The Court of Construction

  • The Probate Court deals with questions of capacity, formality, execution and testamentary intention — these are matters that determine whether a will should be admitted to probate.
  • The Court of Construction deals with questions as to the meaning of a will that has been admitted to probate.
  • Historically probate was within the jurisdiction of the Ecclesiastical Courts and construction was within the jurisdiction of the Court of Chancery.
  • In England the Probate Court took over the jurisdiction of the Ecclesiastical Courts in the mid-1800s: Court of Probate Act 1857, 20 & 21 Vict, c 77.
    • This was adopted in New South Wales in the late-1800s: Probate Act 1890 (NSW).
    • The jurisdiction later became exercised by the Probate Division of the Supreme Court.
    • The jurisdiction is now exercised by the Probate List of the Equity Division of the Supreme Court of NSW.
  • The functions of the Court of Construction were always part of the equity jurisdiction in NSW; this became the Equity Division with the adoption of the judicature system: Supreme Court Act 1970 (NSW).
  • The distinction between the Probate Court and the Court of Construction is not always clearly maintained.
    • The Probate Court can construe documents and even had a duty to do so in determining whether a document ought to be admitted to probate: In the Estate of Fawcett [1941] P 85.
      • The Court of Construction cannot admit documents to probate.
  • Different rules of evidence apply to each court due to their different functions.
    • The Court of Construction can generally only look at the actual words used in light of the surrounding circumstances at the time the testator made the will.
    • The Probate Court may consider extrinsic evidence of the testator’s intentions and state of mind.
  • The Probate Court’s decision is not binding on the Court of Construction and vice versa: Re Hawksley’s Settlement [1934] Ch 384.
  • The Court of Construction cannot go behind the probate and engraft trusts upon the will: Allen v M’Pherson (1841) 1 HLC 190; 9 ER 727.
    • In the case of fraud a court of equity cannot make a beneficiary hold his or her share in the estate on trust for the next of kin — issues of fraud go to the question of the validity of the will and whether probate should have been granted in the first place.
  • The Supreme Court has power to determine all matters in one proceeding in the Equity Division, but the usual practice is to file a summons for construction in the Equity Division where a question of construction arises after a grant of probate.
    • The evidentiary problems in combining admission to probate and construction in the same proceedings usually make it appropriate to deal with the matters separately: Re Estate of Dippert [2001] NSWSC 167 [21].
    • Any question of construction that arises after a grant of probate must be the subject of separate proceedings: Pascoe v Tu (Unreported, Supreme Court of New South Wales, Windeyer J, 8 June 2004).

Framing questions for construction

  • Where an issue arises as to the meaning of words or phrases in a will, the executor will normally approach the court for construction of the disputed part of the will.
  • An originating process is required to state any question for which the court’s determination is sought: Uniform Civil Procedure Rules 2005 (NSW) 6.12(2).
  • Where a question contains a number of possible answers, these should be set out in the question — eg: ‘does “X” mean (1) “Y”, or (2) “Z”, or (3) “Y and Z”?’

When the will speaks from — property

  • A will with regard to real and personal property takes effect as if it had been executed immediately before the death of the testator: Succession Act 2006 (NSW) (‘Succession Act’) s 30(1).
    • This is subject to any contrary intention shown in the will: Succession Act s 30(2).
      • There is a rebuttable presumption that a testamentary disposition comprises such property of a particular description as exists at the testator’s death.
  • A generic description of property includes all property answering that description at the date of death, irrespective of whether some attribute (eg size of a coin collection) has changed since the date the will was made: Re Ord (1879) 12 Ch D 22.
  • A non-generic description can indicate a contrary intention so that only property answering the description at the date of the will passes under the gift (if still in existence).
    • The description must be sufficiently particular to override the presumption in s 30(1): Pohlner v Pfeiffer (1964) 112 CLR 52.
      • A description will be sufficient to override s 30(1) if it refers to property at the date of the will: Re Whitby [1924] Ch 210.
        • The use of the words ‘now’ and ‘at present’ are usually not enough, as they could be equally capable of referring to the date of death: Wagstaff v Wagstaff (1869) LR 8 Eq 229.

