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Wills and probate – Proper interpretation of Will – Turns on own facts

Wills and probate– Proper interpretation of Will – Turns on own

The Deed of Paksenarrion

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FAITHFULL -v- PINE [2012] WASC 75 

it is an interesting case where one Nigel David Wilkins drafted a will deed – you may call it as HOME-MADE will but not drafted by EXPERTS. it came before the court for interpretation .it was presented by the excutrix of the Will by name CHRISTINA MARY FAITHFULL.

The main dispute is between the first defendant – second wife of deceased and  other defendants first wife children of deceased .

The Will of the deceased is in the following terms:

  1. I give devise and bequeath unto

Jacqueline Hilda Pine, all monies and properties of whatever kind.

  1. Monies which are at present held in a Commonwealth Bank Cash

Management Trust, are to be used for the purchase of a home for
Jacqueline in either of the States of Western Australia or Tasmania.

  1. Upon the death of Jacqueline Hilda Pine, the above home and any property

of whatever kind remaining from my estate shall be divided equally and
shared by my sons Shane Paul Wilkins and Daniel Jason Wilkins.

The main question is that how to interpret the will deed. Because this will not ascertaining what are the monies and properties the deceased had and further this will deed not furnished the Bank Account of Common Wealth Bank and particulars amount lies in that bank.

1.This WILL DEED was executed on April 10th  , 1997.

2.On 28 January 1997, the deceased received from a divorce settlement the sum of $98,303.17.

3.On 26 september 1997 at 11 Durrant Avenue, Parmelia.which was in the sole name of the deceased, forms the bulk of his estate.

4.As at the date of death, there were other funds held in other bank accounts.

5.At the date of death of the deceased, he did not have any funds in the Commonwealth Bank Cash Management Trust.

The main purpose was that those should be distributed as per the terms of the Will Deed.

Mr. Nigel Davis Wilkins  main intention in executing this WILL DEED is to be carried out by spirit .

Under the first part of the Will Deed, he bequeathed all his monies and properties to the defendant No.1 by name Jacqueline Hilda Pine,

Under the second part of the Will Deed he directed to purchase a house for Jacqueline Hilda Pine at 

western Australia or Tasmania for her living. Limited Rights

Under the third part of the Will Deed he wished that after the death of Jacqueline Hilda Pine , his sons has to acquire and enjoy the above home and other remaining properties left by her. Vested Remainders.

Since no funds are traced out as said in the second part of the Will Deed , No house was purchased either at Western Australia or at Tasmania.

What to do and how to do .

No particulars of amounts and properties were given in the Will Deed to give Jacqueline Hilda Pine as per the first part of the Will Deed.

No amount was found in the Common Wealth Bank for purchasing a house in order to give Jacqueline Hilda Pine  for her enjoyment with limited rights.

So how the third part of the Will Deed comes in to play in future is questionable  hanging before the faces of the interesting parties.

Whether  a will deed  covers and carries what ever possessed and what were going to be

acquired till the death of executor of the Will Deed from the date of deed.

As all properties are acquired by the deceased only after the Execution of the Will Deed. There is no whisper about these Acquisition  and specifically nothing was mentioned about the future earnings and assets except second part house.

Whether the Bank accounts and property purchased at 11 Durrant Avenue, Parmelia comes under first part of the Will Deed or it should be considered as left intestate.

What is the Settled  law 

it is very interesting to note that their Lordships took much pains and quoted number of settled legal positions

It is the court duty to interpret the  Will Deed on it’s face wordings and spirit under it. unless and until some authoritative law and decisions contradicts the interpretation .

Home made Will Deeds is to be interpreted in less strictly than the Will Drafted by Experts.

Attachment should be given  to the language of the testator  and intention of the Testator.

consider whether the language is killing the spirit or main purpose of the Will Deed .

Defendant No.1 submitted that

As per the first part  , she is entitled for the  11 Durrant Avenue, Parmelia and bank balances other than common wealth bank  absolutely with out any obligations .As the deceased  give devise and bequeath unto all his monies and properties what ever kind to her. 

since no fund was traced out from common wealth bank, no house was purchased so the second and third parts of the will deed  becomes in operative on ground on its face. so nothing is left to the deceased first wife sons- other defendants.

Sons claimed that

since no particulars and description of the properties are given in the first part , she has no right to claim any thing  with absolute rights over the properties and amounts acquired after the Will Deed.

Even though no fund was traced out and no house was purchased after his death , the second and third parts does not become infructitious as no time was mentioned for purchasing the house as per the terms of second part. Instead of purchasing at Western Australia or Tasmanian  by drawing amount from common wealth bank , might have purchased  property 11 Durrant Avenue, Parmelia.

Whether the Will Deed is completed one and capable of implemented as per the terms of the will deed is another aspect. 

but the first part clearly and categorically stated  that

  1. I give devise and bequeath unto

Jacqueline Hilda Pine, all monies and properties of whatever kind.

so all the properties left by deceased by the time of his death would go to Defendant No.1.

First part becomes operative and second part and third part becomes in operative . Since the will deed first part not depending on the second part , like third part depending on the second part, The whole will does not become invalid. The invalid portions can be rejected and valid portions can be recognized as it is well established law  that while interpretate a will deed, the interpretation should not spoil the spirit of testator.

in this will deed , the main aim of the testator is to give all properties to his second wife. and only one property that is going to be purchased by a specified fund only goes to his sons of first wife after the death of his second wife that if any thing remains after her should go to them. HIS MAIN FOCUS AND CONCENTRATION WAS ON HER AND NOT ON THE SONS.  while declaring first part as valid and other parts as invalid does not thwart the spirit of the TESTATOR.

One has to consider all these aspects while interpretating the will deed.


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