Neil Jones, the testator, died in 2002 before s.33C of the Succession Act commenced on 1 April 2006. Three weeks before his death a solicitor wrote by hand his Will. Neither the solicitor nor the file was available to clarify the issues in dispute.
The testator died without issue and included in his Will the following:
- To hold all shares held by me at date of death for all my great nieces and nephews provided that none of same shall receive his or her share until he or she has attained the age of 21 years. particulars [sic] as follows as to 1/8 share thereof to each of the following grand children
Eight persons were then nominated. (underling added)
The confusion arose from the wording “all my great nieces and nephews” and the words “grand children”. The deceased had no grandchildren, not having any issue, and at the date of the testator’s death, he had 69 great nephews and great nieces. There was no satisfactory evidence to clarify the intention of the testator.
Hence, interpretation came down to the Will document and to focus on the meaning of the testator’s words and the scheme of the Will.
Douglas J found that the use of the words “as to 1/8 share thereof” was a reference back to “shares held by me at date of death”, and the only sensible meaning was that a one eighth share was to be left to the named eight beneficiaries. Critical in this interpretation was the emphasis on the word “thereof”. Otherwise, Douglas J found the words “for all my great nieces and nephews” as meaningless or surplusage. His Honour found if necessary the “rule of despair” would have been applied, namely that where two clauses or gifts in a Will are irreconcilable, the last prevails.
David Cormack – Brisbane Barrister & Mediator