The Orchardist and the Home made Will

Sally Ann and Steven Rainoldi lived with their daughter Kayla at 152 Holden Road Roleystone, where they were partners in an orchard business.

Steven Rainoldi died on 8 April 2011 leaving a will dated 13 July 2006. The will was homemade and appears to have been drafted after discussions between Rainoldi & his de facto wife Sally Ann, following his diagnosis with cancer .

The terms of the homemade Will may have seemed obvious to the Steven and Sally Ann Rainoldi , however the deceased’s children from his first marriage and Kayla sought the direction of the court to clarify issues in the language used. Some of these matters were decided prior to the hearing however  assistance was required to clarify the provision as to the continuation of the business partnership between the Will maker and Sally Ann , and if there was a partial intestacy as to the Will maker’s  partnership interest.

As has been discussed in earlier posts when a Court is asked to construe a Will there are four overriding principles.

• First, in construing the will the object of the court is to ascertain the intention of the testator as expressed in the Will.
• Second, the Will must be read as a whole and in the light of the surrounding circumstances.
• Third, in relation to surrounding circumstances the court may adopt the ‘armchair’ principle.
• Finally, prima facie, the words and phrases used in the Will are to be given their ordinary meaning.

In addition to the above, there are legislative provisions to assist the Court in construing the Will

The Court took the view that the partnership was dissolved on death of Steven Rainoldi, after his death, there was no partnership business to continue. The partnership would then have to be wound up and the assets distributed to the respective parties. Therefore there was a partial intestacy as to the Will maker’s interest in the business partnership between himself and Sally Ann. There is of course, no residuary clause in the will therefore each of the children takes a one third interest in the property.

If Mr Rainoldi’s will wasn’t so poorly drafted the beneficiaries wouldn’t have required the Court to intervene and the executor of the estate could have administered the estate much sooner, saving the family from further hardship following his death.