This case is an appeal regarding a Will bequeathing a house as a gift to a friend. On the face of it, the clause was straight forward:  “I give my motor vehicle, my household chattels and my principal place of residence at my death to my friend…

However, a Will takes effect as if it had been made on the date of death and Master Sanderson initially ruled that “my principal place of residence at my death” meant the nursing home in which she was residing when she passed away, not her last place of residence prior to her moving to the nursing home, and that the gift failed, because the testatrix did not own her place in the nursing home.   The house in which she had resided prior to going to a nursing home therefore formed part of her residuary estate.

The Full Court on appeal overturned that decision.  The expression “I give my principal place of residence at my death to my friend…” was held to be a valid gift of property.  The Full Court found that the intention of the testatrix was to give her long-time friend her last principal place of residence, prior to moving to the nursing home, even though they were both residing in same nursing home at the date of death and neither needed to reside in the house.

The friend unfortunately passed away a year after probate was granted and before the case was decided, so the house ended up going to the friend’s beneficiaries instead.  The fight was between the residuary beneficiaries of the testatrix and the beneficiaries of the friend’s estate.

This case illustrates the importance of wording when drafting Wills and also the importance of updating Wills when life circumstances change.  A person making a will needs to make their intentions clear, but the problem can be trying to think of all the possibilities, and allowing those that are reasonably foreseeable.  In hindsight, two alternative clauses might have been:

  • If, at the date of my death, I own a house that is, or was, my principal place of residence, I give that house to my friend …
  • If, at the date of my death, my friend, … is living in the house that is, or was, my principal place of residence, I give that house  to her.

Given the same facts above, these clauses would have the opposite effect to the other.  Which would be your intention?

To ensure your Will does not fail to carry out your intentions, contact Michael Paterson & Associates.

Tags: , , , , , , ,