Ambiguous words and conflict

One of the principles that Courts apply when construing Wills is if the effect of a gift in a Will is quite clear any subsequent ambiguous words cannot have the effect of reducing the scope of the clear gift.

Leo Aubrey was a newsagent. He owned the family home at 81 Harris Street, Harris Park, along with other properties. He died leaving a Will naming his widow, Mildred Maria Wilson, as executrix, and his daughter, Helen Kathleen Wilson and Wife as beneficiaries.

Leo Aubrey’s Will was a short poorly drafted document. The Court believed that it had been prepared using a form that can be purchased inexpensively from a newsagent.

Leo directed that his wife, Mildred was to have full use of the family home and that upon her death the family home was to become the property of his daughter, Helen  Wilson.

The following provision was the basis for litigation

“The remainder of my real and personal possessions is to become the property of my wife Mildred Maria Wilson. I also direct that my wife Mildred Maria Wilson is at liberty to dispose of any portion of my estate if she thinks it is advisable with the exception of course the property known as 81 Harris Street, Harris Park.”

When Mildred Wilson died the executors of her will sought clarification of this provision in Leo’s Will. Mildred’s executors argued that all property or the proceeds of the sale of the property went to Mildred under Leo’s will. Her daughter Helen claimed that it passed to her under the following provision of her father’s will:

“I also direct that upon the death of my wife Mildred Maria Wilson all of that portion of my possessions remaining is to become the property of my daughter Helen Kathleen Wilson”.

However Leo had given Mildred the power to dispose of any portion of the estate during her lifetime for her own benefit.

When the Court considered the will as a whole, the intention of the Will maker is to give the Mildred an absolute interest in the residuary estate; the direction that she is at liberty to dispose of any portion of it she thinks “advisable” confirms this. Therefore the ultimate direction in favour of Helen must be void.

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