When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit. After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved. That’s right, isn’t it?
Well, yes and no.
Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible. When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged. If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough.
The problem is, when it comes to setting out your wishes for the allocation of all the things you have accumulated over a lifetime, it doesn’t take much for confusion to set in.
When considering their wills most people wish to ensure that specific items of property are given to particular people, sometime for sentimental reasons. In many other cases, people don’t want to simply divide up their estate equally among their immediate family. This may be because they feel they have already well provided for a particular family member. Sometimes a will contains a gift to a charity. Each of these scenarios can easily lead to ambiguity.
The Supreme Court of NSW recently[1] considered the terms of a will drafted by a retired childless grazier about a month prior to his passing, without the assistance of a will lawyer. In his will he left his house to his wife and one of their close friends. The will then left the same house to his brothers in law “in the event of [the]sickness or ill health of [my wife] or [my close friend] wanting to leave [the property]…”. When it came to interpreting the deceased’s wishes the parties to the will were unclear about exactly what ownership rights his wife and her friend had over the house. Would they own it, or did the deceased intend for them only to live in it?
Unfortunately it was left to the Supreme Court to sort out the mess, with the assistance of three barristers and three firms of solicitors. In cases such as this, a Court is left with the difficult task of trying to guess the intentions of the deceased: someone the Court has never met and will never get a chance to speak to. Inevitably this leads to a result that will leave one or other of the possible beneficiaries disappointed, and the deceased estate severely reduced by legal fees.
At Matthews Folbigg Lawyers we have a dedicated will lawyers who can take your wishes for the allocation of your estate and draft them into a will that is clear, concise and unambiguous.
[1] Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685
