Can an interpreter benefit under a will?

Interpreters, translators and will-making

Interpreters may be used by people from non-English speaking backgrounds to assist them provide valuable services.  Non-English speaking people or people who don’t have English as a first language may need the services of an interpreter or translator to help them understand in their language aspects of the will-making process.  Often this is done by a family member, or close friend. 

Where no-one suitable is close at hand, interpreter services may be needed. Such language services are widely provided by the Australian, state and territory governments, and mostly at no cost, (see further below).

The question is whether an interpreter or translator can take a gift of property made to them under a will where they have provided interpreter or translation services to the will-maker in regard to their will making.

Can an interpreter or translator benefit under a will?

In Queensland succession law prohibits a gift to an interpreter or translator if they were involved in providing services to someone for the purposes of making their will. 

See section 12 of the Succession Act 1981 –  ‘When an interpreter may benefit from a disposition’; click here.

Exceptions

 Exceptions to this rule under that section are when:

1. All persons who would benefit have consented in writing to the distribution of the gift to the interpreter/translator, and providing they have mental capacity at the time;
2. The Court is satisfied that the gift was made by the will-maker freely and voluntarily, and not under any suspicious circumstances.
3. The law does not prevent the interpreter or translator from receiving appropriate payment for their services to the will-maker in relation to the will.

Wills and succession legislation in the other states and territories don’t contain this type of provision on interpreters and translators.

Don’t delay making a will

Care needs to be taken when a will is made or signed in difficult circumstances.  For example when someone is close to death (the ‘death-bed’ situation) by a person from a non-English speaking background.

Command and understanding of the English language may have declined with advancing ill-health so an interpreter becomes necessary.

In addition there may be  questions about the will-maker’s mental capacity.   Validity of the will might be challenged on the basis that the will-maker did not know, understand and approve of the contents of the will.

Difficulties in interpreting and translating difficult legal concepts and consequences

Interpreting and translating does not always give rise to a corresponding precise meaning. 

In the context of leaving instructions by will, the difficulties were noted by one judge in a death-bed will challenge case that:

It has been said that ” interpreters  do not simply translate words; rather they translate concepts and ideas from one cultural context to the next”¹ …… All human communication is complex. Further complexities of translating the terms of a Will, and its meaning and effect, in a hospital setting, to a person who is ill, are obvious.²

Finding translating and interpreting services

A number of government and private agencies provide translating and interpreting services. 

The Australian Institute of Interpreters and Translators Inc at http://www.ausit.org has a searchable database of interpreters and translators for each state.

Individual state and territory governments have interpreting and translating services.   These are provided across all areas of government, agencies, private organisations of all kinds, local government and individuals.  For individuals needing help interpreting legal matters there are interpreters and similarly translators to assist with translating personal documents including legal documents.  Checking and proof-reading services are also available, charges may apply. To find such services go to your state or territories website and type “translator” or “interpreter” into the Search form.

Public Trustees have interpreter and translating services which can be used when dealing with them to make a will, power of attorney and related matters.

The Australian Government also offers interpreting services to the community through its Translating and Interpreting Service (TIS National), at https://www.tisnational.gov.au/.  TIS National is part of the Department of Immigration and Border Protection of the Australian Government. Click the above link to find out more.

1.  K Laster & V Taylor,  Interpreters  & the Legal System , (1994) 120, referred to in Barnett, Michael, ” Mind Your Language –  Interpreters  in Australian Immigration Proceedings ” [2006] UWSLawRw 5; (2006) 10(1), University of Western Sydney Law Review 109.
2.  Romascu v Manolache [2011] NSWSC 1362, at 219, per Hallen, AsJ.

B Stead, 22 September 2014, updated 1 August 2021

BHS Legal