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A DIY Will kit had the following text printed onto it:

RESIDUARY ESTATE

I give the residue of my estate to such of the following beneficiary or beneficiaries as survive me and if more than one in equal shares:

And then below, in the handwriting of the will-maker (“the testator”) was the following:

ALL MY WORLDLY GOODS TO MY EX WIFE WHO WILL DISTRIBUTE IT TO MY CHILDREN AS SHE SEES FIT.

The testator died, leaving his family asking questions.

The testator’s ex-wife argued that everything should pass to her as beneficiary, and that she would be free to do whatever she liked with the assets. She could keep them all to herself if she so chose. She said that the reference to the testator’s children was merely a wish or a hope, and not binding on her.

The Court thought otherwise.

The Court held that because the testator had used the words “who will distribute it to my children” (emphasis added) that it created an obligation or requirement upon the ex-wife to distribute it to his children. She did not have a choice.

It was also argued by her that the words “as she sees fit” meant she could choose not to ever see fit. Again the Court emphasized the word “will”. The Court held that the ex-wife was obliged to distribute to the children, however, she could distribute it in such proportions and at such times as she “sees fit”.

The Court said that the testator’s will created a testamentary trust. The testator’s ex wife was to hold his residuary estate upon trust for the benefit of his children. The ex wife was not a beneficiary, merely a trustee in charge of managing and distributing the estate to the testator’s children.

When people start asking questions about a person’s will after he or she has died, those questions usually need to be answered by the Court. This can be very expensive and time-consuming.

Wills need to be very clear, prepared in accordance with strict laws and should take into account an individual’s specific circumstances. Seek professional legal advice when preparing any legal document, including wills.

The case discussed above is Rhodes v Rhodes (as Executor of the Will of Cecil Ronald Rhodes) & Ors [2017] QSC 21

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