(Last Updated On: August 7, 2016)
“The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.” Per Master Sanderson Epps v Homer  290
Mr and Mrs H. were married in 1986. Mr H. had three children from a previous marriage. Mrs H. had four children from a previous marriage. Mr H. got a will kit from a newsagency and drafted wills.
What they wanted to achieve
It appears that what Mr H and Mrs H wanted to achieve was: i) to give certain specific items to their respective children; ii) Mr H gave $15,000.00 to be divided between his children; iii) The remainder of their estate (‘the residue') was to go to the survivor of them; iv) Upon the death of the survivor of them (that is when the last of them died) the residue was to be split 50% between Mr H's children and 50% between Mrs H's children. A perfectly straightforward and reasonable arrangement for blended families.
What the will said
After the arrangements described in (i) and (ii) above Mr H.'s will said: “BUT IN THE EVENT THAT MY WIFE …. AND MYSELF SHOULD PASS AWAY AT THE SAME TIME (emphasis added)….. I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALLY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALLY” (between them).
Mr H. died in 2004. Mrs H. had died in 1998 (six years before). They had not died “at the same time” as contemplated in the clause in the will. The question was, did the wording of the will have the effect that the residue of the estate would be split 50/50 in these circumstances? The court said no. The words used were unambiguous. Mr and Mrs H. had not passed away “at the same time”. There was a six year gap between their deaths. What Mr and Mr H had really meant to say was “If (my wife or husband) does not survive me to divide the residue of my estate equally between those of my children and my (wife or husband's) children.”
The unhappy or happy result (depending upon your point of view)
The clause in the will failed. There was an intestacy of the part of the will dealing with the residue (which was most of the estate). According to the rules of intestacy, Mr H.'s children were entitled to all of the remainder of his estate and Mrs H's children missed out- step children are not a person's children unless they are legally adopted.