Construction means working out the true meaning of a written instrument. In the context of Wills, the purpose is to guarantee that the will-maker’s intentions are fulfilled.
The fundamental task in construing a Will is to determine, by reference to admissible extrinsic evidence, what the testatrix intended by the words she used (see Fell v Fell (1922) 31 CLR 268, 273–274; Perrin v Morgan [1943] AC 399, 406, 416). That intention is gathered from the language of the Will, considered in light of the surrounding circumstances at its making.
The Court, in effect, may place itself in the “armchair of the testatrix” to properly appreciate the meaning of her language (Hatzantonis v Lawrence [2003] NSWSC 914, [7] per Bryson J).
Generally, technical legal words or expressions appearing in a Will must be given their technical legal meaning (Winter v Perratt (1843) 6 Man & G 314; 134 ER 914), particularly where a legal professional has prepared the Will.
The Court is directed by the words used and any admissible evidence. There can only ever be one correct construction. Courts, as the ultimate authority, apply a range of statutory, common law, linguistic and grammatical principles to reach that outcome. Yet, the process can be complex and often filled with exceptions and qualifications.
As the ultimate interpreter, a key rule is that the Court reads the Will as a whole before deciding the meaning of any disputed clause. Judges sometimes search for an underlying “scheme” across the document, looking for a pattern of intention and highlighting the importance of the Court’s role in the process.
Home-Made Wills
Special considerations apply to home-made Wills. Courts recognise that lay people draft without legal training, so the Court reads their words in that context. The High Court noted in Lewis v O’Loughlin, [1971] HCA 53; 125 CLR 320, that informal language should not defeat a clear intention. Informal language should not make a clear intention invalid. A clear intention should be preserved despite informal language. Imperfect drafting should also not defeat an otherwise clear intention. Underscoring the weight of the testator’s decisions in drafting a Will, as their intentions are of utmost significance.
As Robb J observed in Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685:
“The true way to construe a Will is to form an opinion apart from the decided cases. Then, determine whether these decisions require any modification of that opinion. Do not start by considering how far the Will in question resembles other wills upon which decisions have been given”: Re Sanford [1901] 1 Ch 939 at 941 (Joyce J).
That is particularly so where, as in Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932, the idiosyncratic language of a lay draughtsman has no conceptual connection with any understanding of the law of succession or the terminology of earlier Wills contemplated in the decided cases.
The right approach is to form an opinion on the Will’s meaning in its own terms, not by forcing analogies with previously decided cases.
The Role of a “Scheme” in Will Construction
When construing a Will, courts often ask whether the testator’s words reveal a “scheme” or overall disposition plan.
The “scheme” of a testator’s dispositions is the overall structure of their Will — essentially, the plan showing how property is to be divided after death. Courts use this scheme as a guide to interpret the testator’s true intentions, especially where wording is ambiguous or produces unusual results. By looking at the Will as a whole, including its provisions and clauses, the court can discern the testator’s intended distribution and give effect to their expressed or implied wishes.
As Bryson AJ explained in Muir v Winn [2009] NSWSC 857, if the wording of a Will is unambiguous, searching for a scheme may add little. However, identifying a broader pattern in the testator’s dispositions can be crucial if the language is unclear or yields unlikely results.
That said, looking for a scheme is not the first or overriding task in construction. The primary inquiry is always the testator’s intention. A scheme is one of the analytical tools a court may use.
- A scheme suggests some plan, design, or relationship between parts of the Will.
- It might be logical and carefully structured, or arbitrary and uneven.
- Some Wills contain an obvious plan; others may not.
Identifying a scheme can help resolve ambiguities. Where multiple readings are possible, a scheme may point to the construction most consistent with the testator’s overall plan.
However, this approach is practical when the Will is lengthy or contains multiple dispositions. In short wills — especially those just a few lines long — the brevity of wording may make it unrealistic to detect any meaningful scheme.
Key Point
The search for a scheme is not an end in itself. It is only a secondary aid to construction, deployed when the Will’s language is uncertain, and only to the extent it helps uncover what the testator truly intended.
Takeaway
Construction is about honouring intention—not perfection. Even when language is clumsy or incomplete, the Court will strive to give effect to what the testator most likely meant.
Rectification and Ademption: Principles in Succession Law
Rectification of Wills
Rectification is the process by which a court amends the text of a Will so that it gives effect to the will-maker’s actual intentions.
Under s 27 of the Succession Act 2006 (NSW), the Court may rectify a Will if it believes:
There has been a clerical error, or
The Will fails to carry out the testator’s instructions.
Applications generally must be brought within 12 months of death, although the Court has discretion to extend the time if necessary and if full distribution of the estate has not occurred.
Key principles include:
Standard of proof: The Court requires “clear and convincing proof” on the balance of probabilities (Reeves v Reeves [2024] NSWSC 134; Singh v Singh [2018]).
Relevant time: Assessment of the testator’s intention at the date they made their Will, not the date of death.
Instructions vs. intentions: Instructions are the wishes communicated by the testator, usually to a solicitor drafting the Will.
Intentions reflect what the testator wanted the Will to achieve when executed.
Rectification is only possible if the Will as executed diverges from those instructions and intentions.
The three key questions (Lockrey v Ferris [2011] NSWSC 179; 8 ASTLR 529):
- What were the testator’s intentions?
