Partial intestacy & the Homemade Will

Angela Thompson died on 1 September 2017 having made a Will dated 3 October 2015; naming her husband Trevor executor. Clause 3(b) the Will stated that

‘I wish my children to remain in abode as long as it is deemed reasonable’.

However a later clause, (cl 4)  provided the executor with the power

‘to sell, exchange or otherwise dispose of assets in my estate on such terms as he considers expedient as though he were the absolute beneficial owner’.

Trevor was granted probate of the will on 20 November 2017. The estate was valued at approximately $511,000. The major assets were properties at Boyup Brook valued $130,000 and Kelmscott valued at $370,000.

When Angela died , her daughters Sarah and Laura were living in the Kelmscott property; Trevor asked them to leave but they refused. Following a threat of eviction in June 2020 they vacated the Kelmscott property in November 2020; they have now consented to its sale.

In Trevor Alan Thompson as executor of the estate of Angela Helen Thompson v Upton [2021] WASC 158 Trevor sought the court’s direction under s 45 of the Administration Act 1903 (WA).

Notwithstanding the objections of Sarah and Laura the Court held the will was unclear and as executor Trevor was acting appropriately in seeking directions and expressed

‘Yet again, this matter illustrates the folly of persons making homemade wills…It is invariably the case that money spent on having a will professionally drafted is a sound investment’

In construing the words of a Will, a court will not guess at the testator’s intentions or make a choice as to that intention simply because it considers it a better interpretation. The Court prefers a construction that preserves rather than destroys gifts under a will and has been expressed as being a presumption against intestacy.

Additionally, if every attempt has been made to render the whole Will effective if two parts of a will are mutually inconsistent there is a general rule that the latter clause prevails.

Trevor submitted that cl 3(b) of the will is void for uncertainty on the following grounds;

First, the clause requires a majority of three beneficiaries being in favour of a sale. If such majority did not eventuate, the gift to Trevor of a one-third interest as tenant in common is postponed indefinitely.

Second, the provision impermissibly delegates testamentary direction to the three beneficiaries.

Third, provision as to the deceased wishing her children to remain in occupation of the property ‘as long as it is deemed reasonable’ is so vague as to be void for uncertainty. It expresses no more than a wish on the deceased’s part.

As it is a clear provision of cl 4 of the will that the executor has the power to sell estate assets. As it is inconsistent with the limitations sought to be effected pursuant to cl 3(b) and a later provision, it should prevail.

The Court held that even allowing for the presumption against intestacy, there is no alternative but to conclude that cl 3(b) is void for uncertainty. When cl 4 is added in it is not possible to make sense of the construction of the Will. The consequence of which is that there is an intestacy with respect to the Kelmscott property

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