Ambiguity in Wills: A Guide

11^th November, 2024

When it comes to estate planning, one of the most important documents you’ll create is your Will. It ensures that your assets are distributed according to your wishes after you pass away. However, a common issue many people overlook is the potential for ambiguity in the language of a Will. If a Will is unclear or open to interpretation, it can lead to disputes, confusion, and even costly court proceedings.

So, how can you avoid these problems? Let’s dive into the common pitfalls of ambiguous Wills and what you can do to ensure your intentions are crystal clear.

Common Sources of Ambiguity in Wills

Ambiguity often arises from the way a Will is written. Even a slight misstep in phrasing can lead to confusion about who should receive what. Some examples include:

1. Unclear Gift Descriptions: If you bequeath property but don’t specify what happens if it’s sold before your death, this could create uncertainty. Similarly, vague terms like “all my belongings” can leave room for interpretation. Which assets fall under that category?
2. Joint Assets: Many people mistakenly try to gift assets that are jointly owned with someone else. Since joint assets pass to the surviving joint owner upon death, they cannot be included in a Will unless specific provisions are made.
3. Vague Terms: Words like “real and personal property” can be open to multiple interpretations. For example, if a Will mentions “plant and machinery” on a farm, does this include livestock or only physical equipment? Such vague wording can lead to disputes over which assets are included in a gift.

On the other hand, being overly specific in your Will can also lead to issues. Circumstances change over time, and what you own today might not be the same years from now. For example, if you state that you wish for your “red Camry” to be left to your eldest child, but you later sell the car, this can create confusion and potentially cause disputes. To avoid this, consider using more general language such as “the car that is in my name” and ensure your Will is updated periodically to reflect any changes in your assets.

What Happens When a Will Is Unclear?

If a Will is unclear or doesn’t say exactly what the person wanted, the executor (the person in charge of carrying out the Will) may need to ask the court to step in. This can happen if the Will is open to different interpretations, which could lead to delays or even legal disputes.

In some cases, if the court cannot figure out what the person who wrote the Will (the testator) really intended, parts of the Will may not be honoured. When this happens, the estate might be divided up according to the laws of intestacy, which means the assets could go to people you didn’t plan for—like a separated spouse or distant relatives.

How Do Courts Deal with Ambiguity in Wills?

In NSW, if the Will is unclear, the court will try to figure out the person’s wishes by looking at the entire Will and any other relevant information, such as notes or conversations with the person. The court won’t change the meaning of the Will—but it will attempt to understand what the person original intentions.

If the court still can’t determine the person’s intentions, the gift might fail, and the estate will be divided according to the default rules of inheritance.

How to Avoid Ambiguity in Wills

The best way to avoid ambiguity and potential disputes is by having your Will drafted by an experienced estate planning lawyer. A lawyer with expertise in this area will know how to phrase your wishes clearly, structure your gifts, and avoid common pitfalls. They will also ensure that any jointly owned assets are properly dealt with, preventing future complications.

Moreover, a lawyer will ensure your Will is properly executed and that all relevant documentation is in place. This includes comprehensive file notes, which can provide evidence of your intentions if your Will is ever challenged.

Be Prepared for Your Estate Planning Appointment

When preparing for your estate planning appointment, it’s helpful to:

• List all your assets: Be clear about what you own and who you want to receive each item or asset.
• Think about specific bequests: If you want to leave particular items, such as a family heirloom or a piece of art, make sure you specify this clearly.
• Consider contingencies: Think about what should happen if your intended beneficiary is no longer alive or if assets are sold before your death.
• Discuss any complex family dynamics: If there are any special circumstances, such as estranged relationships, it’s important to address these with your lawyer.

By taking these steps, you’ll help ensure that your Will reflects your true intentions and avoids unnecessary disputes later down the track.

How We Can Help

At Castrikum Adams Legal, we specialise in estate planning and Will drafting. Our experienced team can help you create a clear and legally sound Will, ensuring your wishes are properly documented and that your loved ones are taken care of. Contact us today on (02) 66 871167 to schedule an estate planning consultation and take the first step towards peace of mind for you and your family.