For the avoidance of doubt: interpreting a will with reference to extrinsic evidence

The recent case of Middleton v Schofield (2022) NSWSC 1454 demonstrates the importance, once again, of being precise in a Will if disputes are to be avoided. This issue was primarily about the use of extrinsic information to interpret the meaning of a Will. Was the reference to a real property called ‘Caringa’ one property or three contiguous properties customarily known as Caringa?

The Will in question was dated 30 August 2018. The deceased died in March 2020, and interpretation proceedings commenced in December 2020. The judgment was not delivered until October 2022.

Will construction principles and extrinsic evidence

In interpreting an ambiguous Will, the Courts have to pay regard to established Will construction principles. One hundred years earlier, the High Court in Fell v Fell (1922) set out several principles, one of which was that the meaning of the Will must be discovered from the wording of the Will itself. Extrinsic evidence, such as statements about intentions, should only be referred to if necessary to aid interpretation (now embedded in statute in the Succession Act 2006). In this case, it was necessary.

The key lesson from this case is the importance of precision in order to minimise the possibility of disputes and the inevitable associated costs.

Contact our Wills and Will Contest Lawyers based in Sydney, NSW

If you wish to have a Will prepared or reviewed, or you are an interested party to a dispute, Szabo & Associates Solicitors can provide expert assistance and advice to clients in NSW and other States. Please contact us on 02 9281 5088 or use the online contact form.