The ‘Curse’ Of The Homemade Will

In Rogers v Rogers Young [2016] WASC 208, Master Sanderson considered the proper construction of a ‘homemade’ will. The judgement commences:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

A further useful authority, in respect of the construction of wills that have been prepared by a testator without professional knowledge or assistance, is Re Crocombe [1949] SASR 302, in which Mayo J summarised the following principles:

• The testator is taken as having been inops consilii (without counsel), and on that ground a greater latitude is allowed in construction of legal terms: Lewis v Rees (1856) 3 K & J 132 at 147; 69 ER 1052 per Page Wood V-C

• It is not assumed that the testator had knowledge of, and relied upon, some principle of construction for the use of some word or phrase, or the omission of some explicit direction on provision.

• If the testator is illiterate, rules of grammar and the usual meaning of technical language may be disregarded in construing the will. However, words that have a clear and definite operation in the disposal of the testator’s property cannot be struck out: Hall v Warren (1861) 9 HLC 420 at 427; 11 ER 791, per Lord Campbell LC.

• Imperfect powers of expression and of the use of language may be treated as a kind of illiteracy, for this purpose. But words are not to be introduced, nor is a construction to be given to a clause that is contrary to what the plain words import, unless to do so is absolutely necessary because of an intention declared or evinced in some other part of the will: Eden v Wilson (1852) 4 HLC 257 at 284; 10 ER 461, per Lord St Leonards LC.

It may be then that using a homemade will is false economy and may not achieve the intended purpose, or if it does it may come at a cost which otherwise might have been avoided.

In order to get it right it is suggested that you see your solicitor.

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