A solicitor drafting a will uses language carefully to ensure that the meaning is clear and unambiguous. It should be possible for someone who knows nothing about the will maker’s circumstance to understand exactly what is meant.
When someone writes their own will, they may use language which makes sense to them at the time of writing the will but which may be capable of being interpreted in more than one way. For example, someone drafting their own will may say “I give XX to my family” thinking that it is obvious exactly which people are meant and the proportions in which the gift should be shared between them. In fact, of course, it is not at all obvious. When the wording in a will is ambiguous, the executor generally has to make an application to the Court to have the Court determine how the will should be interpreted.
An example of where a problem occurred was where a home-made will contained a gift of $10,000.00 to “the Blind Dogs”. There were at least two organisations that might have been the intended beneficiary – the Guide Dog Association of New South Wales and ACT and Seeing Eye Dogs Australia. An application had to be made to the Court to decide who was the intended beneficiary.
Another example was where a home-made will left the will maker’s house to be sold and the proceeds divided between “Lisette, John, Matthew and my daughter Michelle and her husband John”, but the will did not specify the proportions to go to each of the named beneficiaries. If the proceeds where to be divided equally, the question was whether there were to be four equal shares or five, ie should Michelle and her husband receive one quarter or one fifth each. Again it was necessary to let the Court decide what was intended.
In my last blog in this series I will discuss the problems of failing to give away everything and why it is a good idea to consult a solicitor when making a will.