Unambiguity – it’s important

I don’t have a real problem with a Will Kit – in most cases it is better dying intestate. However it is often more trouble than it’s worth.

Andrew Lubke died on 4 January 2016. His wife Melissa, and their children survive him.

Andrew and Melissa took an overseas trip in 2015 and decided to make their wills prior to departure. They went to a post office and purchased will kits and filled out the included blank will forms together. They didn’t seek any advice, legal or otherwise, concerning the preparation or content of either will.

During the course of preparing their wills, they discussed who they would appoint as executor in each will. Brian Claridge had been Melissa’s accountant since 2006, they both dealt with him on a regular basis in relation to their financial affairs, and he had provided advice to Andrew when he was executor of the estates of his sister and mother.

Andrew and Melissa met Brian Claridge in his office and asked him if he would be the executor of their wills. Mr. Claridge agreed to this request. They did not name an alternate executor.

Andrew completed the form naming Brian Claridge Accounting of 442 Elizabeth Street North Hobart as his Executor in the belief that if Brian could not operate as their executor, his successor who would have all our paperwork would handle the estate.

The will made a small bequest and then left the residue of the estate to his wife Melissa and in the event that she did not survive him their children. Melissa executed a similar will at the same time.

Brian Claridges’ accounting practice is conducted by an Australian company “Brian Claridge Accounting Pty Ltd”. The company operates from premises at 442 Elizabeth Street, North Hobart, its sole directors and shareholders are Brian Frederick Claridge and Nelson Mary Claridge. Importantly there is no separate business name registered as “Brian Claridge Accounting”.

It is unclear, whether Andrew’s intention was to appoint as executor Mr Claridge in his individual capacity, a business entitled “Brian Claridge Accounting”, which does not exist, or the company “Brian Claridge Accounting Pty Ltd”, which is, of course, a separate person.

Due to the uncertainty surrounding the identity of the executor, Melissa applied to the court that the will should be construed so that the appointment of the executor is of Mr. Claridge personally.

The Court construed that the will appoints as executor Brian Claridge and, if he is unable or unwilling to act as executor, his successor as a practising director of the company Brian Claridge Accounting Pty Ltd. Mr. Claridge will accept the appointment as executor and, accordingly, the Court held that this construction will adequately deal with the appointment of an executor in terms of an application to grant probate.

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