Construction of Wills

Abstract

Issues relating to construction of wills basically arise out of poor drafting. This is particularly a problem with ‘home-made’ wills, but unfortunately it is also not uncommon in the case of professionally drafted wills. Mellows (The Law of Succession, 5th edn at p. 128) makes the following statement about the rules of construction which have been developed by the courts in relation to wills:

‘These rules and principles are often set forth in a neat tabulated form and the impression is given that in any particular case a question of construction is solved by a logical application of these rules. Life is not like that… Before he [the judge] makes the decision what the effect will be. The rules of construction are so numerous that [the judge] ought to be able to find some which enable him to reach the conclusion which he wishes to reach…’

In the nineteenth century, judges tended to look rather unsympathetically upon badly drafted wills which raised questions as to what precisely was intended by the words of the will.