In a Supreme Court of Queensland case, the Judge was asked to interpret the meaning of a clause in a Will that gave “all of the fishing gear” and a 37ft fishing trawler to the deceased’s son.
The question was whether the words “all of the fishing gear” also included the fishing boat licence, five dinghies and a jet boat.
It may sound like a straightforward question. However, the answer depended on the meaning of the words used in the Will and the circumstances surrounding the deceased’s property and intentions.
How does a Queensland court interpret the wording of a Will?
When a Court interprets a Will, it seeks to determine the meaning of the words used and give effect to the deceased’s intentions.
Queensland’s Succession Act 1981 (Qld) contains provisions dealing with the interpretation of Wills. In particular, section 33D of the Succession Act 1981 (Qld) addresses circumstances where language in a Will is meaningless or ambiguous, including where the wording becomes ambiguous in light of surrounding circumstances.
This means that the wording of a Will can matter enormously. A description that seems obvious to the person making the Will may not be clear to everyone after their death.
For example, a person may believe that a gift of a particular business, property or collection of assets clearly includes everything associated with it. A beneficiary or executor may later take a different view.
If the wording does not clearly resolve the issue, the parties may need to seek the Court’s assistance.
What happened in Davies v Davies & Anor (No 2)?
In Davies v Davies & Anor (No 2) [2019] QSC 294, the Court considered the meaning of a gift of “all of the fishing gear” together with a 37ft fishing trawler.
The dispute centred on whether the gift also included:
- the fishing boat licence;
- five dinghies; and
- a jet boat.
The case demonstrates why seemingly simple wording in a Will can create uncertainty after someone dies.
Did the fishing licence form part of the gift?
In considering the licence, the Court looked at how the fishing trawler could be used.
The licence was necessary if the beneficiary was to use the trawler to take fish for commercial purposes.
In those circumstances, it would be unlikely that the deceased intended to give the beneficiary the trawler but not the licence needed to use it for its commercial fishing purpose.
The Court therefore found that the beneficiary received the licence along with the fishing trawler and fishing gear.
Did the dinghies and jet boat form part of the gift?
The Court also considered the references to “tender boats” associated with the trawler.
The licence referred to “tender boats” for the trawler. In the circumstances of the case, the Court found that the dinghies and jet boat fell within that description.
As a result, the beneficiary received the dinghies and jet boat as part of the relevant gift.
What does this case mean for your Will?
The case highlights an important estate-planning lesson: the wording of a Will should describe gifts and assets as clearly and precisely as possible.
A person making a Will may know exactly what they mean when they describe a particular asset. After their death, however, the people administering the estate may not have the same understanding.
This can become particularly important when a gift involves:
- business assets;
- property and associated rights;
- vehicles, boats or other valuable equipment;
- collections or groups of assets;
- shares or investments;
- assets used together with another asset; or
- property that has associated licences, permits or other rights.
The more valuable or complex the asset, the more important it can be to consider exactly what the beneficiary is intended to receive.
Why can unclear Will wording lead to a dispute?
Unclear wording can create different interpretations among beneficiaries and executors.
For example, one beneficiary may believe that a gift includes everything associated with a particular asset. Another person may argue that the Will only gives the specific asset named in the document.
If the parties cannot resolve the disagreement, a Court application may become necessary.
These types of Court applications can be costly. In some circumstances, careful and unambiguous descriptions of the gifts beneficiaries are to receive may help avoid unnecessary uncertainty and disputes.
How can you make the wording of your Will clearer?
When preparing or reviewing your Will, consider whether each significant gift clearly identifies what you intend the beneficiary to receive.
Depending on your circumstances, this may involve:
- clearly identifying valuable assets;
- using accurate descriptions of property and other assets;
- considering whether associated items should form part of a gift;
- identifying licences, permits or other interests connected with an asset where relevant;
- reviewing your Will when you acquire or dispose of significant assets; and
- obtaining professional advice where your estate includes complex assets or ownership structures.
You should also avoid relying on descriptions that may make sense to you but could have different meanings to someone else.
If you are preparing or reviewing your Will, Wakerley Legal’s Wills & Estate Planning team can help you consider how your assets and wishes should be documented.
What should you consider when leaving a specific gift?
If you want to leave a particular asset to a beneficiary, consider whether the wording clearly answers the following questions:
- What exactly is being gifted?
- Does the gift include associated equipment or items?
- Are there licences, permits or rights connected with the asset?
- Could another person reasonably interpret the wording differently?
- Could the asset change before your death?
These questions will not apply in every estate. However, they can be useful when reviewing whether your Will accurately reflects your intentions.
What happens if a Will is unclear?
If the wording of a Will creates uncertainty about what the deceased intended, the executor or beneficiaries may need legal advice about how the provision should operate.
Queensland law allows the Court to consider certain circumstances when determining the meaning of language in a Will. Where the wording remains uncertain, the parties may need to ask the Court to determine its meaning.
This is one reason why clear Will drafting matters. Resolving an ambiguity after someone has died can take considerably more time and expense than addressing unclear wording when the Will is prepared.
Key takeaway: clear Will wording matters
The Davies v Davies & Anor (No 2) [2019] QSC 294 decision demonstrates that even a seemingly straightforward gift can raise questions about exactly what the deceased intended.
The Court found that the fishing licence, dinghies and jet boat formed part of the relevant gift in the circumstances of that case.
The broader lesson is that careful Will drafting can help reduce uncertainty about what beneficiaries are intended to receive.
If your estate includes valuable, specialised or complex assets, it is worth considering whether your Will describes those assets and any associated rights clearly.
Frequently asked questions about Will wording in Queensland
How does a Queensland court interpret a Will?
A Queensland court interprets a Will to determine the meaning of its provisions and give effect to the deceased’s intentions. The Court considers the language used in the Will and, where relevant, the circumstances surrounding the Will.
What happens if a Will is unclear?
If the wording of a Will creates uncertainty about what the deceased intended, the executor or beneficiaries may need legal advice. Depending on the circumstances, a Court application may be necessary to resolve the meaning of the Will.
Can a Will dispute arise because of unclear wording?
Yes. Unclear or ambiguous wording can lead beneficiaries or executors to disagree about what a particular gift means. If the disagreement cannot be resolved, the matter may require Court involvement.
Why is precise wording important in a Will?
Precise wording can help reduce uncertainty about the assets and property a beneficiary should receive. This can be particularly important when a gift involves valuable or complex assets, or items that have associated rights or equipment.
Can a Will include associated assets or rights?
It depends on the wording of the Will and the circumstances. The Davies v Davies & Anor (No 2) [2019] QSC 294 decision illustrates how the Court may need to consider whether associated property forms part of a particular gift.
How can I avoid disputes over my Will?
Careful drafting can help reduce uncertainty. Your Will should clearly identify significant gifts and consider whether associated assets, equipment, licences or rights should form part of those gifts. Regularly reviewing your Will can also help ensure it continues to reflect your intentions.
Get advice about your Will and estate planning
The wording of your Will can have important consequences for your beneficiaries after your death.
As Davies v Davies & Anor (No 2) [2019] QSC 294 demonstrates, even a relatively simple description of a gift can create questions about what the deceased intended.
Careful drafting can help ensure your wishes are expressed as clearly as possible and reduce the risk of uncertainty later.
Wakerley Legal’s Wills & Estate Planning team can assist with preparing and reviewing Wills and broader estate planning arrangements.
If you would like advice about your Will or estate plan, contact Wakerley Legal to discuss your circumstances.
Case reference: Davies v Davies & Anor (No 2) [2019] QSC 294.