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Growing Stronger Podcast Ep #22: The Importance of Punctuation

Posted on 18th November 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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Growing Stronger Podcast Ep 22 - The Importance of Punctuation

In episode 22 of our podcast, Growing Stronger, Tanya Chapman discusses what can go wrong with a homemade will, from giving away assets that aren’t technically yours, leaving assets out or forgetting to provide for assets you might acquire later, failing to appoint a backup executor, or having the will witnessed by the wrong person.

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Case: Jones v Robinson & Ors [2019] NSWSC 932; Marlow v Croft [2020] NSWSC 251

Note

  1. This is a brief summary of the topic and the case law covered in the episode and is not a full transcript of the recording.
  2. The case discussed in the episode is a NSW case, so what we’re discussing will be based on the law in NSW and is not intended to be taken to be applied Australia-wide.
  3. While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. For any matter we discuss, we summarise, skip over parts that may be too technical and only generalise. You should still see a solicitor for complete advice that relates directly to your particular situation.

SUMMARY

There’s nothing to say – in Australia at least – that you can’t write your own will. Sure, then you have to make sure you sign it correctly, but how hard can it be?

You write down who you want to be executor and you list who you want to get your things. Easy-peasy. No need to pay heaps of money to some greedy solicitor.

Well, actually, there are a lot of things that can go wrong with a homemade will. From giving away assets that aren’t technically yours, leaving assets out or forgetting to provide for assets you might acquire later, failing to appoint a backup executor, or having it witnessed by the wrong person.

But the cases we are looking at today really are just a case of bad drafting.

In the first case we look at, one paragraph, in particular, caused a lot of confusion and arguments partly because of lack of punctuation.

The paragraph:

If the villa hasn’t already been sold it goes to Lyn if it has been sold whatever money is left after the others get their share what I have in investments ¾ three quarts of money goes to Lynette Jones the rest goes to my niece Joy Ashley (full stop).

In the second case, a poorly drafted entry into a proforma will left the parties arguing over what the deceased had intended.

Thomas had written (paraphrasing only a little):

MY WIFE VIOLET MARLOW AND TO STAY AT the Blacktown property TILL SHE DIES THE HOUSE OR BELONGINGS NOT TO BE SOLD UNTIL THE DEATH OF MY WIFE VIOLET MARLOW ALSO ALL MONEY IN BANK GOES TO MY WIFE

The wording on the form went on to say:

But if he/she/they predecease me then I give the residue of my estate to…

MY CHILDREN MARK MARLOW, TRACY MARLOW, JOANNE ROE, DIVIDED EQUAL SHARE, IN THE EVENT ANY OF MY STATED CHILDREN PREDECEASE ME THEIR SHARE IS TO BE DIVIDED BETWEEN THEIR CHILDREN EQUAL SHARE.

Does the clause mean:

  1. That the Blacktown property forms part of the residue of the estate and that Violet receives it absolutely?
  2. That Violet receives a life estate in the Blacktown property and that on her death it is to be divided equally between Thomas’s children Mark, Tracy and Joanne?

If the property is sold:

  1. Is Violet entitled to the sale proceeds?
  2. Are Mark, Tracy and Joanne entitled to the proceeds?

You can listen to all Growing Stronger episodes below:

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