What happens if a Will is unclear or uncertain?


Posted By and on 24/11/21 at 1:33 PM

Sometimes, even a well drafted Will can raise questions when it comes to administering the estate in terms of how a particular clause of the Will should be applied. It may be that the intentions of the person whose Will it is, cannot be properly ascertained from the words that have been used. Perhaps it is unclear precisely who the beneficiaries are or who is included as a beneficiary if a generic term has been used to describe them.

If this issue arises, it is for the Supreme Court, which is referred to as the Court of Construction, to determine how the Will ought to be construed after a grant of probate has been made.

This was the case in a recent decision of the Supreme Court of Victoria:

Brown v Hunt [2021] VSC 683

The Will of the deceased appointed her only biological grandson as the executor and residuary beneficiary of her estate. The grandson renounced and his mother, the deceased’s daughter-in-law, was granted probate as the substitute executor.

Clause 9 of the Will stated:

I give the sum of one million dollars ($1,000,000) to such biological child or children of my said grandson Matthew Alex Hunt (being my great-grandchild or great-grandchildren) as survive me and if more than one in equal shares upon attaining the age of thirty (30) years.

This appears to be a very standard and non-controversial clause.

The grandson had two children aged 8 and nearly 1 at the time of the proceeding, the younger having been born after the deceased’s death. At the time of making the Will the grandson only had the one child and told the deceased he did not intend to have more children. However, he later partnered and had his second child.

The question requiring determination by the Court was when the class of beneficiaries, being the great-grandchildren, would close i.e. when could the executor consider that there would be no more beneficiaries falling within that description (as, strictly speaking, the grandson could go on to have more children).

On an application by the executor, the Court was asked to answer the following questions in relation to the construction of the Will:

  1. On its proper construction should cl 9 be construed to only apply to great-grandchildren alive as at the date of the deceased’s death?

Answer – no.

  1. If no to question 1, on its proper construction should cl 9 be construed to apply to all great-grandchildren of the deceased born before the first great-grandchild reaches the age of 30 years so that the class of beneficiary closes when the first great-grandchild reaches 30 and all great-grandchildren who are at that time members of that class only receive a share if and when each one turns 30?

Answer – clause 9 applies to all great-grandchildren of the deceased born before the eldest great-grandchild reaches the age of 30 years.

  1. If no to questions 1 and 2, on its proper construction should cl 9 be construed to apply to all children of the great-grandchildren of the deceased born at any time during the defendant’s lifetime?

Answer – not applicable.

  1. If yes to question 3, how is the trustee of the trust provided for in cl 9 obliged to administer the trust given that it is possible that the defendant may father children after his first child turns 30?

Answer – not applicable.

  1. Can the trustee of the trust apply the capital and/or income of the trust to the education and maintenance of any great-grandchild before the great-grandchild turns 30?

Answer – yes.

The evidence of the parties was uncontested and the parties agreed that clause 9 included great-grandchildren who were not yet born at the date of the deceased’s death. However, the parties acknowledged that it required judicial determination.

The evidence from the solicitor who drew the Will was that the deceased anticipated that her grandson may have another child and wanted the class of beneficiaries to close when the first great-grandchild reached the age of 30.

Adopting the general principles of construction, the Court analysed the term “survive me” and referred to the decision in Re Lapalme; Daley v Leeton (2019) 60 VR 71 where the word “survive” was held to attract its natural meaning in some circumstances (to outlive the testator by those who were alive at the deceased’s death) and secondary meaning in others (to live after the testator so as to capture beneficiaries born after the testator’s death). If the secondary meaning is to be enlivened the person for whose benefit it is asserted bears the burden of proving that the testator intended to depart from the natural meaning.

As the deceased only had one great-grandchild at the time of making her Will, the use of the words “in equal shares”, being plural, was critical to indicate an intention to extend the class to include those of her great-grandchildren that were not yet born at the time of making her Will. But the question still remained as to whether it extended to only those born after the Will before but before her death (natural meaning) or also those born after her death (secondary meaning). The Court found that the fact the potential beneficiaries must satisfy the definition of ‘biological great-grandchildren’ and attain the age of 30, when considered in light of the surrounding circumstances, was itself suggestive that the deceased intended the secondary meaning of ‘survive’.

The Court referred to the strict requirements as to what evidence can be admitted in these types of claims and was not satisfied that evidence of deceased’s intention could be admitted in this case. The Court did have regard to the surrounding circumstances including the age of the grandson, the real possibility of him having more children, the number of children he had, his stage of life and the fact that the deceased told her solicitor that she anticipated the grandson having another child in the near future.

Accordingly, the Court was satisfied that the deceased did not intend “survive me” to be afforded its natural meaning and all biological great-grandchildren of the deceased, including the one born after he death, was entitled to take pursuant to clause 9.

The class was held to close when the eldest of the great-grandchildren turned 30.

If you happen to come across a situation where the wording of a Will is unclear or uncertain, please do not hesitate to contact us so we can assist with its construction.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Special Counsel

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

Ines Kallweit Principal Solicitor & Notary Public

Ines Kallweit leads our Wills & Estates team.  She is an Accredited Specialist in Wills & Estates (with the Law Institute of Victoria), a member of the Society of Trust and Estates Practitioners,... Read More