Unfortunately, only the court is able to make a determination about the meaning of a will. It is not always possible for the affected parties to come to an agreement. Further, an executor potentially exposes themselves to the risk of litigation for negligence from a beneficiary that was left out because the executor did not seek a determination from the court.

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