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Homemade wills and ‘will kits’ appear to be uncomplicated and affordable alternatives to seeing a lawyer, but beware; they can end up being more disastrous than you might think. In the words of Master Sanderson of the Supreme Court of Western Australia: ‘homemade wills are a curse’. Whilst there is no doubt that testators know exactly what they intend to achieve when writing their will, the difficulty lies in the way the will is drafted. Many homemade wills end up in court with parties disputing their proper interpretation. Thus, homemade wills can become a complicated and costly enemy in disguise. The Supreme Court of Western Australia’s decisions in Rogers v Rogers Young and Gray v Gray are two examples of homemade wills which turned sour.
In short, the object of constructing a will is to give effect to the testator’s intentions. Whether a will is drawn up by a lawyer or by a lay person, the court will apply the same principles of construction. Section 33C of the Succession Act 1981 (Qld) is important for homemade wills and provides that where the language of the will is ambiguous, the Court will turn to evidence, including that of the testator’s intentions to help interpret the language used in the will.
In this case, the deceased made his four children co-executors of a considerable estate in excess of $7 million. The majority of the estate was left to the children. Little provision in the will was made for the deceased’s then wife, Roma who subsequently brought a family provision application under the Inheritance (Family and Dependents Provision) Act 1972 (WA).
The Court was required to determine the proper interpretation of the homemade will. This was made particularly difficult because the will was complicated and contained many omissions which made it very difficult to ascertain precisely what the will maker had intended. The Court even noted that attempting to give effect to some of the conditions imposed on the gifts ‘would in fact be unworkable’. The failure of the deceased to have a properly executed will left his family in a 10 year long period of disagreements and legal battles. The opening paragraph of Master Sanderson’s judgement explains the danger of homemade wills:
‘Home made wills are a curse. Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the will can be glossed over and the interests of all parties can be reconciled. But where, as here, the estate of the deceased is substantial, the will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.’ (at [1])
The plaintiff in this case was the executor of the late Kathleen Mary Rogers’ will. He sought directions from the court as to the proper interpretation of the will pursuant to s 45 of the Administration Act 1903 (WA) and s 92 of the Trustees Act 1962 (WA). The difficulty with this homemade will related to the residue of the estate. The first defendant, Alexandra Rogers Young, was the deceased’s only child. At the time of her mother’s death, Alexandra was 16 years of age; a minor. The question before the Court was whether on construction of the will, Alexandra acquired a vested interest upon reaching the age of 18, or upon reaching the age of 25.
The Court referred to the principle outlined in Saunders v Vautier which provides that a beneficiary who has an absolute vested and indefeasible interest in the trust receives that interest upon reaching the age of majority, that being 18 years of age. The plaintiff presented evidence that the deceased clearly intended for Alexandra to inherit the estate only upon her reaching 25 years of age. However, the Court held that the clause ‘Trust for Minors’ which sought to reflect the deceased’s intention did not alter the preceding clauses ‘Residuary Estate’ and ‘Incidental Beneficiaries’. Instead the Court was satisfied that the drafting of the will was ‘tolerably clear’ that the whole of the deceased’s estate would pass to Alexandra once she reached the age of 18.
Both cases stress the importance of ensuring that your will is drafted by a competent and properly qualified lawyer. Why? Because it may be difficult to ascertain the true intentions of a testator as set out in homemade wills. Remember, whilst your intentions may be very clear to you as a testator, they may not be as clear to others attempting to ascertain them from your writing after you are gone. In both the cases mentioned, the outcome may not have been what the testator had in mind because the construction of the homemade wills were unable to adequately give effect to their true intentions. This is why it is important to ensure your loved ones are left with the clarity of a properly executed will which accounts for your true wishes.
Please note that this memorandum is not legal advice but may help you understand the law. If you have a query regarding testamentary discretionary trusts, contact our dedicated team at Kenmore Mediation and Law Centre on (07) 3378 4006, or at jnod@kmlc.com.au