Law & Legal & Attorney Wills & trusts

Interpretation of Wills

 Wills - few loose words can create enormous difficulty.
 And of course no one can ask the deceased what was meant.
Recently part of the estate was left by will to 'my remaining relatives'.
 Who was to be included? Searches, inquiries and investigations in respect to kinsfolk and relations of the deceased had to be undertaken both in Australian and overseas.
 Very expensive! Private detectives were engaged.
 More expense! It appeared that the deceased never married and had no children but did have a sister who had moved oversees and had died some years previously.
 Could the children and grandchildren of that sister take part of the estate? There is an established principle in law that in order to save a gift from invalidity through vagueness expressed to be in favour of a class which could be so wide as to be incapable of sensible ascertainment the clause will be confined the class of relations who would take under the statutory order as if there had been an intestacy.
 Therefore that list of persons could be used to determine who might be included in the troublesome phrase.
The order of beneficiaries if the deceased had died without a will was firstly in statutory trust for the brothers and sisters of the whole blood of the intestate.
This meant that as the testator had left no husband or wife, no issue and no parents the estate was to be left in statutory trust for the brothers and sisters of the of the testator.
 Of course the deceased had no living brothers and sisters.
 Was a large part of the estate going to end up in government hands? The key was the phrase "statutory trust" which in law includes child.
 Section 61C of the Probate and Administration Act 1898 provides that instead of 'child' read 'brother' and 'sister' and, further, if the brother and sister had predeceased the deceased and left children those children got their parents share.
 Lawyers call this per stirpes.
The effect, therefore, was that the persons who would be entitled upon intestacy to the one half share of the estate of the deceased left to "my remaining relatives" were the child and grandchild of the deceased sister.


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