Will Drafting - Not a Job for the Lay Person

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While many people consider that they can draft their own Will and that it is an unnecessary expenditure to engage a solicitor to do it for them, this may be a foolhardy course of action.

There is a need for a great deal of precision in the drafting of a Will. If that precision is not obtained, uncertainty is created which may lead to unnecessary litigation and substantial legal costs being incurred. Examples of this very circumstance arising has occurred in the following cases:

In the Estate of Rea Costello (Deceased)

Mary McCartney Martin Costello, known as Rea Costello, died on 25 February 2013. In her Will, dated 24 October 2012, Ms Costello had appointed “my solicitor JO-ANNE NOREEN MILEN…or any solicitor in her employ to act as my executor and trustee”. This clause was found to be unenforceable or of no effect due to uncertainty, as it did not indicate an order of preference or hierarchy between Ms Milen or the “solicitor in her employ”.

The Court held that appointing Executors in the alternative without additional words indicating the circumstances in which they are to be appointed is unenforceable or of no effect due to uncertainty. The Court was then required to rectify the Will, meaning that an Order was made appointing Ms Milen as the executor of Ms Costello’s estate on the basis that the evidence established a clear intention on the part of Ms Costello to appoint Ms Milen as her sole executor.

In the course of his Judgment, the Judge provided the following case examples of other clauses appointing executors which were found to have been unenforceable or of no effect due to uncertainty:

  • “Any two of my sons”;
  • “One of my sisters”;
  • The partners of a law firm “or the firm which [at the date of the testator’s death] has succeeded to and carried on its practice”; and
  • A partner of a law firm “or a partner of the firm with which [that partner] practices”.

Hope v Schneider

Marie Josephine Schneider died on 6 July 2014, leaving a Will dated 5 August 1999. There were two contradictory clauses in that Will;

  1. In one clause, she left specific pecuniary bequests to her grandchildren and step-grandchildren and then left the residue to those of her children and stepchildren who were living at the time of her death.
  2. In a later clause, she left the whole of her estate to her children in equal shares and if any one of her children or stepchildren predeceased her then their interest would pass to their issue.

The Court construed Mrs Schneider’s Will as if the second clause contained no reference to leaving the whole of her estate to her children (i.e. the part which directly resulted in the ambiguity was ignored). In other words, the Court’s view was that Mrs Schneider intended that her children and stepchildren would inherit the residue of her estate unless they predeceased her, in which case her grandchildren and/or step-grandchildren would take their deceased parent’s share.

Conclusion

The two cases discussed above involve different applications to the Court. The first was for rectification of the Will and the second was for interpretation/construction of the Will. Both were necessary as a result of drafting errors, highlighting the importance of having a carefully and expertly drafted Will. If you do not have a Will or if your Will needs to be updated, please contact us to make an appointment for the preparation of a new Will.

For more information

In the Estate of Rea Costello (Deceased) [2014] SASC 134

Hope v Schneider [2016] QSC 44

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