Interpreting a Will: description or condition?

In the recent Western Australian case of Blyth v Wilken [2015] WASC 486, the Court was required to interpret the Will of a deceased person to determine if his former de facto spouse was entitled to receive a gift left to her.

The deceased’s Will stated:

“I give devise and bequest the rest and residue of my real and personal estate … upon trust for my de facto wife Kathrine Mary Murray absolutely …”

At the time the deceased made the Will, he and Ms Murray were de facto partners. However, they then separated in 2011, 3 years before the deceased’s death.

The executors of the Will sought directions from the Court as to whether or not the gift was still valid and particularly,  if the reference to Ms Murray being the deceased’s de facto was merely descriptive or if the gift was dependent or conditional on that relationship existing.

Ms Murray argued that the reference to her being the deceased’s de facto was merely descriptive and that because she was specifically named, she should receive the gift.

The Court determined that it could not read the Will as Ms Murray contented, because that would ignore the reality of the relationship. The Court determined that it was most likely that the deceased made the gift of property to Ms Murray because she was his de facto spouse and therefore, once that relationship ceased to exist, the gift should fail.

Of course, no person can know for sure what the deceased intended. If he did intend Ms Murray to receive the gift, despite their separation, his wish has sadly not been fulfilled.

This case serves as an important reminder to seek expert legal advice when preparing a Will, to ensure that all parties are properly identified and to review and update your Will, if your personal circumstances change. If you do not, your wishes may not be effectively carried out when you die.

For more information or advice in relation to preparing or challenging a Will, please contact a member of our team today.

Authors

Kellie Keenan is a Director at Bennett & Philp Lawyers
Charlie Young is a Senior Associate at Bennett & Philp Lawyers

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