Wills and Intestacy - Constitution (8) Flashcards
What may a court do if a will is unclear?
Construction and Rectification: Where wills are unclear, the court may attempt various methods to construe their true meaning, and in very rare instances will even rectify errors (AJA 1982).
What presumptions does the court apply to construe the true meaning of a will?
Presumptions: Courts will first apply a number of presumptions to construe the true meaning of a will.
(1) Non-Technical Words: Non-technical words bear their ordinary meaning.
>Money can refer to notes, coins, all assets etc. It is read in the context of the whole will.
(2) Technical Words: Technical words bear their technical meaning.
>Personal estate refers to personalty, even if the drafter may have meant all assets (Re Cook).
Rebutting Presumptions
Rebutting Presumptions: Presumptions may be rebutted with clear intention to the contrary.
What extrinsic aids may be applied to interpret a will?
Extrinsic Aids: Courts will rarely apply extrinsic aids to interpret part of a will which is either: a) ambiguous on its face; or b) ambiguous due to surrounding circumstances (s21).
(1) Ambiguous On Face: Will is made out to ‘Sunshine’.
>Ambiguous on face.
>Extrinsic evidence shows that this was the testator’s husband’s nickname.
(2) Ambiguous In Surrounding Circumstances: Will leaves all to ‘Mother’.
>Clear on face, but ambiguous as mother predeceased the creation of the will.
>Extrinsic evidence shows that this was the testator’s wife’s nickname (Thorn v Dickens).
>However, if the mother had been alive, the court would not have used the extrinsic aid.
When will courts rectify a will?
Rectification: Courts have limited power to rectify a will if it is ineffective despite clear intention, due to an error (s20).
(1) Error: The error must be either: a) clerical; or b) a failure to understand instructions.
Clerical: A word was written or omitted by mistake by clerical oversight.
>Solicitor wrote ‘my one half share’ rather than ‘one half of my share’ by mistake (Joshi v Mihada).
Failure to Understand: Drafter misunderstood the testator’s instructions.
>Testator intended to give farmhouse to wife, solicitor thought he meant entire farm, but intentions were clear from a draft will that he did not, so it was rectified (Sprackling v Sprackling).
(2) Misunderstanding Law: A mistake made because of a misunderstanding of the law is not rectifiable, if the words were used in order to reflect properly understood instructions (even though they failed to take effect).
>I.e. Solicitor thought ‘my personal estate’ meant all assets, even though it excludes realty.
>However, this may give rise to proceedings in negligence against the solicitor.
