SUCCESSION — In 2014, the deceased (then 87) made a formal Will gifting his estate to his wife (then 88) with a gift over to his daughter (P), making no provision for his other three children (sons, D1-D3) — In June and July 2018 the deceased revisited his Will and requested his nephew to assist him in preparation of it — A home-made Will was prepared and executed — Subsequent to the deceased’s death, contest arose regarding the true construction of the deceased’s disposal of his residuary estate (which was substantial including a house and other land at Murwillumbah) — The final part of the Will contained wording of a purpose “Providing the most appropriate care for my loving wife” (Care purpose) — Two of the deceased’s sons (D1 and D2) contended that the residuary gift failed so as to give rise to an intestacy and P contended the gift was effective to give her beneficially the entirety of the residuary estate list — P also sought rectification consistent with that construction — Orders made for separate determination of the construction and rectification issues — The parties accepted that the residuary clause was ambiguous — Construction issues arose as to whether the Care purpose: (a) was precatory or mandatory; (b) qualified the whole of the gift of residue; and (c) was exclusive in focus thus conferring no beneficial interest on P — Held on the true construction of the Will, P is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue
SUCCESSION — Will construction — Evidence — Discussion of admissibility and use of extrinsic evidence being context evidence and intention evidence (general law and statutory), in light of acceptance of ambiguity — If evidence is to be given as to the value of the deceased’s property at all, it is helpful to have evidence as the date of the Will that is the subject of the construction dispute, rather than “probate values”, years after the date of the Will
SUCCESSION — Will construction — Discussion of object of Will construction — Discussion of approach to construction of home-made Wills including discernment of ‘schemes’, use of grammar and sentence structure, discerning whether language is precatory or mandatory, determining the effect of gift purpose provisions and testing of alternate constructions
SUCCESSION — Will construction — Formatting (relevantly bolding and capitalisation and hyphen operating as an em dash) — Discussion regarding effect and use of text formatting in discerning construction in circumstances where the drafter used a Google form precedent
Quick Take
1Where a home-made will uses text formatting (bolding, capitalisation, hyphens functioning as em dashes) derived from an online form precedent rather than consciously chosen by the testator, a court should exercise considerable caution before attaching constructional significance to that formatting, consistent with the principle that reliance on punctuation or formatting requires satisfaction that it was used consciously and not haphazardly.
2When a testamentary gift of residue to a named beneficiary is followed by a statement of purpose beneficial to a third party (here, care of the testator's wife), the purpose clause does not necessarily qualify the entire residuary gift or negate the beneficiary's beneficial interest; the structure of the will, including the placement of survival provisos and the scheme of dispositions, may indicate the purpose clause attaches only to a substitutionary gift-over rather than to the primary gift.
3Applying the Countess of Bective framework, where a residuary gift is made to a person who has been gratuitously caring for the person identified in a care purpose clause, and the fund substantially exceeds the likely cost of that care, the proper construction may be that the recipient takes beneficially subject at most to a charge, with any surplus belonging to the recipient — particularly where a construction resulting in intestacy would be inconsistent with the testator's overall testamentary scheme.
