Disagreeing about terms of a Will

A man made a will in which he gave his wife the right to live in a property for ‘as long as she wishes’ and for the property to be sold and proceeds distributed when she ‘ceases to reside permanently’ in the property.

The will then said that once his wife ceases to reside permanently in the property that it should be sold and the proceeds split into thirds; two thirds to pass to the wife provided she survives him for 30 days, and the remaining third to be divided up between various persons and specified amounts paid (“the specific gifts”). The rest of the estate (“the residuary estate”) was to go to his wife, again, if she survives him for 30 days.

The proceeds of the sale of the property, after expenses, amounted to a little over $545,000. One third, from which the specific gifts were to be paid, equated to around $182,000, which exceeded the total value of the specific gifts.

The man made his will in September 2002 and died the following month. His wife continued to live in the property until her own death in 2014.
Following the death of the wife, there arose a question about what should happen to the property.

Two parties (the plaintiff and first defendant) said that the will made it clear that the property should be sold and the proceeds divided in paying the specific gifts and then the balance to form part of the wife’s estate.

Another party (the second defendant) said the specific gifts were only to be paid if the wife ‘ceased to use or reside’ in the property while she was alive. The second defendant said that this did not occur, as the wife died while residing in the property. They said that the will required the wife to voluntarily cease to use or reside in the property for the gifts to apply, and that death was involuntary and therefore not sufficient.

The Court rejected the second defendant’s argument. The Court referred to the text Williams on Wills which confirmed that if a condition about ceasing to reside was only against ceasing to reside voluntarily, then the will would need to include words to that effect; otherwise it would include ceasing to reside both voluntarily and involuntarily, such as from death.

The Court noted that there was nothing in the will which required a voluntary element and that the word ‘ceases’ would include the result of death.

As to the distribution of the proceeds of the sale of the property, the Court again agreed with the plaintiff and first defendant. The amount specified in the will (the one third of the proceeds of sale of the property) was to be used to pay the specific gifts and the remainder of that third was to form part of the residuary estate, and along with the other two thirds, then pass to the wife’s estate.
What can be learnt from this case is the importance of having clear and precise terms in your will. People may interpret your will differently and put forward opposing arguments, which might then require the Court’s assistance to determine.

If you are uncertain as to the terms of a will or believe a will is being interpreted incorrectly, you should legal advice as soon as possible.

[1] The case discussed is Blockley v Challis and anor [2017] VSC 15[1] Francis Barlow (ed.), Williams on Wills (9th ed, 2008), 388 [35.20]