When the will speaks from — persons

  • A gift to a person in a will is a reference to a person who answers that description at the date of the will: Re Whorwood (1887) 34 Ch D 446.
    • This is the opposite of the rule with respect to property.
    • Example — a gift ‘to the husband of X’ is a gift to the person matching that description at the date of the will, even if X has remarried prior to the testator’s death: Jacques v Seton (1960) 103 CLR 571.
  • The presumption is rebuttable if it can be shown that the testator intended the beneficiary to be ascertained as at the date of death.
  • Where no person satisfies the description at the date of the will it is presumed that the gift was intended for the first person who meets that description — eg a gift to a spouse of a person unmarried at the date of the will: Raddford v Willis (1871) LR 7 Ch App 7.
  • Where there is a change in the law between the date of the will and the date of death, the law at the date of death applies.
    • A testator is presumed to know the law; if the will remains unaltered the testator is presumed to have intended the will to take effect according to the law at the date of death: Hasluck v Pedley (1874) LR 19 Eq 271.
    • Unless it is retrospective, a change in the law between death and the time a gift takes effect will not affect the gift — the law at date of death will apply; the testator is not to be regarded as having contemplated a change in the law after their death: Miller v Callender (Unreported, House of Lords, 28 January 1993).

Admissibility of extrinsic evidence and the armchair principle

  • If the intention is clear, extrinsic evidence is unnecessary.
  • Where the words are ambiguous, the court may place itself in the position of the testator at the time of making the will (the ‘armchair principle’): Hiscock v Hiscock (1839) 5 M & W 363; 151 ER 154.
  • If clear words are used and there is no ambiguity, the court will not apply the armchair principle merely if so doing would reveal a different meaning: Higgins v Dawson [1902] AC 1.
  • The armchair principle permits the court to have regard to the testator’s habits and knowledge of persons and things as they existed at the date of making the will: Charter v Charter (1874) LR 7 HL 364.
  • The armchair principle permits the court to consider, inter alia, the testator’s ignorance of the names of the members of their family, the degree of intimacy with them and whether the testator had legal advice: Biddlecomb v Biddlecomb (Unreported, New South Wales Supreme Court, Powell J, 1 July 1993).
  • Direct evidence of what the testator’s intentions actually were, such as statements as to what was intended to be left by will or to whom: National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207.
  • Difficulty may arise where the testator leaves a gift to a person whose exact description fits the will but the description is partly applicable to some other person.
    • There is a strong (but rebuttable) presumption that the testator intended the gift for the exact match: Biddlecomb v Biddlecomb (Unreported, New South Wales Supreme Court, Powell J, 1 July 1993).
    • As a general rule, extrinsic evidence outside of the armchair principle is not admissible except where there is an equivocal description: Hiscock v Hiscock (1839) 5 M & W 363; 151 ER 154.
      • An equivocal description occurs when the court applies the armchair principle and finds that the description is equally applicable to two or more persons or things: Charter v Charter (1874) LR 7 HL 364; Re Fleming [1963] VR 17.
      • In such cases extrinsic evidence is admissible to show what the testator actually meant.
      • An equivocal description exists even where party of the description is applicable to both and the remaining part to no one at all: Re Taylor (1886) 34 Ch D 255.
        • What remains of the description after removing the part that refers to no one must still be capable for applying with sufficient certainty to one of the competing persons or things: Re Edwards; Turner v Roberts [1981] VR 794.
      • There is no equivocal description if the beneficiary can be ascertained from the words or by use of the armchair principle.
    • These principles are confirmed by s 32 of the Succession Act:
      • In proceedings to construe a will, evidence (including of the testator’s intention) is admissible in the interpretation of language if the language makes the will or any part of it meaningless, prima facie ambiguous, or ambiguous in light of the surrounding circumstances.
        • Evidence of intention is not admissible to establish surrounding circumstances: s 32(2)
          • This does not prevent evidence that is otherwise admissible at law from being admissible in proceedings to construe a will: s 32(3).
            • This seems to preserve the right to admit evidence of direct intention where there is latent ambiguity such as equivocal description.
          • This will prevent the use of extrinsic evidence where the surrounding circumstances suggest an ambiguity, but the will on its face is unambiguous, as occurred in National Society for the Prevent of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207.
          • Where the meaning is clear but makes little legal sense the will is not ambiguous: Lawyer v Herd [2010] QSC 281.
    • Where there is prima facie ambiguity evidence may be admitted under the armchair principle.
  • In the absence of ambiguity or the will being meaningless there is no avenue to admit extrinsic evidence in order to construe a will: Riddell v Johnson [2013] NSWCA 293.

