Sarich v Sarich [2017] WASC 222

The recent decision of Sarich v Sarich from the Supreme Court of Western Australia again shows that a lack of clear drafting and legal advice in a Will can result in unintended consequences on the beneficiaries of the estate. The executor sought directions from the Supreme Court as to the proper interpretation of the Will as to its proper meaning. The consequence was that the particular clause in dispute was considered void and where no other clause in the Will dealt with the asset in contention, the rules of intestacy applied.

The Will

The deceased’s last Will and testament contained a clause where a farmland property in Caversham was to be given in the following manner:

(a)      The house and front acreage (3 acres) to be given to one of the sons; and

(b)     The balance of the property (7 acres) (which was a clearly defined vineyard) to that son and other children and grandchildren.

One of the beneficiaries questioned the validity on the clause in that it’s terms were uncertain and that it offended section 135 of the Planning and Development Act 2005 (WA) (PD Act).

The decision

The Court determined that the clause was not void for its uncertainty but due to the operation of section 135 of the PD Act.

The Court decided that the intention of the deceased was clear and that the interpretation of the will was sufficient to determine the deceased wishes. The house and front acreage was only 2.5 acres and was described in the Will as 3 acres, whereby the balance of the property was almost exactly 7 acres as described in the Will. It was submitted by a beneficiary that the understatement of the front portion of the property (2.5 acres not 3 acres) rendered the clause uncertain, but the Court determined otherwise and the exactness of the balance of the property helped clarify the intention.

However, section 135 of the PD Act provides that a person is not to subdivide or amalgamate any lot without the approval of the Commission. The question was whether the expression ‘subdivide any lot’ was a reference to the formal act of subdivision by transfer or conveyance or to a reference of any act to have the practical effect of creating an existing lot two or more smaller defined portions of land. The decision of Perpetual Trustees WA Ltd v Riverwest [2004] WASC 81 provided that it was the later and that the clause in the Will attempting to create two separate lots out of the property was void as it was in contravention of section 135 of the PD Act.

To consider

When drafting a Will, it’s important to use clear and unambiguous language to ensure that the executor can easily understand your intention and wishes.  The consequences of unclear terms may be that your executor is required to bring an application to the Supreme Court for directions or that the unclear clause is void for its uncertainty.

More information? To find out more, give us a call on 1300 023 782 or email team@cdrta.com.au.

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Craig is the principal consultant of C&D Restructure and Taxation Advisory and has been working in the industry since 1999. Having established C&D Commercial Partners in 2015 the precursor to the current business.

Post Author: Craig Dangar

Craig is the principal consultant of C&D Restructure and Taxation Advisory and has been working in the industry since 1999. Having established C&D Commercial Partners in 2015 the precursor to the current business.

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