Does the court have the power to reinterpret a will, if parties dispute the will-maker’s real meaning?
Published 02 Nov 2016
A quickly written note or a confusing sentence can be all that is needed to throw doubt on the wishes of a deceased. During a will dispute, this could turn a case on its head. But the question remains: Who gets the last say?
In New South Wales, the prerogative for interpreting wills lies with the courts. Specifically, the Supreme Court of NSW interprets wills made or contested in NSW.
Both the executor and the party contesting a will can apply to the court to have it determine what the will-maker was attempting to say.
One example where this is useful is if the will-maker leaves a segment of their estate to a person who has the same name as another family member. In this case, the court would look at the available documentation and make a decision about who should get what.
How much influence does a court have?
While the court does have the ability to interpret a will, its common law power to fix a mistake in a will is limited. Yet, section 21 of the Succession Act 2006 (Act) does, in fact, give the courts the power to rectify a will. However, this “rectification” power can only be used if a wish or intention is worded in such a way that it is impossible to carry out the will-maker’s intention.
Is there anything I can do?
Even though wills and estate law is complex, this does not preclude you from having an impact. In fact, with the help of a contesting a will lawyer, you can ensure that a will is interpreted as close as possible to the deceased’s wishes.
Under section 32 of the Act, limited evidence can be used in a court hearing to ensure a true reconstruction of a will occurs. The evidence can be relating to the will-maker’s intentions, but it can only be used if the language in the will makes any part ambiguous.
Who should I turn to?
While there are a number of lawyers in Australia, only a solicitor from Gerard Malouf and Partners have the will dispute experience you need. With our compassionate and professional approach to will disputes, we can help you address the unfair distribution of assets.
If you would like to know more, talk to a representative of Gerard Malouf and Partners Compensation, Medical negligence and will dispute lawyers today.