- Does the Will fail to carry them out?
- Was this failure due to a clerical error or a failure to follow instructions?
Rectification is not about rewriting imperfect Wills but correcting errors that prevent the testator’s genuine wishes from taking effect.
Ademption of Gifts
Ademption occurs when a gift in a Will fails because the subject matter no longer exists in the estate at the testator’s death. The term derives from the Latin ademptio, meaning “a taking away.”
In New South Wales, there are four key scenarios where a legacy or gift in a Will may be considered “adeemed” or extinguished:
Classic Ademption: If the specific property gifted in a Will is destroyed or transferred before the testator’s death, the gift fails, and the legacy is deemed to have been adeemed.
Satisfaction by Inter Vivos Gift: When a person, such as a parent, makes a substantial gift during their lifetime to someone they bequeath in their Will, this lifetime gift is considered a partial or complete satisfaction of the Will’s gift, effectively adeeming it.
Purpose-Related Ademption: If a Will stipulates a gift for a specific purpose and the donor makes a gift during their lifetime for that same purpose, the testamentary gift is adeemed, even if the donor isn’t directly related to the recipient.
Express Ademption: This occurs when a Will explicitly states that a prior gift made during lifetime should replace or cancel the testamentary gift, often with the donor’s clear intention to do so.
Distinct from these, the first scenario involves a physical change to the property, regardless of intent. In contrast, the others rely on the donor’s intentions and the relationship between the gifts. Special legal considerations apply if the donor is incapacitated at the time of making or modifying their Will.
As Lindsay J explained in Reynolds v Bonnici [2017] NSWSC 828, the classic form of ademption arises when a specific gift (e.g., “my house at 10 Smith Street”) is destroyed, sold, or otherwise ceases to be owned by the testator at the time of death. In that case, the gift fails to take effect.
Notable principles:
Ademption is objective: the will-maker’s intention is irrelevant (Re Morton VR 40 [1963]; Brown v Heffer (1967) 116 CLR 344).
Even if the Court can identify the proceeds of sale or substitute property, the beneficiary does not generally take them (Harrison v Jackson (1877); Fairweather v Fairweather[1944] HCA 11; 69 CLR 121; [1944] ALR 190).
The rule underscores the importance of distinguishing between specific gifts (which are vulnerable to ademption) and general gifts (that are not).
Takeaway
Both rectification and ademption show the tension in succession law between respecting the text of the Will and giving effect to the testator’s true intentions.
Rectification allows the Court to correct mistakes so that the Will achieves the testator’s intended purpose.
Ademption shows the limits of intention—if the subject matter no longer exists, the gift is gone, no matter what the testator may have wanted.
These doctrines underscore the importance of careful drafting and timely estate planning advice in fulfilling a person’s testamentary wishes.
Background
The late John Currie Docherty Hamilton, born in Greenock, Scotland 1946, emigrated to Australia with his family as a child. He worked as an ambulance officer and endured a life marked by tragedy: his wife and three of his four children predeceased him, and he himself had cancer, motor neurone disease, and ultimately a COVID-related infection. He died at the age of 71, leaving behind his surviving daughter, Terrie, and several grandchildren.
Family and Estate
Hamilton’s family history was complex. His brother Robert was closely involved in his life, and Robert’s estate was also before the Court. Terrie, the plaintiff, had cared for her father for years, often at the expense of her own employment and finances. She lived with him in the family homes at Allambie Heights and later Terrigal, contributing substantially to bills and upkeep.
At his death, Hamilton’s estate included the Terrigal property (valued at over $1m), modest bank accounts, a car, personal effects, and a significant interest in Robert’s residuary estate. The total value exceeded $2.45 million.
The Will
In 2019, Hamilton prepared a plain-language Will kit. While inexpensive, such kits often fail to ensure proper testamentary effect. His Will contained spelling errors, vague wording, and lacked an explicit residuary clause. In 2020, after making the Will, he sold his Allambie Heights home and purchased the Terrigal property.
Raising the key legal issue: did the sale cause the gift in the Will to adeem (fail), resulting in intestacy over his residence? Or could the Will be construed or rectified to reflect his intention that Terrie inherit his home, whatever property it might be at his death?
Court’s Reasoning
The Court emphasised long-standing principles:
Reading a Will as a whole, in its context.
With home-made Wills, misuse of language or drafting gaps should not defeat an otherwise clear intention.
Rectification under s 27 of the Succession Act 2006 (NSW) is possible where the Will fails to reflect instructions or contains a clerical error.
Here, the evidence of Hamilton’s conversations with Terrie in 2019 showed he clearly intended her to have his home. The Court rejected the argument that the sale of the Allambie Heights property caused ademption and intestacy. Instead, it found that the testamentary language, though rudimentary, carried a dispositive intent extending to the Terrigal property.
Outcome
The Court held that the Will, properly construed, gave Terrie the Terrigal property. Other proceedings, including family provision claims, remain pending but Will be shaped by this construction ruling.
Key Takeaway
The Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932 illustrates the risks associated with Will kits and the flexibility of construction and rectification principles in NSW succession law. Courts strive to uphold a testator’s true intention, particularly in the context of home-made documents. Still, the uncertainty and litigation costs highlight why professional estate planning advice remains critical.