Going away these holidays? Ensure your will is property drafted!

Monday, January 6, 2014

Prior to travelling interstate/overseas over the holiday period many people are deciding to prepare a will, as a just-in-case measure, to look after the interests of their loved ones in the event of an accident.  However, unfortunately some people are either using a do-it-yourself will kit or inadvertently engaging a lawyer who does not properly draft the document.

The Queensland Supreme Court’s decision of Woodgate v Tanks & Ors [2013] QSC 204 provides a perfect example of the importance of having your will properly documented so that there is no dispute about your wishes.

This article examines the facts of the case.

The Facts

  • The deceased made a will in 2010 leaving a specific gift “to each of” the beneficiaries “in equal shares as tenants in common”.   The question the Court had to determine was whether the clause:
    • gave separate gifts of the entire nominated sum “to each of” the beneficiaries;,or
    • a single gift of the nominated sum to be shared equally amongst the beneficiaries.
  • The applicants argued the latter, namely that the gift should be distributed as one single amount of $100,000 to be shared among the three beneficiaries in equal shares as tenants in common.
  • Further, the will left a specific gift to “The Catholic Church Murgon Parish” and “The Catholic Church Queensland Brisbane”.   However, no entities by these names exist.  Accordingly, the Court also had to decide whether the entities the deceased intended to describe could be ascertained.

The Decision

In coming to their decision, the Court considered:

  • The plain and ordinary meaning of the word “each”.   According to the Oxford English Dictionary, the word “each” can mean:
    • every (individual of a number) regarded or treated separately, or
    • distributing a plural subject or object.
  • Whether the use of a legal term “tenants in common” suggested a preference for a gift of one sum of money being split three ways.
  • Whether the use of the words “in equal shares” suggested division and so supported a particular interpretation.
  • The wording of other provisions in the will.  In particular, the Court noted, there was little consistency in the drafting of the Will.  However, the fact that other clauses made gifts to beneficiaries “absolutely” suggested that the deceased wished for the particular gift in question to be split equally among the three beneficiaries.
  • Evidence of the knowledge and circumstances of the deceased at the time the will was made (otherwise known as the “armchair rule”).
  • Extrinsic evidence (pursuant to section 33C of the Succession Act 1981).

Quinn & Scattini Lawyers has a dedicated Wills & Estates Team led by an Accredited Specialist in Succession Law, Russell Leneham.  If you or a loved one are not sure about the will which you have in place, arrange a meeting with one of our Wills & Estates lawyers so that we can examine your existing will and if required to prepare a new one.

By doing so, you will significantly reduce the chances of a successful challenge and save yourself (and your family) time, money and heartache.

If you would like to discuss any legal assistance that you might require, you can contact us on 1800 999 529.

Judgment mentioned in this post:

Title: Woodgate v Tanks & ors [2013] QSC 204
Date: 9 August 2013
Court: Supreme Court of Queensland

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