LARRY passes away leaving an estate worth $1.5 million.

Larry’s will leaves a large portion of his estate to “those of my grandchildren as shall survive me and attain the age of eighteen years”.

When Larry made his will, he only had one grandchild, aged two.

One year after Larry’s death, another grandchild, Mary is born.

Larry’s executor is unsure whether Mary is entitled to receive a share of the estate and seeks a ruling from the Supreme Court, by way of “judicial advice”.

The Court states that to interpret the will, the intention of the will-maker is paramount and that to understand the meaning of the language used in the will, the whole of the terms of the will must be considered.

If then, the terms of the will remain ambiguous, the Court can consider the surrounding circumstances.

The solicitor who prepared Larry’s will fifteen years ago, files an affidavit with the Court addressing the preparation of the will but unfortunately, the file, including the file notes, were destroyed after seven years of making the will and the solicitor could not recall Larry’s specific instructions.

The Court receives submissions from the other beneficiaries of the estate, to the effect that Mary should be excluded because she was not alive at Larry’s date of death and that because he had no relationship with her, it was not Larry’s intention that she should benefit from his estate.

The Court notes that Larry’s will refers to “grandchildren”, when at the time of making the will, he only had one grandchild.

The Court ultimately rules that Larry did not intend to exclude grandchildren born after his death.

However, the Court also rules that when the eldest grandchild attains the age of eighteen years, the “class closes” and the executor is able to distribute the estate so that any grandchildren born after that time will miss out.

Email Manny Wood, principal solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

By Manny WOOD, Solicitor