Establishing the Meaning of the Will maker

In December 1911 following the death of their mother George, John, and Catherine Hendry started an agricultural partnership. Catherine was declared insane in 1927 and John died Intestate in July of 1929. Isabella, who was John’s next-of-kin , took over his interest in the partnership. George died in September 1955 leaving a will dated 19th August 1929.

In his will George bequeathed “all my livestock” to his nephew Gordon Hendry. He left the remainder of his estate which he described as “all my real estate” to be sold by his executor the money raised to be distributed to the sons of my cousin in equal shares and “the residue of my personal estate” to be sold and the money raised to be held in trust for Isabella Hendry”.

The Executors of the Will sought the determination of the court as to the proper distribution of the estate given that he owned neither livestock nor real estate.

Where the executor or beneficiaries are unsure of the meaning of the Will they may have to seek guidance from the Court as to how to distribute the assets in the Will. In some instances there could be difficulty construing the meaning of certain words in a Will or if the Will mentions ‘my nephew Paul” and the Will maker has two nephews named Paul.

As the Will maker has died it can be difficult for their intention to be established. As a Will is a written document the court has to weigh up the actual intention or the expressed intention of the Will maker is what the court should seek

The will must be construed as a whole with courts seeking to identify “the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if .. possible, to give effect to the scheme”

Courts do not construe intention from the point of view of the person on the street. If Courts were to do this they could compound problems by construing the intention of the Will maker and then adopting that interpretation legally.

In construing George Hendry’s intention the Court had to determine what the testator meant by his words in his will and in the light of the circumstances as they existed immediately before his death. The Court concluded that George was dividing what he had into three parts, and that he was disposing separately of his partnership interest in livestock, the net proceeds of his partnership interest in land, and of the net proceeds of the value of his interest in any personal property other than livestock.



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