Interpreting a will: date of will or date of death?

Interpreting a will is an important part of the probate process. Usually (thankfully) there are no problems. However, poorly-drafted wills can cause delays, disputes and – worst of all – may not give effect to the testator’s wishes.

For example, does a gift to “my housekeeper” refer to the testator’s housekeeper when the will was executed, or the testator’s housekeeper at the date of death?

Avoid probate problems: be precise!

For anyone writing a will, the solution is simple: be precise! Taking the example above, if you wish to leave a gift to specific housekeeper, use his or her full name. If you wish to leave a gift to whomever may be your housekeeper at your date of death, leave a gift to “my housekeeper as at the date of my death”.

Clear wording should avoid any and all misunderstandings. But what happens if the wording isn’t clear?

Interpreting references to people

Regarding people, a gift is interpreted as at the date of the will, unless the wording suggests otherwise.

• a gift to “my housekeeper” will mean the housekeeper at the date of the will;
• a gift to “my housekeeper at the date of my death” will mean the housekeeper at the date of death.

Interpreting gifts of property

By contrast, a gift of property is usually interpreted as at the date of death, unless the wording suggests otherwise.

However, in this instance the word “my” usually suggests otherwise.

• a gift of “my piano” or “my car” will generally be taken to mean the piano or car at the date the will was made.
• if the testator leaves a gift of “my car”, but then sells the car and replaces it with another, it is likely that the gift will not take effect, because the first car is not owned by the testator at the date of death!

When writing a will, avoid these problems by being precise, such as “my Fiat Panda car, registration A123 BCD”, or “whatever car I may own at the date of my death”.

Understand the will before dealing with probate

Often, correctly interpreting a will is relatively easy.

However, if in doubt, consult a legal professional such as a probate solicitor. Being clear about the meaning of a will is a vital part of the probate process.