In some cases, it is relatively easy to resolve the ambiguity, for example where a gift in a will fails because the subject matter of the will has been sold before the will maker died.
There are however other circumstances where gifts are ambiguous, and where the consequences can be quite significant.
Under section 33C of the Succession Act 1981 (Qld), a court can have regard to evidence including that of the will maker’s intention, to help interpret language used in a will if the language (or part of it) is meaningless or ambiguous on the face of the will or in light of the surrounding circumstances. That can allow the court to adopt the “armchair principle” whereby the court sits in the position of the will maker to take into account their “habits of speech and family, property, friends and acquaintances” to determine the meaning of the gift. Evidence of the will maker’s intention however is not admissible, so the evidence of the instructions given to the solicitor who drafted the will cannot be used to interpret the will, which is somewhat of an odd outcome.
These issues were considered in the recent Supreme Court decision of Dalziel v Gott & Ors [2024] QSC 276.
The background to that matter is that Mr Gott made a will in 2012 in which the following gift was included:
“I give and devise all my right, title and interest in and to house property “Florida”, 487 Main Western Road, Mt Tamborine (“my residence”) PROVIDED HOWEVER that should my residence have been sold during my lifetime then in lieu thereof…”
As it happened, Mr Gott owned adjoining lots, Lot 5 on which a house and garage were built, and Lot 6 on which gardens were built. The question was whether the reference to “house property “Florida” was a reference to both Lots 5 and 6, or whether it was a reference to only Lot 5 upon which the residence was constructed. If it referred to both lots, then obviously the gift of the residence was more valuable to the beneficiary of that gift, and there would be a corresponding reduction in the value of the remainder of the estate.
The court considered that there was ambiguity in the words used in light of the surrounding circumstances, and found that the will maker was referring to both Lots 5 and 6 in light of the surrounding circumstances, namely:
The connection between the improvements on Lots 5 and 6 and the will maker’s treatment of them as being part of his home called “Florida”; and In a prior will, the will maker had specifically identified both Lots 5 and 6 and referred to them as being at the address nominated in the will.
Of course, the decision demonstrates yet again the care that must be exercised by will makers to ensure that their wills are clear on their face. It also demonstrates why it is necessary to take complete instructions relating to all potential estate assets so as to resolve any conflict on the face of the will.
For estate planning and advice concerning wills including disputes, please contact our lawyers Peter Muller at peterm@qbmlaw.com.au, Jessica Murray at jessicam@qbmlaw.com or Megan Sarroff at megans@qbmlaw.com.au
