A legal amendment that was made during the COVID-19 pandemic allowing the witnessing of wills to take place via videoconferencing has officially expired. As of 31 January 2024, the...Continue reading
Words are the very stuff of law. Whilst in most instances the legal meaning of a word is the same as its meaning in everyday use (and the courts generally use the everyday meaning of a word when a variety of interpretations are possible), this is not always the case, as a family discovered recently. This is a particular problem when dealing with wills, because the person who wrote the will cannot clarify what they meant by their choice of words.
The case arose because the executors of a will needed guidance as to who was entitled to benefit from a trust created under it. The will used the term ‘my issue’, which in normal usage includes both children and stepchildren. The deceased man’s children disagreed, claiming that the strict legal interpretation of ‘issue’ – meaning children only, not stepchildren – applied.
The executors wisely asked the High Court to rule on the meaning of ‘issue’ in this context. After hearing extensive evidence about the circumstances of the family, the Court agreed that it was evident that the man had clearly meant to benefit both his children and his stepchildren.
However, the judge also commented that had the evidence of intention not been clear, the will could not have been corrected on the basis that the use of the word ‘issue’ was a clerical error. The use of an inappropriate legal term in a document prepared by a qualified professional could not be judged to be a clerical error.