What is a home made will? Generally this means a will you’ve prepared yourself, whether or not you use a “will kit”. In other words, the will has been prepared without the services of a lawyer and the benefit of individual legal advice.
This may seem an economical and convenient approach to will-making – which doesn’t require fees to a lawyer! But if the intentions are unclear the potential is high for it to be a false economy. Problems only come to light after the willmaker has gone and their estate must be finalised. Personal representatives responsible for administering the estate then have a difficult task.
Courts are unimpressed (see box) when they are called upon to interpret or construe a home made will gone wrong. This is referred to as a construction suit and it often involves rectification of the document according to law. It is a costly exercise that not only takes up court time but causes delay in finalising the estate at additional cost – with less for the beneficiaries. Below are instances where court proceedings were required to interpret home made wills.
1. A will with no beneficiaries
The executor sought directions from the Court for interpretation of the home made will. It had been prepared using a ‘will kit’ form.1
The problem was that the deceased had not written down on the form the names of whom they wanted to give their property to. It was not clear which individuals the deceased wanted to inherit. Nor was it clear who was to take the residue of their estate. The only name mentioned in the will was that of the person appointed as executor. The Court said the will was ‘..silent as to who is to benefit’. The question was who should inherit?
Even though the Court found the document to be a validly executed will it observed that the case ‘illustrates the difficulties occasioned by so-called ‘home made’ wills.’ No beneficiaries had been named in the will. It was found from the evidence that the deceased intended to leave her entire estate to the first defendant (and also the executor). But the problem was that the terms of the will did not state any benefit or gift to him, or anyone else. The will had no content, it made no dispositions to anyone even though it had been signed in front of witnesses – it was silent as to who was to inherit. In other words although the will was considered validly executed, the Court said it was meaningless because it did not dispose of the deceased’s property by naming anyone to inherit it.
Wills legislation permits use of extrinsic evidence in certain situations
The Court resolved the situation by construing the will according to established and widely agreed applicable legal principles under the provisions of section 28A of the Wills Act 1970 (WA). This section gives the Court power to examine extrinsic evidence in order to clarify a will in situations where it is found to be meaningless or ambiguous. The Court was satisfied that the deceased intended to leave her estate to the first defendant.
2. Home made will clauses – what was meant?
In another situation the deceased had left a substantial estate comprising different properties and a business.2 All four adult children were appointed co-executors and were beneficiaries. The problem was they did not agree on the correct interpretation of certain clauses in the will. One executor with a view of their meaning initiated Court proceedings for the proper interpretation of those clauses.
What was the testator’s intention?
The Court noted that “in construing a will the first duty is to ascertain if possible what the testator intended by his or her words, expressly or implicitly, and to give effect as far as possible to that declared intention.” But as the Court said, the ‘home made’ will was “opaque”.
Moreover the Court considered that from the way the will was drafted it was not possible to ascertain precisely what the testator had in mind. He had imposed conditions on the gifts he made which the Court said were ‘nothing more or less than an attempt to control the disposition’ and would be unworkable. It was decided that the proper way to interpret the will was that proposed by the defendants.
3. Interpretation of a home made will and codicil
A beneficiary sought directions from the Court for the proper interpretation of a home made will and codicil.. The Court commented that the will and codicil was “a particularly egregious example of the folly of home made wills.”3
Problems making interpretation difficult as to what the deceased intended included:
- Confusion regarding what the deceased intended. Matters not of a testamentary nature were included which were more like non-binding wishes instead of specifically disposing of property the deceased owned.
- No clear ‘giving-type’ statements as to disposal of property, the divestment of assets or sale of assets so as to show the testator’s intentions.
- Document structure, for example no numbering of paragraphs nor pages.
Was a trust intended?
The main issue was whether or not the deceased intended to create a trust. The beneficiary contended that it did. The Court said the wording showed that the deceased did not understand the nature of a trust, the obligations on a trustee and “how a will should be worded so that the creation of a trust was not in doubt.”
