Words are important. And this is never more true than when considering the importance of words in a will. A deceased cannot explain what he meant by the words in his will when the will comes into effect. If the words in a will are unclear or ambiguous then it is left to the Court to interpret the will and determine what was meant by the words in it. There is also the uncertainty that the decision of the Court may not coincide with the deceased’s intentions.

To determine what were a testator’s intentions, the starting point is the actual words in the Will. Where there is ambiguity of language then evidence of the surrounding circumstances may be taken into account under what is known as the “armchair principle.” The armchair principle, as the name

implies, allows the Court to put itself in the position of the deceased and “take into account his or her family, property, friends and acquaintances in order to determine what was meant by the words in the will.”1

The Victorian case of The Matter of the Estate of Daryl Thomas Hely2 provides a good example of the importance of words in a will to carry out the intentions of a testator, particularly, a complex will.

In the Hely case, the testator had seven children and died leaving an estate worth about $25 million. At the date of his death, the deceased owned 14 properties. Two years before his death, the testator had engaged a firm of solicitors to prepare his will. A draft will creating several testamentary trusts for the benefit of his children was sent to the testator for review and further instructions. The draft will prepared by the solicitors was never finalised.

Sometime later, the testator decided he wanted to simplify things and made his own will by using parts of the draft will prepared by the solicitors. He wanted his children’s entitlements under this will to be equal and his estate to pay any capital gains tax. The testator appeared not to understand the complexity of the draft will nor the essential elements of a trust.

Unfortunately, his intention to simplify things did not go to plan. After his death, an application to rectify his will was made to the Court. The Court found several deficiencies in his will, most notably the failure to nominate a beneficiary for each of the seven testamentary trusts. Orders to rectify the relevant clauses of the will were made with the estate paying the legal costs for the rectification application.

Two lessons may be taken from the Hely case. Firstly, modern legal drafting practice advocates the use of plain English. However, caution needs to be exercised when using plain English in legal documents because certain words or phrases have particular legal meanings which must be adhered to. The appeal of simplicity should not be seen as a substitute for expertise in legal drafting.

Secondly, the temptation to save money by drafting one’s own will can be misguided and costly.  A

“homemade” will is more likely to be challenged or the subject of an application for rectification. The legal costs to apply to the Court for rectification orders will usually be borne by the estate and

In the Will of Thomas Henry Finch (dec’d) [2018] QSC 16 [36]2 [2018]VSC 614

far exceed what would have been the cost to engage a legal practitioner to prepare a will in the first place.

Contact us at Middleton Gardiner & Associates on telephone 02 8005 4057 or by email [email protected] if you require advice or assistance on estate planning or making a will.

This article contains general information which may not correct, complete or current at the time of reading. It is not intended that this article is to be used or relied upon as specific legal advice. A reader should seek legal advice from a legal practitioner in relation to any particular or proposed transactions. Middleton Gardiner & Associates expressly disclaim all liability relating to any actions taken or alleged to be taken based on the content of this article.

© July 2023