Court Interpretation and Rectification of Wills

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TRANSCRIPT

Court Interpretation and Rectification of Wills

When it comes to estate planning, we normally rely on writing a Will to determine how we want to leave our assets to our family, friends or even charities.

However, despite the best efforts of many lawyers, it is sometimes the case that a testator’s Will does not accurately reflect his or her wishes and intentions, or is drafted in a way that does not allow the wishes to be carried out from a practical perspective. There are various reasons for this, for example:

• There was not enough time to prepare a detailed Will or fine-tune it, for example when someone is having a Will made on his or her deathbed.
• The testator did not or could not articulate to the solicitor how he or she wanted the estate to be administered in practice.

What are common issues in the wording of a Will?

There are various issues that can arise when a Will is not drafted perfectly. Examples could include:

1. Some clauses could be drafted in an ambiguous or unclear manner. One of my recent cases involved a Will where the testator wanted his funeral to be conducted in accordance with traditional Chinese rituals, and any beneficiary that failed to fully perform those rituals would not inherit from the estate. The question, then, was what was the definition of “traditional Chinese rituals”, given that different parts of China have different practices?
2. Important clauses could have been omitted. One of the more common scenarios is that the Will does not contain what we call a residuary estate clause, which deals with everything else that is not specifically being bequeathed to certain people. Was this omission something that the testator fully intended?
3. Other times, certain clauses could potentially even be unenforceable. For instance, a testator might want to leave his house to his wife, but it turns out that the house was not in fact owned by him directly; rather it was owned by one of his companies, so gift the house under the Will would be ineffective. Or, using another example related to traditional Chinese practices, some Wills have clauses where a sum of money is earmarked for the purposes of worshipping ancestors of the family. These clauses are potentially invalid because often times one of two legal rules apply to these Wills, namely either the rule against purpose trusts, or the rule against perpetuities.

What can be done when the drafting is defective?

So, when faced with these situations, we can apply to the Court for two things, that is either to ask the Court to give an interpretation of what the Will is really meant to say, or to amend and rectify parts of the Will so that the testator’s intentions can be effectively carried out.

Of course, while the Court has the power to do these things, there are certain restrictions to its powers. For instance, the Court can only rectify a Will in one of two circumstances, which are either:

1. There has been a clerical error, although thankfully the Courts have given a reasonably wide interpretation as to what counts as clerical errors; or
2. There has been a failure by the solicitor to understand the testator’s instructions. This often requires producing evidence of the Will-making process, which in our experience might not be readily available.

Takeaways

Ultimately, these situations are instances where prevention is better than cure. Having well thought-out estate planning arrangements in place can often avoid the headaches that I’ve described today. This not only includes taking the time to have your Will properly and comprehensively drafted, but also to structure your assets in such a way that they can effectively be passed on to those who will inherit them. For this to happen, it is essential to have open and frank discussions with both your legal and non-legal advisors.

 

This video is for informational purposes only. Its contents do not constitute legal or professional advice.