NSW supreme court case examines construction of a will to determine judgment

Published 30 Sep 2013

When writing a will, even the placement of words, the omission or addition of letters and other seemingly trivial matters can lead to serious contesting wills disputes.

This was the case in one recent trial, in which it was up to the court to determine if a testamentary note had the appropriate express words that demonstrated the defendant was indeed meant to receive her share of the estate.

In the case, the defendant Sophia Hirsch claims that during either the construction or rectification of her cousin’s will, the testator made a mistake that resulted in a statement that read Ms Hirsch would “not receive” part of the estate. The defendant argued this contradicted other parts of the document that clearly suggested she was meant to receive a portion of the $1 million that was left behind.

Martha Amaryllis Terre-Blanche outlined in her will that she decided “long ago” to give all her property and investments to her cousin Sophia Hirsch, clearly saying Ms Hirsch’s name and address. It also bluntly states that Ms Hirsch would not receive any of the money only in the case that it could be taken from her by another cousin named Melita Pecherskaya. The will states that Ms Pecherskaya should not receive any funds whatsoever because of her behaviour and mistreatment of Ms Hirsch.

However, this stipulation caused certain vagaries that court had to clarify. This included how it would be determined that money could eventually make its way into the hands of Ms Pecherskaya.

Focusing on the construction of the will

In addition to the confusion over how to know whether money given to Ms Hirsch could be passed on to Ms Pecherskaya, the court also had to look into the defendant’s claim that there was a typographical error in the will. As written, the sentence in question reads “Sophia Hirsch will not be left my house and the bulk of my estate.”

But the justice found that this sentence contradicted the rest of the will, and that it was likely a mistake.

“The word “not” could be corrected to read “now” as a matter of construction and without the need for rectification if to do so were necessary to avoid absurdity or inconsistency,” the justice concluded.

“There is a plain indication that Sophia Hirsch is to be entitled to the residue of the estate.”

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