However it was held that a trust was created by the will and solely for the benefit of the two beneficiaries. Furthermore all of the deceased’s assets were settled into the trust, an express trust for sale in which the plaintiff and the second defendant had an absolute, vested and indefeasible interest in the proceeds.
4. Will kit – not all property owned by the deceased disposed of
In an another case the deceased had used a will kit style form. In an application for a grant of probate it was discovered from the statement of assets and liabilities that certain assets of the deceased were not disposed of by the deceased’s will. These assets included real property and cash in the bank. Words used in the will provided for a beneficiary “. .to be in charge of every item …not mentioned in this will” and to distribute them “after discussion”. This raised additional questions.
The issues for the Court were:
- whether the executor’s duties were limited to those assets named in the will;
- whether the beneficiary named (the deceased’s daughter) to receive the assets not expressly identified in the will (those not disposed of) was an executor according to the tenor of the will; and
- whether any assets were to be distributed in accordance with the intestacy provisions.
The legal principle of appointing an “executor according to the tenor” of the will applied
The Court said it is a principle of law that under certain circumstances a person can be appointed as an executor even if the term “executor” is not used in the will. An executor can be appointed expressly or by construction of the will taken as a whole. When an executor is appointed by construction is known as an “executor according to the tenor”.
The Court decided that:
- The grant of probate to the applicant executor be approved but limited to those assets specifically named in the will.
- A grant of probate of the deceased’s other items of personal property be made to the deceased’s daughter as executor according to the tenor.
- On the evidence there was a partial intestacy in respect of the deceased’s real property and her money in the bank – that is, the will did not cover the distribution of these items. These were to be distributed in accordance with the laws of intestacy. The Court held that the words used by the deceased “[s]he can then distribute things after discussion” did not impose a pre-condition.
5. Home made will with testamentary trusts but no beneficiaries named
The deceased left a substantial multi-million dollar estate. His last will was not drafted by lawyers.5 Two years prior he had engaged lawyers to prepare a draft will for him. But he decided he wanted to simplify it. Crossing out some bits he asked his non-lawyer daughter to type up a new will using the lawyers’ draft as a template, and some parts of it in his final will. After probate was granted application was made to the Court for construction of the will pursuant to the Court Rules and/or rectification under s 31 of the Wills Act 1997 (Vic). The Court found his final will was legally defective for a number of reasons and made rectification orders.
Testamentary trusts with no appointed beneficiaries
The biggest problem was that the will did not specify the names of the beneficiaries of the testamentary trusts created under the will. As a result the will failed to carry out the testator’s intentions. The Court found that while the term ‘Beneficiary’ appeared in numerous clauses it was not defined. Nor were there any provisions in the will specifying for whose benefit the testamentary trusts had been created. The daughter gave evidence that her failure to include the clause from the lawyers’ draft into the final will was her oversight, and as a result the Court said, she had not followed instructions that she was to use the draft as a template.
The Court said that in order for the will to carry out the deceased’s instructions, it is necessary that the will be rectified by writing into the will a new clause to reflect handwritten changes made by the deceased to the lawyers draft where he had stated the name of the primary trustee (the beneficiary) of each of the testamentary trusts.
Other problems concerned gifts of cash to grandchildren at different ages; the Court rectified the will to 18 years. Another issue was potential capital gains tax liability. The Court found that the deceased intended his children be treated equally in respect of capital gains tax. However there was not enough evidence on the extent of the liability before the Court to resolve that part of the application.
Will-making – worth seeking legal advice
Legal proceedings like those above run into many thousands of dollars. Way more than the cost of making a will with the assistance of a qualified lawyer specialising in wills and estate law. This can be money well spent to avoid costly mistakes needing court proceedings with uncertain outcomes later on at an already stressful time. To find a lawyer in your area search the ‘find-a-lawyer’ registers provided by the Law Societies in your state/territory here.
- Shulman v Donnelly  WASC 254
- Gray v Gray  WASC 387
- Thomas v Pearman  WASC 209
- In the Estate of Fairlie-Jones  SASC 59
- Re Hely; Application by Arbuthnot & Donoghue  VSC 614
21 July 2020
© BHS Legal