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Why is accurately describing relationships in your Will important?<\/b><\/p>\n
Many people wish to leave a portion of their estate to, for example, \u201cmy children\u201d, however, it is not always clear who falls into this category. Any adopted children, step-children or people you affectionately refer to as your son or daughter may complicate the interpretation of your Will.\u00a0<\/span><\/p>\n Ambiguous references to relationships in your Will can lead to unintended consequences, such as an uncertainty about who is classified as a beneficiary, leading to an increased <\/span>risk of a dispute between beneficiaries and non-beneficiaries. This may ultimately lead to a claim against your estate for provision or further provision.<\/span><\/p>\n If there is uncertainty, even in the absence of a dispute, the executor or administrator may still need to apply to the Court to seek advice on the construction of the Will. This is to ensure that they fully discharge their duty to act in accordance with your Will, and it will likely result in a significant expense for your estate.<\/span><\/p>\n So, what happens if there is uncertainty in a Will and legal proceedings ensue?\u00a0<\/b><\/p>\n If a relationship is incorrectly identified, or it is otherwise unclear who the testator (the person making the Will) is referring to in their Will, the Court has adopted some general rules to help interpret a Will.<\/span><\/p>\n The starting point is the literal approach, which is, to give a word or phrase its usual dictionary definition or ordinary grammatical meaning.\u00a0<\/span><\/p>\n Next, the literal approach is taken and viewed in the context of the whole Will, and what is known of the testator\u2019s intention at the time the Will was made. To determine the intention of the testator, the Court may utilise the \u2018Armchair <\/span>Rule’. This rule was conceptualised and named in the 1880 case <\/span>Boyes v Cook <\/span><\/i>(1880) 14 Ch D 53. Under this rule, the Court will place itself in the position of the testator and consider all the material facts and circumstances known to the testator at the time the Will was made in order to determine the testator\u2019s likely intention.\u00a0<\/span><\/p>\n The Supreme Court of New South Wales took this approach in the case of the <\/span>Estate of Grahame David Wright <\/span><\/i>[2016] NSWSC 1779. The Court had to consider whether the words \u201cdescendants\u201d and \u201cchildren\u201d in Mr Wright\u2019s Will included his step grandchildren. <\/span>The Court found that Mr Wright regarded his step grandchildren as his extended family, was openly affectionate towards them, gave them many gifts and Mr Wright even encouraged his son (the stepfather) to take good care of his step grandchildren because they were now his son\u2019s children and therefore, his son\u2019s responsibility. Mr Wright always referred to his step grandchildren as \u201cthe kids\u201d or \u201cthe grandchildren\u201d and he never differentiated them from his biological grandchildren by using the term \u201cstep\u201d.\u00a0 As a result, the Court concluded that the step grandchildren were intended to be beneficiaries of Mr Wright\u2019s Will.\u00a0<\/span><\/p>\n How can Hume Taylor & Co help you?<\/b><\/p>\n