Drafting a Will is Serious Business

H died in December 2016 with an estate valued at over $25 million. H’s final Will (“the Will”) was executed 8 days prior to his death; probate was granted in May 2017.

Lawyers did not draft the Will; however, H had instructed lawyers to prepare a Will in late 2014 and parts of the Will were based on that draft (‘the Draft”).

In early 2015 H had a discussion with his daughter regarding the draft instructing her

 ‘I want to simplify it, so I’ve crossed out some bits that I don’t want in my will anymore.’

H then handed his daughter (who provided administrative assistance to him at the time of preparation of the Will) the draft and asked her to type a new will using the draft as a template and to delete clauses that he had put a line through.

The executors of the estate sought answers to various questions regarding the construction of the will; alternatively, the executors make application for rectification of the Will pursuant to s 31 of the Wills Act 1997.

Beneficiaries of the testamentary trusts created by the will

Clause 9.7A of the draft set out the beneficiaries of each of the seven testamentary trusts. Although H struck out many of the clauses no handwritten amendments were made to cl 9.7A(a) to (g). In her written submissions, H’s daughter stated that this was due to her oversight; as a result, the Will does not give effect to H’s instructions to her, nor carry out H’s intentions.

In order for the Will to reflect H’s instructions, it is necessary that the will be rectified by specifying the primary trustee of each of the testamentary trusts

The Beneficiaries of each Trust are reflected as follows:

(a) for the H Will Trust No. 1:

(i) H’s grand children, and in relation to this Trust only, those people are called the Group 1 Beneficiaries;

(ii) H’s son, and in relation to this Trust only, this person is called the Group 2 Beneficiary;

(iii) H’s great grandchildren, and in relation to this Trust only, these people are called the Group 3 Beneficiaries;

(iv) H’s great great-grandchildren, and in relation to this Trust only, these people are called the Group 4 Beneficiaries; and

(v) the cousins, aunts and uncles of the Group 1 Beneficiaries, and the children and grandchildren of the cousins of the Group 1 Beneficiaries, and in relation to this Trust only these people are called the Group 5 Beneficiaries;

Gifts to grandchildren

Similarly Clause 4.1 of the Will deals with gifts to the Grandchildren; however, there are two significant differences from the draft Will,

a) the amount of the bequest has been increased from $15,000 to $25,000.

b) the vesting age has been reduced from 21 years to 18 years.

However the by prescribing a vesting age of 21 years, the Will does not give effect to H’s instructions to amend the draft to provide for a vesting age of gifts to grandchildren to be 18 rather than 21 years of age. Therefore the Court ordered that the will be rectified to reflect H’s wishes.

Termination Date – Winding up the Will Trust

In order to give effect to H’s intentions to make provision for the beneficiaries for the purposes of the application of the termination or winding up of the Trust, it is also necessary to amend the Will by adding the section of the draft which Carrie failed to incorporate into the Will.

If the Will had been completed by a Lawyer it would have most likely reflected H’s intentions and wouldn’t have required the legal costs involved with seeking the order for rectification in the Victorian Supreme Court.


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