I Don't Understand What My Loved One Meant in Their Will
When a loved one dies, part of the cathartic process of putting them to rest is dealing with their affairs as per their instructions in their will. However, sometimes what has been written is not especially clear or accurate, and unfortunately a poorly worded sentence can be a catalyst for widespread disagreement amongst beneficiaries and may even lead to a challenge to the terms of the will. If you are confronted with a will or part of a will which you don’t understand, this short article will provide you with a general guide on what to do, and in the event you do have to proceed to court, what principles the court will use to guide their decision making in attempting to resolve the ambiguity.
Speak With the Executor
If you are concerned about ambiguity in your loved one’s will, if possible, you should raise your concerns with the executor. There may be some consensus which can be reached as to the meaning of the ambiguous part of the will between all the interested parties. If the disagreement is resolved amicably, it will save all involved time and stress.
Contact a Wills and Probate Lawyer
If no consensus can be reached, then it is best to speak to a lawyer who deals with will dispute matters as soon as possible. This is equally applicable if you are an executor who is unable to make sense of a will or part of a will. The earlier you are able to obtain legal advice, the better, as it will at least allow you to gain a better understanding of the best way to deal with the ambiguity.
It may be possible for the ambiguity to be resolved through mediation. Mediation is a dispute resolution mechanism by which the parties come together and with the help of a neutral third party (the mediator) attempt to negotiate a mutually acceptable agreement. You should discuss this option and the benefits and disadvantages with your legal representative.
How Will the Court Deal With Ambiguity?
If the meaning of the ambiguous part cannot be resolved between the parties, you may have to proceed to court. The underlying principle when the court is attempting to find the meaning of words used in the language of a will is to give the words the meaning which the testator intended, having regard to the will as a whole (Carrington v Wallace  NSWSC 1301). This means the meaning of the written words in their context, rather than what the testator meant to write. The court is unable to give any intention which is not expressed in the will, or plainly implied in the language of the will (Scale v Rawlins  AC 342). This is because section 6(1)(a) of the Succession Act 2006 (NSW) requires that a will be in writing for it to be valid, and this rule would be undermined if the court found and gave effect to an intention not found in the meaning of the words used.
However, pursuant to section 32 of the Succession Act 2006 (NSW), evidence including evidence of the testator’s (will-maker’s) intention can be used by the court to assist in the interpretation of the language in a will if it, or any part, is meaningless, ambiguous on its face, or ambiguous in light of the surrounding circumstances. It is important to note that a will is not ambiguous in this context if it is simply difficult to determine. Ambiguity for the purpose of admitting extrinsic evidence under this section requires that the relevant word or phrase has multiple meanings which are capable of being applied without any distortion of the language used (Carrington v Wallace  NSWSC 1301).
What Happens if the Ambiguity Cannot be Resolved?
If the ambiguity cannot be resolved, the disposition may be deemed ineffective wholly or in part. If this happens, the relevant property will be treated as if it were part of the residual estate of the testator and will treated as if the testator died intestate. This means their estate, or the affected part of their estate, will be dealt with in accordance with the order of intestacy.
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