WILL DRAFTING PROBLEMS

PROBLEMS WITH WILL DRAFTING

It is vital when drafting a will that the drafter uses language which reflects the wishes of the will maker.

A CASE STUDY: WRONG WORDING IN THE WILL

In the Will of Thomas Henry Finch (dec’d) [2018] QSC the will maker gave instructions that he wanted to give his “house” to his daughter. The inexperienced drafter used the following words: “ I give the following: any real property owned by me at the date of my death to my Daughter”.

The difficulty was that the will maker’s house (it was a substantial dwelling which consisted of two bedrooms, two bathrooms and included wraparound verandahs which cost in excess of $400,00 when purchased in in 2007, and was situated in a residential estate in a suburban street) was actually a relocatable home and as such it did not fit under the definition of real property (real property is “affixed” to land).

The intended gift to the daughter therefore failed.

This meant the will was challenged in court. The daughter was successful however such challenges are very expensive and time-consuming and often the costs come out of the estate.

it is vital that a will maker is given the correct advice so that the will does indeed reflect the will maker’s intentions.