One word can make all the difference

We have discussed the problems that can be faced by people who use a DIY approach to draft a Will believing that it is a cheap and easy solution, compared to the price that you pay when getting a lawyer to draft a Will. In a recent case the beneficiaries of a Will drafted by a professional in the 1930’s sought the guidance of the Court regarding the construction of a term.

John Morrissey died in July 1948. John’s grand children Nola and John are the trustees under his last will of October 1938. Nola and John’s father Thomas had another child, Imelda, who died in October 1987.

John’s will gave Thomas a life interest in his real estate; after his death it was to be divided among Thomas’s “issue children” or grand children in equal shares as Tenants in Common.

Nola aged 77, and John, aged 85 had a difference of opinion as the meaning of the words “issue children”. Is the gift shared equally by Nola & John or is it divided in three and shared by them and the children of Imelda equally.

Issue with relation to a Will refers to a person’s children or other lineal descendants who are part of the direct bloodline of the Will maker – such as grandchildren and great-grandchildren. In this instance the Court had to determine whether John meant issue to include descendants beyond his  immediate children. While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next generation unless there is language in the document that shows it specifically does not apply to them.

When construing the meaning of a Will the Court must look at the plain meaning of the words and sentences as part of the whole document, in order to give effect, if possible, to the intention of the Will maker.

The Court believed that the words “issue children” used in relation to Thomas exhibits an intention to narrow the usual meaning of the term “issue”, to his children only. The Court was unable to conclude that the Will was sufficiently clear that the words “or grand-children” were mistakenly omitted from parts of the Will. It may be that the reference was included as part of an attempt to benefit  Thomas’s grandchildren in certain circumstances but any attempt to do this was undermined by inadequate drafting.

As a result John’s real estate is to be shared equally by  Nola and John as tenants in common. Costs of the dispute were paid out of the Estate.

Administration of your estate may become a complicated process if your Will is poorly drafted. It is a false economy to believe that a Will kit is suitable in every situation as any saving that you might believe you are making may be multiplied many hundreds of times if your executor or beneficiaries are unsure of your intentions.


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