Plain & Unambiguous – it’s a good thing

Maria Zuvela Grizun died on 2 October 1992 aged 89. She had made a Will on 13 October 1987. Probate was granted on 20 May 2013. The will was ‘home made’ on a will form that is widely available from stationers. The printed parts of the will and the deceased’s name, her address, and name and address of her executor (Joseph), and the date were all written in English. The rest of the Will was written in Croatian. ( A translated copy was attached to the probate documents).

At the time Maria made the Will she owned a property and its contents in Orange Grove, various bank accounts and property interests in Croatia.

The executor of the estate sought the direction of the  Court  in relation to two gifts expressed in the following passage of the translated Will:

“Unto my sons Vince and Joseph Zuvela, both of Orange Grove I leave to them property – after my death – while they are alive – and after their death it goes to Vince’s son Paul and to his male children. But if Joseph has no children then it still goes in this way; to daughter Mary Neskovic of 455 Main Street, Balcatta they have to give $2,000;”

The executor wanted these particular questions answered:

(a) What is the property which is the subject of the gift is it the  property where the deceased lived at the date she made the will and when she died, 62 Maddington Road, Orange Grove (the Orange Grove Property), or is it some other property forming part of the deceased’s estate?

(b) Is the gift an absolute gift to Joseph and Vincent or did it confer on them a life interest?

(c) If the gift was of a life interest only, who was entitled to the remainder?

When the Court took extrinsic evidence into account in accordance with the ‘armchair principle’, the word ‘property’ was construed as referring to the Orange Grove Property.

However the Court held that from reading the Will as a whole gift the deceased intended that Joseph and Vincent should have a life interest only in the Orange Grove Property as joint tenants:

“I leave to them property – after my death – while they are alive – and after their death it goes to Vince’s son Paul and to his male children”

The language is plain and unambiguous that the gift was a life interest in the Orange Grove property to Vince & Joseph with the remainder going to Vince’s son Paul and his male children living at the date the surviving life tenant dies, including un born male children and adopted male children

As the Orange Grove Property has now been sold, Joseph and Vincent are entitled to share in the income derived from the proceeds of sale equally during their joint lives and the survivor is entitled to all income during the remainder of his life.

If the Will maker had taken advice and had a Will drafted so that the language was plain and unambiguous they would not have had to approach the Court to construe the Will. It is a further example that you need to plan for your future and regularly update your Will to reflect your testamentary intentions.

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