The ‘curse’ of the homemade will – Rogers v Rogers Young [2016] WASC 208

In Rogers v Rogers Young [2016] WASC 208, Master Sanderson considered the proper construction of a ‘homemade’ will.  The judgment commences:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse.  Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better.  This case proves the point.  The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve.  But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation.  If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

The clauses that posed the construction issue were as follows:

“Residuary Estate

I give the residue of my estate to my daughter Alexandra Rogers Young, wholly.  If she or their incidental beneficiaries predecease me, I give the residue of my estate to my nieces and nephews, whether in uteri or born in equal shares.

Incidental Beneficiaries

If any of my children do not survive me then that benefit which they would have received shall be divided equally amongst such children of theirs as survive them.  If there are no such children, their share shall return the residuary estate.

Trust for Minors

The share of any beneficiary/ies who are under the age of 18 years shall be held in trust and be administered by the trustee for the purpose of support, welfare and education until he/she/they reach the age of 25.

If any minor beneficiary/ies should die prior to receiving all their share, then their share shall be held in trust and paid equally amongst their children.  If there are no such children, their share shall return to the residuary estate.”

Alexandra was 16 years of age at the time of the testator’s death, but turned 18 in October 2015.  The construction issue that needed to be resolved was whether, under these clauses of the will, she acquired a vested interest upon reaching the age of 18, or upon reaching the age of 25.  This was important because, under the rule in Saunders v Vautier (1841) 4 Beav 115, a beneficiary of full age who has an absolute vested and indefeasible interest may require the termination of a trust.

There was evidence that the testator had told the plaintiff (her executor) that she did not want Alexandra to inherit the estate until she was 25 years of age.  However, as Master Sanderson found, that is not the way the will reads.  The terms of the will were sufficiently clear that the whole of the estate was to pass to Alexandra, postponed only until she reached age 18.  The ‘Trust for Minors’ clause was found, as a matter of construction of the will, not to qualify or change the construction of the preceding clauses headed ‘Residuary Estate’ and ‘Incidental Beneficiaries’.  Accordingly, Alexandra was entitled to the estate, and to an order to vest the trust pursuant to the rule in Saunders v Vautier.

The judgment is accessible here.

A further useful authority, in respect of the construction of wills that have been prepared by a testator without professional knowledge or assistance, is Re Crocombe [1949] SASR 302, in which Mayo J summarised the following principles:

  • The testator is taken as having been inops consilii (without counsel), and on that ground a greater latitude is allowed in construction of legal terms: Lewis v Rees (1856) 3 K & J 132 at 147; 69 ER 1052 per Page Wood V-C.
  • It is not assumed that the testator had knowledge of, and relied upon, some principle of construction for the use of some word or phrase, or the omission of some explicit direction on provision.
  • If the testator is illiterate, rules of grammar and the usual meaning of technical language may be disregarded in construing the will.  However, words that have a clear and definite operation in the disposal of the testator’s property cannot be struck out: Hall v Warren (1861) 9 HLC 420 at 427; 11 ER 791, per Lord Campbell LC.
  • Imperfect powers of expression and of the use of language may be treated as a kind of illiteracy, for this purpose.  But words are not to be introduced, nor is a construction to be given to a clause that is contrary to what the plain words import, unless to do so is absolutely necessary because of an intention declared or evinced in some other part of the will: Eden v Wilson (1852) 4 HLC 257 at 284; 10 ER 461, per Lord St Leonards LC.