Recent Court Cases Highlight The Clear Drafting Of Wills

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Some recent Court cases have highlighted the need for Wills to be clearly drafted to ensure that the Testator’s wishes are correctly carried out after their death (and to prevent the wastage of unnecessary Court costs).
  • 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.

If you need to update your Will, please contact us to make an appointment to discuss further.

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law