NSW Supreme Court looks to determine whether will reflects intentions of testator

Published 02 Dec 2013

A recent case brought to the New South Wales Supreme Court led officials to look into several matters to determine what parts of a will should be distributed to mentioned parties after the plaintiff argued the document may not have reflected what the testator wanted.

The court looked at the construction of the will, whether there is any evidence in it that suggests a foundation or trust should be set up, whether it reflects the intentions of the testator and if the the writer of the will had difficulty understanding the wants of the testator when the document was being drafted.

The issue started when Shirley Winifred Nepean died in September 2011, leaving behind an estate valued at $2.66 million. Ms Nepean appointed plaintiff Hendrik Jan Keulemans the executor and trustee of her will before she died, explicitly mentioning a parcel of land that should be given to her niece.

The will also stated that 10 per cent of her estate should be given to charities and her three nieces should split another 15 per cent of it. Another 45 per cent was to be given to a “foundation or trust” that would be established in her lifetime.

Defining “foundation or trust” in a contesting wills case

Ms Nepean also stated that if a foundation or trust was not established in her lifetime, then Dr Colin Ford and Mr Keulemans would be appointed to create one.

This one clause led to huge controversy over when and exactly what kind of foundation or trust would be created. The court looked into several parts of the will and addressed the construction and wording.

In the end, the judge found the plaintiff’s assertion that the will did not accurately reflect the testator’s wishes was incorrect.

“I am not satisfied that the will as it is literally expressed does not reflect the deceased’s intentions,” wrote NSW Supreme Court Justice Richard White.

“The will provides for the share of residue to be provided to a foundation or trust to be established by the trustees of the will, without any expressed qualification. As the deceased clearly had confidence in the Reverend Dr Ford and in Mr Keulemans, I am not persuaded that she intended to impose any limitation or qualification on the kind of foundation or trust that should be established.”

The case demonstrates how complex contesting wills cases can get, and how speaking with the right team of contesting wills lawyers can make all the difference.

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