The importance of a correctly drafted will

Rostron Carlyle has previously published articles outlining the pitfalls of do-it-yourself wills (access article here) and the benefits of incorporating testamentary discretionary trusts into wills (access article here).  A recent application before the Supreme Court of Queensland has addressed both of these issues and reinforced the importance of obtaining legal advice when preparing estate planning documents.

In Rhodes v Rhodes[1], the testator completed a pro forma will to dispose of his estate.  The pro forma document had various headings, including “Gifts”, “Residuary Estate” and “Incidental Beneficiaries”, but the testator had only included wording additional to the pro forma wording under the heading “Residuary Estate”.  The pro forma wording read:

I give the residue of my estate to such of the following beneficiary or beneficiaries as survive me and if more than one in equal shares

and was followed by the testator’s hand-written words as follows:

All my worldly goods to my ex wife who will distribute it to my children as she sees fit

At the outset, Henry J noted that the testator’s additional words were inserted under an inappropriate heading and in a manner that was not syntactically correct; however, his Honour was able to make sense of the structure of the testator’s intention notwithstanding these grammatical issues.  Less clear, and what his Honour determined to be the primary issue with respect to the application, was whether a testamentary trust was established by the use of the testator’s additional words or whether it was intended that his estate was to be gifted absolutely to his ex-wife.  The implications of this interpretation to the testator’s ex-wife and children were significant in respect of their entitlement to the estate assets.

By interpreting the language used in the testator’s minimal wording, including the imperative “will” (“who will distribute”) and the reference to the testator’s children, it was possible to distinguish previous cases[2] where courts had determined that similar wording amounted to an absolute gift rather than the creation of a trust.  It was on this basis that his Honour held the wording in the testator’s will amounted to a requirement, rather than merely a hope, that his ex-wife would distribute his estate to his children.  Moreover, on an examination of the elements required to establish a trust, it was confirmed that indeed a testamentary trust had been established rather than a condition imposed which was enforceable in equity.

This case serves as a timely reminder of the pitfalls of not obtaining proper advice and assistance when drafting a will.  Had the testator sought advice, a document could have been prepared that clarified the creation of the trust, the appointment of the ex-wife as trustee and the requirement for the ex-wife to distribute the estate to the testator’s children on terms determined by the testator.  Whilst at the time of writing this article no costs orders had been imposed by the Court, the estate, if not any beneficiaries individually, will likely be burdened with the cost of the legal action required to resolve the interpretation of the poorly drafted will.  Considerable stress to the ex-wife and beneficiaries, as well as time delays, could also have been avoided had the testator not prepared a pro forma will.

Rostron Carlyle’s estate planning lawyers discuss all aspects of your property ownership and familial circumstances to devise a clear estate plan that ensures minimal stress and burden to your loved ones.  We are experienced in drafting wills that incorporate testamentary discretionary trusts for the purpose of providing protection to your assets and taxation benefits to beneficiaries.  Don’t hesitate to contact one of our experienced team.


[1] Rhodes v Rhodes (as Executor of the Will of Cecil Ronald Rhodes) & Ors [2017] QSC 21

[2] Dean v Cole (1921) 30 CLR 1; O’Brien v Condon [1905] IR 51

clayton hellen

Clayton Hellen

Senior Associate

Brisbane 07 3009 8444

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