In July 2019, the Supreme Court handed down its decision in Jones v Robinson & Ors  NSWSC 932, a case involving the construction (or interpretation) of a homemade Will prepared in 2013. At the time of death, the testator (person who made the Will) was not married or in a de facto relationship, nor did she have any natural or adopted children. She did, however, have various nieces and nephews who survived her and were involved in the litigation regarding the handmade Will which had some ambiguity.
In its decision, the Supreme Court affirmed the principles set out by Justice Isaacs in Fell v Fell (1922) 31 CLR 268 as instructive as to the various factors to take into account when construing a Will.
Further, section 32 of the Succession Act 2006 (NSW) permits the Court to have regard to extrinsic material in construing a will, and provides that evidence (including evidence of a testator’s intention) is admissible to assist in the interpretation of the language used in a Will if the language makes the Will (or part of the Will) meaningless, ambiguous or ambiguous in light of the circumstances.
In considering various legal principles, His Honour stated at 47:
With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument.
In his judgment, His Honour favoured the Plaintiff’s construction of the Will. However, this was achieved after lengthy and most likely expensive litigation which could have been avoided if the deceased had engaged a lawyer to draft her Will in a manner what would have removed the ambiguity and minimised the risk of any legal proceedings surrounding her Will. This also would have had the added benefit of avoiding any future disputes between family members.
For more information on Wills, Will disputes or the interpretation of a Will, contact Rockliffs Lawyers.