Do As You Wish, Just Be Clear

Steven Rainoldi probably thought he was doing the right thing; he was diagnosed with terminal cancer so prepared a homemade will on 13 July 2006. He died on 8 April 2011, leaving his de facto wife, his young daughter and a son and daughter from a previous marriage. At the time of his death, Mr Rainoldi was operating an orchard in partnership with his de facto wife from their principal place of residence.

Unfortunately for Mr Rainoldi’s family, his will was not as clear as he had probably intended it to be. Five questions arose as to the will’s interpretation and the Administrator of Mr Rainoldi’s will, being his de facto wife, had to apply to the Supreme Court so that the document could be interpreted. Three of the questions were able to be resolved before the hearing but questions about the orchard partnership and the property remained.

Section 45 of the Administration Act 1903 (WA) authorises the Supreme Court to settle questions arising in any will or administration. There are four overriding principles which the Court applies:

  1. The Court’s object is to ascertain the testator’s intention as expressed in the will.
  2. The will in question must be read as a whole and in light of surrounding circumstances.
  3. The “armchair” principle applies in respect of considering the surrounding circumstances. This allows the Court to receive evidence and consider it as if sitting in the testator’s “armchair”.
  4. At first glance, words are to be given their ordinary meaning.

Section 26 of the Wills Act 1970 (WA) also details the general rules of construction in respect of wills. Such general rules include:

  • the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;
  • property that is the subject of a disposition, other than the exercise of a power of appointment, that is void or fails to take effect is to be included in any residuary disposition contained in the will; and
  • if any part of a disposition in fractional parts of the whole or of the residue of the estate of a testator fails, the part that fails accrues to the part that does not fail, and, if there is more than one part that does not fail, to all those parts proportionately. 

On 20 August 2015 the Court handed down its decision in respect of Mr Rainoldi’s will and (subject to any appeal) the Administrator can now go about finalising his estate, more than four years after Mr Rainoldi died. To view the RAINOLDI -v- RAINOLDI [2015] WASC 312 decision click here.

Clarity in your succession planning is crucial to ensure that your loved ones can promptly carry out your wishes. For more information on this update please contact Ann Spencer on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.