What Did He Mean? What Did He Say? Interpretation Issues

November 19, 2021 Paul Emile Trudelle Wills Tags: , , , 0 Comments

The will of Dawood Moola was recently before the court for interpretation.

Mr. Moola (“the deceased”) died on August 2013. He died without a spouse or children. He was predeceased by his parents. He had 9 siblings: 5 of whom survived him, and 4 of whom predeceased him. Through his 9 siblings, he had 36 nieces and nephews.

The deceased died leaving a will. The will appears to be a “stationer’s will”: a preprinted will with certain blanks to be filled in by the testator. The residual clause of the will provided as follows (handwriting in italics, square brackets indicating possible symbols and punctuation):

I Give Devise and Bequeath all of my Real and Personal Estate of which I may die possessed in the manner following, that is to say: TO MY BROTHERS[‘][&] SISTER[‘]S LATE BROTHERS [&] SISTERS NEPHEWS [&] NIECES … .

The estate trustee applied to the court for directions with respect to the interpretation of this paragraph. The estate trustee submitted that there were at least 3 possible interpretations:

  1. Estate is to be divided into 9 shares, with one share going to each of the 5 surviving siblings, and one share divided amongst the children of each predeceased sibling;
  2. Estate divided into 45 shares, with one share going to each surviving sibling (5), one share to the estate of each predeceased sibling (4), and one share to each niece and nephew (36); or
  3. Estate divided into 41 shares, with one share going to each surviving sibling (5), and one share to each niece and nephew (36).

The court characterized the question as being whether the deceased intended a per capita distribution (equally to each sibling, niece and nephew), or a per stirpes distribution (equal to each branch of the family, with the children of a deceased sibling taking that share).

The court ultimately found that interpretation #1 was appropriate. In reaching this conclusion, the court noted that the “general rule” is to infer that the testator intends equality in distributions, and thus the court applies a presumption of per capita distributions when interpreting wills. However, this general rule can “yield”, depending on the circumstances. Where the distributions are to family members, a per stirpes distribution is usually found.

The court’s conclusion was supported by the “armchair rule evidence” to the effect that the deceased was devoted to his brothers and sisters, and their families. The court held that the wording of the will suggested that the deceased “was considering beneficiaries not so much as individuals but by households”.

The size of the estate is not clear from the reported decision. However, the judge noted that the deceased lived modestly and was conservative with his spending. However, he was very generous with his family, gifting and loaning “large sums” of money to family members. Large sums of money would likely have been necessary to bring the application for interpretation: all beneficiaries or potential beneficiaries were put on notice of the proceeding. Most lived in South Africa.

Alternate titles to today’s blog:

  • “Once Again, A Handwritten Will Ends Up In Court for Interpretation”
  • “How NOT to Save Money: Make Your Own Will”
  • “Punctuation Matters”

Thank you for reading.

Paul Trudelle

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