Recent Court Cases Highlight The Clear Drafting Of Wills

In the matter of Cox (Deceased) [2017] SASC 41, Mr Cox had drafted his Will using a Will kit. Mr Cox appointed his wife and one of his sons, Stephen, as his Executors, with the proviso “but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting” then his other son, Sean, should be appointed as an Executor. The Will was therefore ambiguous about whether either of Mrs Cox or Stephen or both of them had to be unwilling or incapable of acting as an Executor before Sean would be appointed as an Executor. There was a reference later in the Will to “my Executors”, so the Court decided that Mr Cox’s intention was for two Executors to be appointed and therefore for Sean to also be appointed if only one of Mrs Cox or Stephen were unwilling or unable to act as an Executor.

In Re Staughton; Grant v McMillan [2017] VSC 359, the Court had to consider if the gift to the Testator’s “grandchildren” included his son’s step-children. The Judge had to determine what the Testator’s intentions were and considered the relationship between the Testator and his step-grandchildren before eventually finding that the step-grandchildren should be included as “grandchildren” as contained in the Will, and should therefore share in the gift. It is important to note that step-children do not automatically fall into the class of “children” and it is important to make this distinction clear in a Will.

In the case of Brant v Murray [2016] WASC 390, the Court considered a clause in a Will which gave the Testator’s house to his nephew and then said “should he decide to sell my house I request that he give $50,000 to” two certain people. The Court found that the clause lacked certainty and therefore the house was gifted to the nephew absolutely, with no requirement to give any of the proceeds of sale to anyone if he decided to sell it.

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