In NSW, for wills made after 1 March 2008, s32 of the Succession Act 2006 provides that in proceedings to construe a will extrinsic evidence of the will-maker’s intention is admissible to assist in the interpretation of the languages used in the will if the language makes the will or any part of the will:

• (a) meaningless, or

•         (b) ambiguous on the face of the will, or

• (c) ambiguous in the light of the surrounding circumstances.

Evidence of the testator’s intention is not admissible to establish any of the surrounding circumstances referred to in (c).

Importantly although there are no statutory time limits in applications for construction of a will the Court may decline to consider the claim following the distribution of the estate.

Common Law

A Court’s task in construing a will:

“… is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.” Fairbairn v Varvaressos, (2010) 78 NSWLR 577; [2010] NSWCA 234 at [19]

Using extrinsic evidence in construing a Will – known at common law as “the armchair rule” expressed in Allgood v Blake [1873] LR 8 Ex 160 at 162 – entitles the Court to consciously consider the testator’s point of view to clarify ambiguity.

Importantly unlike rectification, the court cannot re-write the will but can give meaning to the words in the will.

Background

In Hibbitt v Ziade [2022] NSWSC 904 the critical issue concerned the interpretation of the Gift in clause 21(b) of Anne Thorburn’s last will which included the gift of the residue to her trustee to pay debts and

‘hold my residence at …Tennyson Point together with all personal effects contained therein to [Mrs Hibbitt and Mr Hibbitt] or the survivor| of them in return for caring for my two cats.

Although the Court considered clause 21(b) ambiguous allowing recourse to evidence of the testator’s intentions under s 32 of the Succession Act 2006 it is a general principle of the construction of wills that

The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.

Fell v Fell (1922) 31 CLR 268 at 273

Absolute or Conditional gift

Was it an absolute gift, effective in favour of the plaintiffs immediately after the estate’s liabilities had been ascertained and paid?

Alternatively, was the gift deferred and conditional; effective following the death of the last of the two cats if the plaintiffs had cared for the cats during their lifetimes?

The Court applied the principle of construction in favour of an absolute gift on the solicitor’s contemporaneous file note.

The court considered a contemporaneous document to be more reliable than a recollection following the commencement of a dispute two years after the event.

Counsel for the defendant accepted the court’s decision to favour the contemporaneous file note over the later affidavit account.

The solicitor had asked “What if they don’t look after the cats? The testator replied “I have to trust them. I wanted to give Richard [the defendant] the home but he is not a cat person”.

The decision

The Court found that clause 21(b) was an absolute gift on the wording of the will alone. The gift is not conditional on the plaintiffs complying with their undertaking to look after the cats, although the Court had no reason to doubt that they fully intend to comply with that undertaking.