The testator’s intention

  • The primary duty of the Court of Construction is to ascertain the testator’s intention from the words of the will: Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18.
  • The principles applied to construction of documents in general are applicable to wills — the overriding objective is to ascertain the intention of the maker of the document: Marley v Rawlings [2014] 2 WLR 213 [19]–[23].
  • The modern approach to construction of wills is to place more emphasis on intention and less on rigid rules of construction: Perrin v Morgan [1943] AC 399.
  • The general principles of construction of wills have been set out in the High Court of Australia and Supreme Court of NSW: Fell v Fell (1922) 31 CLR 268, 272–276 (Isaacs J); Lockrey v Ferris [2011] NSWSC 179 [45]–[57]; NSW Trustee and Guardian v Attorney General (NSW) [2012] NSWSC 1282 [26]–[34].
  • The court cannot rewrite the will even if an irrational result follows from a true construction of the will, or the gift or will fails for uncertainty: Abbot v Middleton (1858) 7 HLC 68; 11 ER 28.
    • Conjecture as to intention is to be disregarded.
  • A disposition in a will is not to be avoided for uncertainty if the court can arrive at a reasonable degree of certainty: Adams v Jones (1852) 9 Hare 485; 68 ER 602.
    • In order to avoid a will it must be incapable of any clear meaning: Mason v Robinson (1825) 2 Sim & St 295, 298; 57 ER 359, 360.
  • A disposition will be void for uncertainty if it is utterly impossibly to put a meaning upon it: Re Roberts; Repington v Roberts-Gawen (1881) 19 Ch D 520, 529; Rennes v Death [2003] NSWSC 708 [8]; NSW Trustee and Guardian v Attorney General (NSW) [2012] NSWSC 1282 [30]–[31].

The will as a whole

  • The court will construe the will as a whole to determine the intention — this controls the meaning of the words used.
  • The first task is to look at the scheme that the testator lays out for dealing with their property in the will: Fairbairn v Varvaressos [2010] NSWCA 234.
  • The literal meaning of words will be disregarded if inconsistent with the intention of the testator as derived from the will as a whole: Towns v Wentworth (1858) 11 Moo PC 526; 14 ER 794.

The ordinary meaning rule

  • As a general rule the court will use the ordinary meaning of words used in a will unless the context suggests an intention of a different meaning: Abbot v Middleton (1858) 7 HLC 68; 11 ER 28.
  • If the ordinary meaning rule produces absurd or meaningless results, reference may be had to the armchair principle to ascertain the testator’s meaning.
    • Otherwise the fact that the ordinary meaning rule produces strange or capricious results does not justify departing from the rule.
  • If the words are clear and unambiguous it is not possible to give them a meaning they do not ordinarily bear in order to produce results that better align with conjecture as to what the testator’s intentions were: Abbot v Middleton (1858) 7 HLC 68; 11 ER 28.
  • Where a word has more than one ordinary meaning the court construes the will as a whole and may use the armchair principle to ascertain intention: Perrin v Morgan [1943] AC 399.

Technical words

  • Technical words are normally given their technical meaning unless the will as a whole evinces a different intention: Winter v Peratt (1843) 6 M & G 314; 134 ER 914.
  • The technical meaning will be applied even if the testator was mistaken as to the meaning: Re Cook [1948] Ch 212.

The dictionary principle

  • A testator may use a word in a particular way so as to fix the word with a special meaning — this can be either express or implied from the context of the will: Hill v Crook (1873) LR 6 HL 256; Re Rowlands [1973] VR 225.
  • Regard cannot be had to precedent for the meaning of a word as used in a different will, as it is inherently case-by-case: Lutheran Church v Farmer’s Co-operative Executors & Trustees Ltd (1970) 121 CLR 628.


  • Historically a Court of Construction could not take into account punctuation and similar markings on a will, but this is no longer the case: Houston v Byrnes [1918] AC 337.
  • The court may also have regard to erasures and like markings: Manning v Purcell (1855) 7 De GM & G 55; 44 ER 21.

The golden rule

  • A testator who goes to the trouble of making a will does not intend intestacy and the court should as far as possible lean to an interpretation that voids such a result: Re Harrison (1885) 30 Ch D 390.
  • If there are two interpretations leading to either an intestacy or a valid disposition, the court should construe the will to avoid intestacy: Fell v Fell (1922) 31 CLR 268.
    • There must be two interpretations open: Estate of Tkaczuk (2004) 90 SASR 515, 519.
  • The presumption against intestacy is not strong and the court should not misconstrue the language of the instrument in order to avoid intestacy: Re Wragg [1959] 1 WLR 922, 929 (Lord Evershed MR); Marks v Pope [2001] NSWSC 105 [17]; Arnott v Kiss [2014] NSWSC 1385 [63].

