These notes take into account what you are legally allowed to use in a will alongside what should be included and why. It will then describe the rules on extrinsic evidence and how to rectify issues within a will. The construction of a will includes the interpretation rules and describes the case l...
A will is rendered no good if there are mistakes and ambiguities
- This is a particular problem with DIY wills
- Estate is personalty, not realty
- Errors can make their way in either way though
What happens when an issue of drafting arises?
- The court can aid as to the interpretation of the clauses
o The court will look at the will and try to ascertain the intention of the testator
reading the will as a whole
o Not there to rewrite the will or guess the intention of the testator. Re Rowland
[1963]
- The armchair rule
o The court should put itself in the arm chair of the testator as per Boyes v Cook
[1880] meaning to place itself in the testator’s position and consider the factual
context behind the will
o The modern adaptation comes from Marley v Rawlings [2014]
‘when it comes ti interpreting wills… the aim is to identify the intention of
the party… by interpreting the words used in their documentary… [and]
factual context’
Lord Neuberger
For example in Reading v Reading [2015] the word issue came with
problems. The court ruled that it came with including step-children by using
the arm chair rule
o In its approach to interpretation, the court has developed rules and presumptions
In Marley v Rawlings [2014] the court created some presumptions for future
courts to follow with regards to interpreting wills
Non-technical words should be given their ordinary meaning
o If someone says ‘my money’ it should not go beyond that
Technical words should be given their technical meaning
These are just presumptions so they are rebuttable
The court may realise this by reference to extrinsic evidence
o Evidence outside of the will. This is tightly controlled but can
be helpful in certain circumstances
o Rules on extrinsic evidence
Generally the court will stick to deciding on matters of interpretation based
on the will itself
To do otherwise renders S.9 WA 1837 pointless
S.21 Administration of Justice Act 1982 permits the use of extrinsic
evidence if:
Language is patently ambiguous (ie ‘my effects’)
Evidence shows a latent ambiguity (ie a beneficiary with a name
that multiple family members have
- Interpreting a will
o Consider from which date the will speaks
, A testator’s estate can change after making a will. So from what point in time
is the court supposed to attempt to give meaning to a will
There are 2 issues to consider here:
Property
o S.24 WA 1837 states the time that is relevant is the time of
death (the property spoken of is assessed as if the will was
executed immediately prior to death)
o If the gift is generic (capable of increase or decrease) it is to
be constructed as things stood at the time of death
If the testator wanted to give away a certain type of
book and there was 10 at the point of writing the
will but there was 20 at the point of death, 20 would
be given
o Contrary intention can displace S.24
This can be done through use of a specific legacy
such as ‘I gift my piano which I currently own’
The relevant date then becomes the date the will
was executed. If a different piano is now owned the
gift may fail
People
o S.24 does not apply to people, for people the relevant date
is the date of execution
Ie a gift to the ‘eldest child of B’ is taken to mean
whoever fulfilled that criteria as of the date of the
execution
o If the beneficiary predeceases the testator then the gift fails
(in the absence of contrary intention)
For example, putting in provisions for someone else
to take that share of the will
o This rule does not apply to class gifts
They have their own rules
2 approaches:
Rectification
o Power to change a will to ensure it reads as the testator
intended it to S.20 Administration of Justice Act 1982
o This can be done by removing, adding or amending the
words found in the will
o Drafting errors are rectified to reflect the testator’s
intentions
o This is an extreme power therefore S.20 is limited to 2
situation
Clerical error
The court gave this a wide scope in Marley v
Rawlings
These include things like draft errors, note
tsking and filing. Where the draftsperson did
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