Legal Hypothetical: Litigation to resolve ambiguity in will


Litigation to resolve ambiguity in will

BRIAN was a wealthy man who owned real estate, shares, cash and an extensive classic car collection.

At the time of his death, Brian was married to Julie and had three children to his first wife who had died in a car accident 25 years ago.

Brian’s will left his real estate and ‘personal effects’ to Julie.

His children were left his family heirlooms, photographs, personal papers and the “residue” of Brian’s estate.

Brian’s children were appointed as the executors of his will and after obtaining a grant of probate, distributed the shares, cars and cash to themselves.

Julie believed she was entitled to Brian’s shares, cash and car collection on the basis that they were ‘personal effects’ and commenced action in the Supreme Court in what is known as a ‘construction suit’.

The children defend the action, arguing that the shares, cash and classic cars are not ‘personal effects’ and that they should form part of the residue of the estate, to which they are entitled.

There was no evidence of Brian’s actual intentions.

The Court stated that the term ‘personal effects’ comprised something with which Brian had some ‘personal connection’ or was ‘accustomed to use and enjoy personally’.

Additionally, the Court stated that the term ‘effects’ should only include physical or ‘tangible’ items.

The Court ultimately ruled that the reference in Brian’s will to ‘personal effects’ included the classic car collection, to which Julie was entitled and the children were entitled to the shares and cash.

When providing your will instructions to your solicitor, it is important that careful consideration is given to items of value.

Your solicitor should then clearly draft your will to avoid ambiguity so that your intentions are realised without resort to litigation.

If YOU would like a particular issue addressed, please email me at [email protected] or call me on (02) 66 487 487.

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