Ambiguous Wills Are a Recipe for Strife – But the Law Can Bring Certainty

Any ambiguity in your will creates a risk of strife amongst your loved ones after you are gone and that is one good reason why professional drafting is so important. As a High Court case showed, however, judges are adept at resolving uncertainty and discerning where a will writer’s true intentions lay.

By his will, a man bequeathed a recently built bungalow to his partner of many years. Attached to the will was a plan with an area shaded in red which purported to delineate the extent of the property. The shaded area encompassed the property’s walled garden. Crucially, however, a parking and turning area – the disputed land – which lay just beyond the wall was left unshaded.

His partner launched proceedings, asserting that he nevertheless intended to leave her the disputed land. Her claim was disputed by the man’s son, who was entitled to his residuary estate. He contended that the plan was entirely clear and excluded the disputed land from the partner’s inheritance.

Ruling on the matter, the High Court found that there was a conflict between the plan and the written description of the property in the will. Given that ambiguity, it was legitimate to consider extraneous evidence as to the man’s intentions. The question was what an objective person, in the position of the will writer at the moment of his death, would have considered that he was giving.

Resolving the issue in the partner’s favour, the Court found that, in the light of the property’s planning history, its physical features and other factors, a reasonable observer would consider that the disputed land formed part of the man’s intended bequest to her. That interpretation of the will accorded with binding assurances that he had given her prior to his death.

The Court granted a formal declaration that the bequest to the partner included the disputed land. It was not satisfied that her inheritance extended to part of a driveway giving access to the property. It ruled, however, that the man had intended to bequeath her a pedestrian and vehicular right of way over the driveway for all purposes.