Application for judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2025
Where the Will purportedly gifts property to a person who does not exist
Construction of the Will
Quick Take
1The rule of falsa demonstratio non nocet cannot be applied to correct a misdescription in a will where the extrinsic evidence, including the solicitor's file notes of the testator's instructions, renders the testator's true intention a matter of speculation rather than sufficient certainty — the principle requires that the identity of the intended beneficiary be ascertainable with sufficient certainty from the will read as a whole and admissible surrounding circumstances.
2A gift-over operating on a survivorship contingency in a will does not take effect where the named beneficiary never existed, because the contingency of survival necessarily implies prior existence and subsequent death; the exception permitting a gift-over to operate on an unanticipated contingency applies only where it is obvious what the testator would have intended, not where the court must speculate.
3Where a will contains an express exclusion clause stated in unambiguous terms with reasons, a court will not read words into another clause of the will that would reverse that express exclusion, particularly where doing so requires compounding textual amendments based on speculation as to the testator's intention.
