Last will and testament.

Ambiguous Wills

Ambiguous Wills In NSW

The importance of properly drafting a will

A Will is a fundamentally important testamentary document which sets out how your assets will be distributed after death. To ensure that your testamentary wishes are documented correctly, it is pivotal that your Will is drafted in clear terms and is not ambiguous.

Poorly drafted Wills may lead to a Court determining what your testamentary wishes were, even though the Courts determination may not have been the way you wished your assets to be distributed.

In the Estate of Cox (deceased) [2017] SASC 4, a recent case in South Australia, the deceased had drafted a Will using a Will kit and a pre-printed document. The deceased appointed his wife and his son as Executors. However, the deceased failed to properly draft his Will and fill out the form completely, which left ambiguity as to who he was appointing as his Executors.

The following excerpt shows Clause 2 of the deceased’s Will:

“I appoint Kathleen Anne Cox of 10 Sixth St Orroroo Postcode 5431 in the State/Territory of South Australia and I appoint Stephen Richard Cox of Unit 11 No 30 Bronte St East Perth Postcode 6004 in the State Territory of W.A. to be the Executor(s) of my Will and Trustee(s) of my estatebut if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting, then I appoint Sean Donnald Cox of 260 Clovelly Lane Murgon Postcode 4605 in the State/Territory of Queensland.”

As highlighted in the above excerpt, the deceased failed to cross out the relevant words. This clause became problematic, because the deceased wife, Kathleen predeceased him. Clause 2 of the deceased’s Will left ambiguity as to whether the deceased wanted his substitute Executor to be appointed if his wife pre-deceased him. Therefore, the Court had to determine who was entitled to the grant of probate. The Court does this by considering what the testator’s intentions were. In this case, the Court examined the various other clauses of the deceased’s will and determined that both the deceased’s son were jointly entitled to apply for a grant of probate.

This case highlights the importance of having a properly and carefully drafted Will. There can be many negative and unexpected consequences if your Will is not drafted carefully. The Court could determine that your will should be set aside. Drafting Wills requires specialised skills and will and estates is a specialised area of the law.  Expert Will advice can protect the disposition of your assets, protect against these assets being lost in divorce proceedings of a beneficiary and can resist claims made upon the estate.

One of the best ways to minimise the risk of your Will being disputed after your death is to seek expert legal advice. Sydney Wills Lawyers are experts in drafting Wills and the principal Graeme Heckenberg has over 25 years’ experience in this area of law.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9221 2779 or email info@hecken.com.au or see our Booking Page to schedule an appointment.

Our offices are conveniently located in Sydney, CBD and close to public transport.