A recent New South Wales Supreme Court case has once again highlighted the critical importance of careful wording when drafting a will.
The will in question made a bequest to nieces and nephews of the deceased, then a clause of the will went on to say:
“It is my wish that the funds be used to assist in purchasing a property and assist in their education but does not include any HECS or equivalent educational debt.”
The Court was asked to decide the following question about the wording of this clause: were the gifts to the nieces and nephews to be used for no other purpose than property purchase and education? In other words, was the deceased’s “wish” binding on the executor of the will and the beneficiaries?
The Court decided that in using the expression “wish”, the deceased was not demanding compliance, but rather expressing a preference that was not binding on anyone.
This result may surprise some readers: surely if a person expresses a wish that their own estate be dealt with in a certain way, that wish should be respected and carried out?
The Court took the view, following some well-established principles from earlier cases, that the word “wish” can be contrasted with expressions like “I direct”, or ”I require”. If the deceased wanted to make it absolutely clear that there was to be no discretion in the way the bequest was to be spent, she should have used words like that instead of expressing a “wish”. Accordingly, the court decided that there was in fact no restriction on how the beneficiaries could spend their bequest.
You may or may not agree with the outcome of this case. In any event it highlights that, when it comes to drafting a will, it is best to leave it in the hands of experts who are aware of the critical impact that the choice of one word can have on the interpretation of your will.
At Matthews Folbigg Lawyers we have a dedicated will lawyers who can take your wishes for the allocation of your estate and draft them into a will that is clear, concise and unambiguous.
