Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209
Legal ‘construction’ refers to the process of ascertaining the meaning of a written document. Where a Will is not written clearly, it may be necessary for a court to construct the intended meaning in order to give effect to the Will. This may be because of a typographical error, such a spelling error, missing words, the change in word meaning over time, or where the phrasing is otherwise unclear.
Perrin v Morgan [1943] AC 399 provides that the ‘fundamental rule’ in constructing the meaning of a Will is ‘to put on the words used the meaning which, having regard to the terms of the will, the testator intended’. This case emphasised the importance of the ‘expressed intentions’ of the testator, rather than looking to what the testator may have meant to say. Further to this, De Lorenzo v De Lorenzo (2020) 104 NSWLR 155 said that “the intention of the testatrix is to be determined from the language of the will read in the light of the circumstances in which it was made”.
Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209 highlights that a court can “read words into a will where it is clear on the face of the will that words have been omitted from the will and what those words are”. This has previously been referred to as ‘moulding’, as it moulds the terms of the Will to avoid an “absurd and irrational result which would otherwise arise”. Butlin v Butlin (1966) 113 CLR 353 states that there should be “a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived by, the testator” where the Court corrects a will as part of the process of construction.
Another legal principle in the construction of Wills is a principle sometimes referred to as the ‘golden rule’ of construction, which follows that the Court should prefer a construction that avoids intestacy. That means, the Court should favour an interpretation of a Will which does not overlook the gifting of any part of the estate. As such, where the meaning of words in a Will are unclear, this rule calls for courts (where possible) to interpret the Will in a way that does not leave some part of the Estate undealt with.
In the recent case of Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209, the Court considered the ‘construction’ of the Will of Cedric Charles Hopping. Cedric died in 1990 and left a right of residence in his Will to his de-facto partner, Margaret, for his Toukley property. That is, Cedric provided the right for Margaret to live in the property for the remainder of her life. However, the provisions of the Will were not clear as to how the property was to be dealt with upon her death (referred to as the ‘remainder interest’ of the property). This came to their attention upon Margaret’s death in 2015.
Following disagreement between the beneficiaries as to who was entitled to the property, it was put to the Court to make declarations in respect to the meaning of the Will and make an order to amend the property title in accordance with the Court’s interpretation. The Court concluded that it was clear that Cedric “intended to make a particular provision of the remainder interest in the Toukley property”, between 9 beneficiaries listed in his Will. In reaching this conclusion, the Court also considered the context of the two Wills made shortly prior to Cedric’s final Will, which both support the Court’s construction. Ultimately, the Court made an order that the Toukley property be transferred into the name of the executor of Cedric’s Estate, so that it could then be distributed to the nine beneficiaries whom the Court constructed the Will as leaving the property to following Margaret’s death.
This case highlights the importance of ensuring your Will is drafted by a professional to reduce the risk of issues regarding interpretation.
If you have any questions or concerns please contact our Private Wealth Director Angela Backhouse on 02 6188 3600