Marks v Marks [2013] VSC 75

Pursuant to the terms of the deceased’s Will, the balance of his estate was to be held on trust for the benefit of his widow who was to receive “so much or the whole of the annual income therefore as she in her sole discretion may require.” Any remaining income, not retained by the estate was to be divided equally between the children of the deceased, who were not the children of the widow.

The Victorian Supreme Court was asked to interpret the correct meaning of the phrase “in her sole discretion may require”.

The widow claimed that the interpretation of this clause meant that she was entitled to the whole of the income at any time and for any purpose. The widow had indicated that she may use some of the income to financially assist her own children.

The children of the deceased however, claimed that the widow was only entitled to the income that she needed rather than wanted.

When interpreting the meaning of the deceased’s Will, not only must the Court must consider the Will as a whole but also the intentions of the deceased. In doing so the Court must consider surrounding circumstances. The deceased left a considerable estate. He had been married to the widow for 13 years but did not have children by her. The deceased was survived by two sons and a daughter.

In addition to his Will, the deceased left a number of memorandums outlining his thoughts and intentions regarding the distribution of his estate. It was clear that the deceased did in fact wish to provide for the widow and ensure that she received sufficient income for her needs. There was evidence that the deceased wished the widow to be in a position to continue living comfortably.

Similarly, there was also evidence that the deceased wished his own children to benefit from his estate. It appeared that the deceased had given careful consideration as to the terms of his Will and had discussed his testamentary intentions with the widow and his children during his lifetime.

After consideration of all matters and on interpretation of the word “require”, the Court held that “in her sole discretion may require” was not intended to mean that the widow was entitled to all of the income regardless of the widow’s need. The correct interpretation was to allow the widow to have as much of the income as she required to maintain her personal lifestyle and living expenses without exhausting all of her own income. The Court found that applying the money as extra income to assist her own children was not the intention of the deceased.

Comment: This case reflects the necessity for very careful and particular drafting, to avoid any ambiguity surrounding the terms of the Will.

This case also reflects the importance and ability of trustees and executors to seek advice as to the correct interpretation of a Will. If there is any ambiguity, the trustees have the right to seek advice from the Court to determine the correct interpretation to ensure that they are abiding by the terms of the trust.