Equivocation & Extrinsic Evidence

Where the language of the Will may apply equally to two or more objects or people (equivocation) Courts are permitted to look at direct evidence of the intention of the Will maker. It should be noted that in most Australian jurisdictions, if the will is ambiguous, legislation allows the Court to take into account the intentions of the Will maker to construe a Will.

Inez Barbetti died of chronic lymphatic leukaemia in October 2002. She was a widow and had no children. Barbetti’s parents and eight siblings predeceased her, however she had nieces and nephews who received legacies under her Will.

Several months prior to her death Barbetti instructed her solicitors to prepare a Will, which was executed on 12 August 2002. The Will required her executor to sell her property and distribute the proceeds to friends and family members. A niece received some of her household goods with the bulk of them going to “The Salvation Army (Western Australia) Property Trust”.

Barbetti’s estate was distributed except for a gift of around $200,000 made to “The Leukaemia Research and Support Fund Western Australian Division”.

The executors of the estate could not find an entity called “The Leukaemia Research and Support Fund Western Australian Division”, however there were several organisations with similar names. The Leukaemia Foundation of WA Inc. (“the Foundation”) and The Children’s Leukaemia and Cancer Research Foundation Inc. (“the Children’s Foundation”) both claimed to be entitled to the gift in the Will.

The executor asked Barbetti ‘s friends and family who the intended gift was for, but she was a private person and did not discuss her charitable bequests. The executor was no clearer as to whether she wished the money to be left to research into childhood or adult leukaemia.

Extrinsic Evidence

The Court gave consideration to whether the intended beneficiary was misdescribed. The Court had to first be satisfied that one of the organisations was the intended beneficiary of the gift, or the gift would fail. As there was a degree of ambiguity in the language used by  the Will maker, extrinsic evidence was used to ascertain the intention of the deceased.

The Court took into account the surrounding circumstances including Barbetti’s connection to Western Australia; that she died of leukaemia; that a member of her family circle who was also a beneficiary named in the Will, had received benefits from an organisation involved in leukaemia services and research; more importantly the extrinsic evidence showed no indication that she wished to assist research into childhood leukaemia.

The Court after viewing the extrinsic evidence in this context clarified the ambiguity in the Will and concluded that this was a case of misdescription, and that the deceased intended to benefit the Foundation.

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