In brief: Does the term “nieces and nephews” in a will include your partner’s nieces and nephews? In a recent case, the Victoria Supreme Court[1] had to decide this very issue.

Facts

 The facts of the case were as follows:

  • Mr Mas died on 15 August 2014. His wife had died in 1995.
  • The deceased and his wife had no children.
  • The deceased’s will provided for the residue of his estate to be distributed to his nieces and nephews (or their children).
  • The deceased had no siblings and therefore no nieces and nephews by blood. He had nieces and nephews by affinity through his wife.

The Court

The Court, in determining will disputes, considers (amongst other matters):

  • The context of the will read as a whole and the surrounding circumstances.
  • To ascertain from the will the deceased’s intentions.
  • The ordinary meaning of the words according to the dictionary – the dictionary defined “niece” and “nephew” to include the son or daughter of your brother or sister in law.

In this case the Court considered the following facts to be relevant:

  • The deceased only has nieces and nephews from his wife’s brothers and sisters – he didn’t have any of his own brothers or sisters (and therefore no nieces and nephews from his own family).
  • The defendant describes the executor to the will as “my nephew” which indicates that he intended his wife’s nephews and nieces as his own.
  • The deceased made his will two months prior to his death and it can be inferred that he intended to distribute his estate in a particular manner which is why he went to the effort of making a will not long before his death.

Conclusion

 The Court held that the reference to “my nieces and nephews” in the will is a reference to his wife’s nieces and nephews.

Comment

It is always important to be as specific as possible when writing your will. This minimises the risk that after your death the will is interpreted differently to your intentions.

In this case, had the deceased had nieces and nephews from his own brothers and sisters, then the result may have been different.

 

 

[1] Weston v Donaldson [2018] VSC 405

 


About the Author

Catherine BallantyneCatherine Ballantyne, Special Counsel

Catherine Ballantyne advises across a broad range of industries including finance and professional services in relation to insolvency, dispute resolution and litigation.

She regularly advises both liquidators and individuals on all aspects of insolvency, including insolvent trading, phoenix activity, trusts, the Personal Property Securities Act, tracing claims, priorities and adjudicating on proofs of debt.