Wills and Estates

In some cases, it is relatively easy to resolve the ambiguity, for example where a gift in a will fails because the subject matter of the will has been sold before the will maker died. There are however other circumstances where gifts are ambiguous, and where the consequences can be quite significant. Under section 33C of the Succession Act 1981 (Qld), a court can have regard to evidence including that of the will maker’s intention, to help interpret language used in a will if the language (or part of it) is meaningless or ambiguous on the face of the will or in light of the surrounding circumstances. That can allow the court to adopt the “armchair principle” whereby the court sits in the position of the will maker to take into account their “habits of speech and family, property, friends and acquaintances” to determine the meaning of the gift. Evidence of the will maker’s intention however is not admissible, so the evidence of the instructions given to the solicitor who drafted the will cannot be used to interpret the will, which is somewhat of an odd outcome. These issues were considered in the recent Supreme Court decision of Dalziel v Gott & Ors [2024] QSC 276. The background to that matter is that Mr Gott made a will in 2012 in which the following gift was included: “I give and devise all my right, title and interest in and to house property “Florida”, 487 Main Western Road, Mt Tamborine (“my residence”) PROVIDED HOWEVER that should my residence have been sold during my lifetime then in lieu thereof…” As it happened, Mr Gott owned adjoining lots, Lot 5 on which a house and garage were built, and Lot 6 on which gardens were built. The question was whether the reference to “house property “Florida” was a reference to both Lots 5 and 6, or whether it was a reference to only Lot 5 upon which the residence was constructed. If it referred to both lots, then obviously the gift of the residence was more valuable to the beneficiary of that gift, and there would be a corresponding reduction in the value of the remainder of the estate. The court considered that there was ambiguity in the words used in light of the surrounding circumstances, and found that the will maker was referring to both Lots 5 and 6 in light of the surrounding circumstances, namely: The connection between the improvements on Lots 5 and 6 and the will maker’s treatment of them as being part of his home called “Florida”; and In a prior will, the will maker had specifically identified both Lots 5 and 6 and referred to them as being at the address nominated in the will. Of course, the decision demonstrates yet again the care that must be exercised by will makers to ensure that their wills are clear on their face. It also demonstrates why it is necessary to take complete instructions relating to all potential estate assets so as to resolve any conflict on the face of the will. For estate planning and advice concerning wills including disputes, please contact our lawyers Peter Muller at peterm@qbmlaw.com.au, Jessica Murray at jessicam@qbmlaw.com or Megan Sarroff at megans@qbmlaw.com.au

I was recently asked by a client if it was OK to use the “home made” wills from newsagents, and that prompted me to think of the numerous times that I have read cases where people made a will without a lawyer, and there was costly litigation as a result. We have reported on those cases on several occasions over the past few years, and it does made for good reading, the links are below. https://qbmlawyers.demo2.website/yet-another-will-kit-disaster https://qbmlawyers.demo2.website/yet-another-home-made-will-disaster-2 https://qbmlawyers.demo2.website/will-kit-disaster-again https://qbmlawyers.demo2.website/yet-another-home-made-will-disaster https://qbmlawyers.demo2.website/do-you-need-a-lawyer-to-prepare-your-will https://qbmlawyers.demo2.website/is-your-will-valid Another decision which is worth reading is that of In the Will of Fernando Masci https://archive.sclqld.org.au/qjudgment/2014/QSC14-281.pdf which is worth reading as it demonstrates how a badly drawn will can devastate an estate – in that matter the dispute continued for well over 2 years after the will maker died, resulting in 3 days of hearing in the Supreme Court before the judgment was delivered. For advice on estate planning and Wills, please contact Peter Muller at peterm@qbmlaw.com.au, or Jessica Murray at jessicam@qbmlaw.com.au

It seems that a lot of lawyers could make a decent living if their only work was sorting out home-made will problems. Yet another one has played out in the Supreme Court. The Will maker was 13 years into a de facto relationship who he married shortly after making the Will. He had little contact with the children from an earlier relationship. His Will named his de facto as executor. In the section dealing with the giving of the residue of his estate, after the words “I direct my Executor(s) to pay all my debts and then give the residue of my estate to” he wrote “SAME”. The contest was between his de facto who contended that this meant that he intended his estate to go to her, and some of the children from his earlier relationship who contended that this was not sufficiently certain and that the estate should be distributed as though he was intestate (as a result of which his children would share in it and the amount going to the de facto would be reduced). The de facto wife failed and the estate is to be dealt with as though he was intestate. Significant legal costs were incurred and would reduce the available estate. The will-maker clearly intended to give away his property in a particular way, but because of the inadequacy of the document the Court was not convinced that giving it to his de facto was what was intended. This outcome could have been avoided had a properly drawn Will been made. You dont need to take our word for it, here is the decision https://www.sclqld.org.au/caselaw/QSC/2022/236 For advice on estate planning, wills, and will disputes, please contact Jessica Murray jessicam@qbmlaw.com.au or Peter Muller peterm@qbmlaw.com.au