Ejusdem generis

  • Where a gift contains a specific description of property or enumerates specific items and this description or enumeration is followed by words of a general nature, then the general words are given a meaning referable to this earlier description.
    • This rule does not apply:
      • If the context of the will suggests that the general words should not be so limited: Re Kendall’s Trust (1851) 14 Beav 608; 51 ER 418.
      • If its application would lead to a partial intestacy: Re Hall [1918] VLR 448.
      • In reverse — where general words are followed by an enumeration of specified items: Re Fleetwood (1880) 15 Ch D 594.

The rule in Hearle v Hicks (1832) 8 Bing 475; 131 ER 476

  • If clear words in an earlier clause confer a gift on a beneficiary, ambiguous words in the same or a later clause will not cut down the gift unless the later clause evinces an intention to qualify the earlier gift.
    • An absolute gift to one’s spouse (without creating a life interest) followed by a gift of ‘what remains’ to the children will mean that if ‘what remains’ is uncertain then the spouse takes an absolute gift: Richie v Magree (1964) 114 CLR 173. See also Shaune v Bourgouin [2012] VSC 619.
      • If the testator’s intention is to benefit their children and spouse at the same time, then the first gift creates a life interest with remainder to the children: Re Carless (1911) 11 SR (NSW) 388.

The rule in Lassence v Tierney (1849) 1 Mac & G 351; 41 ER 379

  • Where there is an absolute gift to a beneficiary and a later clause in the will imposes a trust over that gift which then fails, the beneficiary takes the gift absolutely.
    • There must be a clear absolute gift in one clause for the rule to operate.

The rule in Jones v Westcombe (1711) 1 Prec Ch 316; 24 ER 149

  • The testator makes a gift to his wife for life and thereafter to their unborn child she is carrying, but if the child does not attain the age of 21 there is a gift over to another.
    • If the testator’s wife is not pregnant so that there is no child who could attain 21 years, then the gift over will still apply.
  • The rule requires a court to determine what the testator would have intended in unforeseen events, not what was intended in foreseen events by for which the testator did not provide: Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392.
  • To apply the rule the event that has occurred must be within the scope of the contingency provided for in the will and thus within the intention of the testator as can be implied from the will — it cannot be based upon speculation as to what the testator might have done had they foreseen what actually occurred: Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 [178].

_Falsa demonstratio no nocet, cum de acorpore constat

  • A false description does not affect the validity of the gift where it is described with sufficient certainty.
  • If with the assistance of admissible extrinsic evidence the court can identify the beneficiary and the gift the court will reject the false part of the description and give effect to the true part: Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392.
  • A totally false description will not suffice: Cowen v Truefitt [1899] 2 Ch 309.

The rule of despair

  • As a general rule between conflicting clauses the latter prevails over the former: Leicester v Biggs (1809) 2 Taunt 109; 127 ER 1017.
    • If the will as a whole demonstrates the testator intends the earlier clause to prevail it will: Re Kendall’s Trusts (1851) 14 Beav 608; 51 ER 418.
  • The rule is overriden by the presumption against intestacy: Piper v Piper (1886) 5 NZ LR 135–138.
  • If the testator has given the same property to two different persons the rule may not apply if the wil reveals an intention that both should share, in which case the court may hold that each beneficiary takes a half-share: Re Alexander’s Will Trusts [1949] 2 All ER 19.
  • Two inconsistent residuary gifts may lead the court to hold that the second gift was intended to catch lapsed shares of the earlier gift: Re Robertson [1966] VR 196.

Contingent and vested gifts

  • A gift may be vested in interest but the possession or enjoyment of the gift may be postponed.
  • A contingent gift is not vested until the contingency is fulfilled.
  • Intention to vest upon death or upon the happening of a contingency is a question of construction — a gift is presumed to be vested on death unless contrary intention is shown: Arnott v Kiss [2014] NSWSC 1385 [42]–[43].


  • The costs of a will construction dispute are testamentary expenses that in the ordinary course would be paid out of residue: Warton v Yeo [2015] NSWCA 115.
    • Costs may be denied to parties that take an adversarial stance.