The only asset of the Willmaker at the date of his death were two shares in a company. The most substantial asset of the company consisted of NSW farmland and was valued for probate purposes at $2 million. Located on the Property were two substantial dwellings – one a home in which the Willmaker had lived in for many years and a second dwelling in which Rae had resided in since 1984.
By his will the Willmaker appointed Ornella as his Executrix. Ornella was not related to the Willmaker but had been a great source of support to the Willmaker over many years. The 2009 will contained a number of typographical errors and inconsistent clauses. The main issue for the Court was how to construe the inconsistent clauses of the Will in an effort to try and give effect to the Willmaker’s wishes.
The Will contemplated the sale of real estate with a division of 7/10 of the real estate to one group of family members and a division of the remaining 3/10 to another group of family members on the one hand, but on the other hand specified that the sale of the real estate was not to include the two dwellings because the dwellings were to be gifted to Ornella. The dwellings could not be excised from the real estate without subdivision. However it was not permissible for the real estate to be subdivided. As a result the gifts to the real estate to the two family groups would be stymied.
An application was made to the Court to construe the Will. The Court found on a true construction of the Will, the Property must be sold and the proceeds of sale distributed in designated proportions and divided between family members named in the Will but as the subdivision was not permitted the gifts of the dwellings to Ornella failed.
Whilst the Willmaker’s desire may have been to “keep things simple” by preparing a Will in his own words unfortunately the outcome in this case was anything but simple because the family were forced to make an application to the Court to construe the terms of the Will.
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