Court interpretation of Will regarding use of deceased’s property


Posted By on 28/03/22 at 2:40 PM

When a Will is unclear, it falls to the Supreme Court (referred to as the Court of Construction) to determine how the Will ought to be construed after a grant of probate has been made.

The recent decision of the Supreme Court of Victoria in Re Prior; Niran v Prior [2022] VSC 31 concerned interpretation of a deceased’s intentions regarding use by the deceased’s executors of certain property after his death.


The deceased left his last Will dated 9 April 2019 and died approximately 6 weeks later.  Clause 3(1)(b) of the Will provided that the testator gave his:

… fee simple interest in the land at 160-180 Tarrango Road, Yarra Junction in the State of Victoria to Tahl [the stepson], but not the contents of three shipping containers located on the land, on the condition that Tahl grants a licence for my Executor(s) to use the property at 129 Waverley Road, Malvern East in the State of Victoria rent free for a period of two years from the date of my death with all rates, insurance premiums, maintenance costs and other outgoings paid from my Residuary Estate (emphasis added).

The applicant was the stepson of deceased, who sought directions from Court as to how the Will should be construed. The executor defendants, who were the deceased’s brothers, contended that the stepson had not complied with the condition in the Will as he had been living in the property and accordingly had forfeited his half-interest in the property. The argument was that the licence was for exclusive use of the property by the executors.

It was accepted that the Will was poorly drawn and did not prescribe what the licence was for.

Her Honour set out the principles of construction at [31]-[36].

Meaning of “use”

The issue concerned the meaning of the word ‘use’ in the Will. The legal meaning being the ‘right to benefit from’ or ‘to employ or utilise’ or with particular reference to land ‘possession and use of land to derive income or other benefits’. The plain meaning is much wider.

The Court held that the licence was not intended to be exclusive and consequently the stepson was entitled to reside at the property consistently with licence, without breaching the condition and forfeiting his interest. The deceased had contemplated that as a result of his voluminous chattels, that a period of two years was required for the executors to properly administer his estate (the deceased being an artist) i.e. to archive, catalogue, promote, and sell the works. In addition, at the time of making the Will, the stepson was living in the property. These were the surrounding circumstances considered to be consistent with the intention that the licence in the condition be for this purpose, and the word ‘use’ was not exclusive possession.

Key takeout

It is critically important to ensure your Will is accurately drafted to reflect your intentions after your death. Our highly skilled Wills & Estates team can assist with the preparation of a clearly articulated Will, to ameliorate the risk of Court interpretation being required. Alternatively, if you need assistance construing the meaning of a clause in a Will, please do not hesitate to contact us.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Principal Solicitor

Rachael is a highly experienced Wills & Estates lawyer. She is an Accredited Specialist in Wills & Estates with the Law Institute of Victoria, and is also a full member of the Society of Trust... Read More