NSW Interpretation of words in a Will

[Roger Slimwood]

I am the executor of a Will. There is a sentence which I am uncertain about, as there is some ambiguity of interpretation. Would the learned members of this forum please kindly suggest the likely legal interpretation. The words are: (The names are changed).

"I direct that my estate be divided as follows:

50% of the estate to go to John Luke White and Mary Sarah White."

So, as we understand it, the above sentence could mean that John and Mary who are husband and wife, receive 25% each, or it could also mean that John and Mary are willed the 50% jointly. The assets is question are shares. Owning shares separately or jointly are quite different scenarios, and we need clarification on this point. There is one other beneficiary to the Will, and they receive the other 50% of the estate.

Thank you if you can help.

Roger

 

[Scruff]

Interpret it "literally" - which is that 50% goes to John as Mary as a single entity. That means there is no stipulation regarding an equal 25%/25% split.
So how John and Mary split that 50% would be up to them, not the executor.

 

[Roger Slimwood]

Thank you for your post. Indeed, you are correct, but, the asset in question are shares, and the probate lawyer will be approaching the share registries with instructions to either split them between two different HINs or to a single, new joint HIN. John and Mary will receive their shares as a fait accompli, but the form in which they receive them is all important, i.e. joint or separate. Are we understanding procedures correctly?

 

[Scruff]

It should simply be a matter of contacting John and Mary and letting them decide how they want it done. You then organise things according to their instructions. The point being that since the will doesn't stipulate, there's nothing to stop you from allowing John and Mary to decide for themselves how they want the distrubution done.

Things should only get complicated if you can't track them down for some reason.

 

[Roger Slimwood]

Thank you very much. That is just what we needed to know. We hadn't appreciated that the beneficiaries would be the deciding factor in this instance.

 

[Scruff]

No worries mate - and welcome to the forum.

(By the way, the use of fake names is pretty clever and very useful. It makes things a lot easier for people on here when it comes to how they word their answers. Any newbies reading this thread, please take note.)

 

[AdValorem]

Hi Roger

The probate lawyer will most likley instruct the share registry to transfer the shares to John and Mary jointly.

The reason I believe this is the correct approach is that under the will the shares were gifted to John and Mary as joint tenants and not as tenants in common.

Any other instructions to the registry will be breaching the terms of the will.

After the shares have been transferred to John and Mary they can decide how to deal with them.

Seeking accountant's advice is important.

Please share the outcome.

 

[Roger Slimwood]

Thank you for your considered opinion, AdValorum.

Since receiving the above replies to this forum, we contacted two solicitors on the interpretation of:

"50% of the estate to go to John Luke White and Mary Sarah White."

The first was a general solicitor, resident in our suburb. They said that both interpretaions are possible. i.e. that it could mean 25% each, or 50% jointly. The second party we approached was a probate solicitor, part of a large probate group of solicitors. They interpreted the statement to mean 25% to each of John and Mary White. We quote their reply: "Under paragraph x(x), 50% of the residue is gifted in equal shares to John White and Mary White (or 25% each). " We decided to go with this probate solicitor because they will be interpreting the Will to our preference.

We are not sure how this will play out. If the solicitor directs the Share Registries to split the share portfolio 25% each, who will dispute their interpretation?

We will share the outcome.