All My Fishing Gear: Are Your Testamentary Intentions Clear?

When considering our Will, many of us are clear about how we want our assets to be distributed. We are clear about our legacy and which of our assets will benefit those nearest and dearest to us. However, the devil is in the detail. Correct drafting is paramount to ensure our wishes are clear, known and followed.

Recently, the Supreme Court of Queensland was required to examine the testamentary intentions of a retired commercial fisherman.[1]  A clause of the deceased’s Will gave to his son, ‘all my fishing gear owned by me at my death including my 37 foot fishing trawler’. The executors bought an application to the court to construe whether ‘fishing gear’ included the commercial fishing license held by the deceased. The executors were concerned about the commercial license being distributed correctly as it was of significant value.

When the court is required to consider the construction of a Will the ‘armchair principle’ applies. This means, the court will put itself in the position of the testator and consider all material facts and circumstances known to the testator, with reference to the words used in the Will. When the court is seated in the ‘armchair’ a fresh Will cannot be made merely because the court strongly suspects that the testator did not mean what he plainly said. The court is bound to consider the written intentions of the testator.

During the hearing, the court heard the deceased was a commercial fisherman who enjoyed fishing with his son, until his son moved away. He wanted to keep all his fishing ‘gear’ for his son, as he expected him to return home and work in the commercial fishing industry. He was the only child of the testator interested in commercial fishing and therefore, the deceased was clear he should receive all associated items. The court held the commercial license, the jet boat and the dinghies were to be left to the son and were all ‘fishing gear’.

While this outcome appears to be in line with the deceased’s wishes, the decision of the court comes at a cost. The costs of seeking the order from the court were paid by the estate. The result of this order was the residue of the estate, which was given to the children equally, was diminished.

While it is possible for applications to be made to the court when there is uncertainty in a Will, the process is often very costly and prolonged. To avoid such a situation, it is important to be clear in your intentions when you have your Will prepared.

Before you attend an appointment to prepare your Will, consider these key questions:

• What assets do I own?
• Do I want to leave specific gifts to my beneficiaries?
• What do I want these gifts to include?

If you do not already have a Will or you are looking to review your current estate planning documents, give our Wills and Estates team a call. Having clear estate planning documentation provides peace of mind for yourself and those nearest to you.

[1] Davies v Davies [2019] QSC 294.