A recent case before the Supreme Court of Queensland has highlighted the challenges that can occur when a will is not properly drafted.
In the case of Flower v Allen (2014), the testator’s will required her son to transfer a property from his name to her’s, with the intention of holding it upon trust. Additionally, if the son completed the above property transfer within three months of the date of her death, he would be entitled to receive a further entitlement under the will (specifically, three parcels of land). If this condition was not met, the land would instead form part of the residue of the estate.
The deceased’s son transferred the property to his mother before her passing, and therefore this particular requirement was already met when the executor of the estate began the process of administering the estate.
In order to give effect to the provisions of the will, the executor of the estate attempted to transfer the property to the son. However, this process was interrupted by a number of inconsistencies in the will which prevented the transaction from taking place – specifically the fact that the required property transaction had already taken place.
To resolve this dispute, the Court was required to consider the testamentary intent of the deceased (that is, what she intended to express when she prepared the will). On that basis, the Court was able to look past the uncertainty and inconsistencies in the testamentary instrument in order to determine the most suitable approach in order to give effect to the testator’s intentions.
The Court held that the conditions imposed in the will had been met and that the son was entitled to the bequest of the three parcels of land in accordance with the will.
In order to ensure your will is properly drafted and does not contain uncertain or inconsistent provisions, it is important to consult with a wills and estates lawyer.