Whaley Estate Litigation

Testamentary and Trust Interpretations

Generally speaking any testamentary instrument or document, or inter vivos document, can be the subject of interpretation proceedings whereby a court application is brought to obtain the opinion, advice and direction of the court, to clarify ambiguities.

In many instances, the meaning and the terms of a Will can be unclear, and ambiguous, and the executors/ executrices/ personal representatives/ estate trustees require the advice and direction of the Court before proceeding to administer an estate.

Applications made are often referred to as being made to the Court of Construction where a Will will be interpreted. However, the court is limited to matters which fall within its jurisdiction, such as determining whether words were inserted in a Will by mistake.

Generally, costs of all parties to the judicial interpretation will be ordered to be paid out of the estate and those of the estate trustee paid on a solicitor/client basis, where the interpretation was necessary. In some interpretations, the conflict, difficult language or uncertainty, arises not necessarily from the terms of the Will itself, but due to the lack of duty of care owed by the solicitor who drafted the Will. In many cases, errors in drafting at the fault of the solicitor are pursued in negligence.

Similarly, trust interpretations may be necessary where the terms of a trust or the trusteeís powers are unclear or ambiguous. In that event, an interpretation application may similarly be brought before the Court for the court 's advice and direction.

Interpretations afford certainty to the estate trustee or the trustee in carrying out the terms of the Will or Trust document. It also provides them with protection from liability.

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.