At HKH we have seen too many times the expense, delay and angst caused when a DIY Will doesn’t quite make sense or doesn’t meet the legal requirements of a Will.

HKH recently represented a beneficiary in the first ACT Will rectification case before the ACT Supreme Court. In this case the Court was asked to determine what the testator intended meant when he amended his Will. This was the first case of its kind in the ACT and it involved some complex issues such as the proper execution of a Will, the interpretation of a Will where the intention is not quite clear and the power of the Court to ‘rectify’ a Will.

Facts of the case

• The Testator, Mr Rummer, executed a Will with his solicitor on 20 August 2015.
• Some months later, on 5 December 2015, Mr Rummer dictated amendments to his nominated Executor who was sitting by his bedside.
• The original Will dated 20 August 2015 provided that:
  • the sum of $25,000.00 would be given to his friend close friend, Roy; and
  • the rest and residue of his estate would be given to his friend Judith (the Defendant in the proceedings).
• Mr Rummer made handwritten amendments to his Will to:
  • delete the gift to his friend, Roy;
  • give “most of the rest and residue” of his estate to his friend Judith; and
  • after the gift of residue to the Judith, inserting the words “and amounts as directed to my Executor to my friends Pat… and Peter…”.

• The amendments were signed by Mr Rummer and became a ‘Codicil’ (an addition) to the original Will.
• Sadly, Mr Rummer passed away later that day.
• The Executor then had to determine what the words “most of the rest and residue” meant. The executor made an application to the Court for an order that the residue clause should be amended to give one-half of the residue of the estate to his friend Judith and a quarter to each of Mr Rummer’s friends, Pat and Peter, effectively replacing the words “most of the rest and residue” with “one-half of the rest and residue”. The Executor maintained that such was Mr Rummer’s intention based on her conversations with him.
• The Court was also required to determine the true construction of the monetary gifts made by Mr Rummer in his Will – specifically, the phrases “most of the rest and residue” and “amounts as directed to my executor”. How much exactly does this mean?

Judgment

The Court found that:

• Mr Rummer did not intend that Judith only receive one half of the residue;
• The gifts to Pat and Peter for “amounts as directed to my executor” failed for lack of certainty; and
• Mr Rummer probably intended to leave some amount to his friends Pat and Peter, and after looking at the evidence, found that this amount was to be $35,000 each.

1. Evidence of intention and the meaning of the term “most of the rest and residue”

In making its decision, the Court took into account evidence such as an email sent by Mr Rummer to his former solicitors regarding the “minor changes” he wished to make to his Will, as well as notes written by the Executor detailing her recollection of events that took place on the day that the amendments to the Will were made. In considering the evidence, the Court found that Mr Rummer’s statement in his email “minor changes” was inconsistent with the Executor’s recollection of events.

The Court also considered the ordinary meaning of the word “most” of which means ‘in the greatest quantity, amount, measure, degree, or number’ (Macquarie Dictionary, 7th ed) and said “the plain meaning of the word [most] is not ‘half.”

2. Construction of “amounts as directed to my executor”

In considering the construction of the phrase “amounts as directed to my executor”, the Court held that it was not satisfied that Mr Rummer’s intention at the time of amending the Will was to gift Pat and Peter a quarter each of the residue of his estate.

In light of this uncertainty, the Court moved on to consider what Mr Rummer probably intended.

The Court took into account the Plaintiff’s notes regarding what Mr Rummer had hoped Pat and Peter would use the money for, as well as the previous gift Mr Rummer had made to his friend Roy in the first instance (i.e. the sum of $25,000.00). The Court then held that Mr Rummer’s probable intention was to gift an amount of $35,000.00 to each of Pat and Peter.

This was an expensive lesson for Mr Rummer’s estate to learn about being clear and precise when drafting a Will and making sure your Will complies with the legal formalities.

If you are involved in an estate dispute or want to want to make sure your Will makes sense, get in touch with HKH today.