Lessons from Kean v Murphy [2012] NSWSC 948.

In August 2012, the Supreme Court of New South Wales was asked to interpret the meaning of a “homemade will”.

The deceased prepared her own will without any legal advice. Her will stated that her estate was to be “divided evenly among the children of my brothers….and my sister” and then went on to say that “all property, goods and money to be divided into three equal parts – then divided evenly amongst the groups of my three siblings.”

The Court was asked to consider whether the deceased’s estate was intended to be divided equally between all of the children of the three siblings named in the will or if it was to be divided into three equal parts, with each part then distributed equally between the children of her siblings.

When determining the true construction of the will, the Court stated that the will must be read as a whole and that the words it contained should be given their ordinary meaning. The Court can also take into account the facts known to the deceased at the date of writing her will.

It was the opinion of the Court that the second paragraph was intended to be a statement of how the first paragraph was intended to operate and that the estate was to be divided into three equal parts and then to further divide each part between the children of the three named siblings.

Comment – This case highlights the advantages of having a professionally prepared will. Had the deceased sought legal advice, this issue of uncertainty would have been avoided and the estate would have avoided considerable costs.