• Ellison Moschella & Co

Interpretation of Wills

Disputes can arise in relation to the interpretation of a Will. As a result, general rules of thumb have developed from case law over time.

Rules of Interpretation

Some examples of the general rules of interpretation include the following:

  • words are to be given their ordinary meaning unless it is clear that some other meaning was intended;

  • if at all possible, the meaning of the will should be determined by only considering the words used in the Will itself;

  • the meaning of the Will must be determined by considering the document as a whole;

  • punctuation is relevant;

  • where there is more than one possible interpretation, the courts tend to use the interpretation which preserves the general effect of the document. This is particularly so where there is a charitable intention.

There are also specific rules of interpretation which can be found in legislation as well as case law which have already decided the meaning of particular words and phrases. (e.g. the gift of “contents” of a will-maker’s home usually refers to those items for the better use of the home. Summers v Garland decided “contents” did not include diaries as the diaries were personal effects and not adapted for the better use of the house. A further case on this wording has determined that motor vehicles in a shed were not personal effects and were included in the description of the “contents” of the shed in which they were stored.)

Tax and Duty Consequences

Where an estate consists of dutiable property an incorrect interpretation or distribution of an estate could cause the Office of State Revenue to determine there has been a resettlement of the estate making the estate or personal representative liable for transfer duty; which could be significant.

Possible Solutions

Court Order – In circumstances where the meaning of a will is disputed or uncertain, it is often necessary for an application to be made to the Supreme Court for a binding determination to be made by a Judge.

By agreement of the beneficiaries – It may be possible to have the beneficiaries reach an agreement as to how an ambiguous Will should be interpreted however this would be the least favourable method as this may still attract duty if the Office of State Revenue takes the view that there has been a resettlement of the estate.

Acting on Advice – Section 76 of the Trusts Act (Qld) allows the court to relieve a personal representative from liability for breach of trust where he/she has acted honestly (e.g. by following legal advice provided to them by their solicitor or barrister’s opinion).

In short if you have any concerns or queries as to how a will should be interpreted you should seek legal advice to help resolve that issue before the estate is finalised.

8 views0 comments