O’Brien & Anor v Smith & Anor [2012] QSC 166

On 19 June 2012, the Queensland Supreme Court was asked to interpret a “home made will” prepared by the deceased in which he attempted to establish “...a trust or other entity to be set up by my Executors and Administrators and administered by them as they shall see fit”. The executors sought the guidance of the Court regarding three problems the clause caused:

  1. whether a valid trust was created under the Will
  2. whether the class of beneficiaries was certain
  3. whether the attempted trust failed for want of beneficiaries.  

The court held that the trust failed for want of beneficiaries. Read as a whole, the clause attempted to create a trust but did not describe or name the beneficiaries in any way.

Comment – This case highlights the delay and costs which are incurred when vague or uncertain terminology is used. This is not uncommon when a willmaker has written their own will. It was a rudimentary error that would have been overcome if the deceased willmaker had taken the trouble to have his will professionally prepared.