Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 2 September 2017.

Kimberley and William had been happily married for many years. Kimberley had two children to a previous relationship. William did not have any children of his own.

Kimberley and William made “mirror wills” leaving everything to each other with the survivor ultimately leaving everything to the survivor’s “children”.

Kimberley passed away in 2016 and pursuant to the terms of her will, William received the whole of her estate.

Two years later, William passes away.

William’s executor realises that he cannot give effect to the literal terms of William’s will, which leave his estate to his “children”, because he had no surviving biological children.

The executor is concerned that if he distributes William’s estate incorrectly, he could be held personally liable.

The executor receives legal advice that William’s estate may need to be distributed on the basis of an intestacy, meaning that for practical purposes, the terms of William’s will are meaningless and his estate should be administered as if he had no will at all.

If this were the case, William’s estate would go to his nieces and nephews equally, given that he had no surviving siblings. This means that Kimberley’s children would receive nothing from his estate.

The matter proceeds to court.

The court states that when interpreting a will, there is a presumption against intestacy.

The court also states that it is to have regard to the circumstances surrounding the execution of the will and in this case, the family background.

The court hears evidence that William regularly referred to Kimberley’s children as “my girls” and that they often referred to him as their “father”.

The court ultimately found that the word children did in fact include stepchildren and that Kimberley’s children are entitled to share the whole of William’s $400,000 estate, less legal costs.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.