4.35 Interpretation of the Will

How is a will interpreted?

According to the testator's wishes as understood from the will.

What happens when the testator's wishes cannot be understood from the will?

Then his wishes are checked from external circumstances.

What happens when there is no doubt about the instructions in a will?

Where a will is clear as to the testator's intentions, and there is not more than one possible interpretation, then it will be carried out literally, according to what is said.

What happens when there is more than one possible interpretation of the testator's intentions in an instruction ?

Preference is given to the one which allows the will to be validated, rather than the one according to which it would be cancelled.

What happens when more than one possibility for interpreting an instruction are equally likely ?

Where it is impossible to ascertain what or to whom the testator makes the bequest, or its consequences clearly, then the instruction is cancelled.

Can one use a similar instruction in another will to help interpret one in the will for which one seeks probate ?

No. Interpretation of a will is exclusive to that particular document.

What happens if a testator states in his will that he plans to add an additional part with further instructions in a separate document about how his estate should be distributed?

If the will is clear enough to be carried out, then it can be declared valid even if the testator did not write a separate document as he planned.

What format should the testator use so that his will is sure to be valid?

The language used can be in the tone of a gift, a wish or announcement, pardon, instruction or anything which leaves no doubt that the document is a will , the subject of which is what shall be done with the testator's estate after his death.

If an instruction is unclear and as a result it will be cancelled, and the relevant property shared amongst the heirs according to law, shouldn’t the testator’s wishes be taken note of ?

No, if the instruction is unclear and impossible to carry out, it does not matter if the testator did not wish the particular property to be shared between the legal heirs.

If the testator willed certain property to a particular charity and it no longer exists can efforts be made to try and fulfil his wishes as far as possible and find a substitute beneficiary ?

Yes ! If the particular instruction cannot be carried out exactly, attempts can be made to find a charity of similar aims which can benefit instead.

What will happen if a testator wills certain property to a named relative – but there are two of them with the same name?

Assuming that no clear identifying features like I.D. numbers are mentioned, the instruction should be interpreted in accordance with external circumstances to try and establish which of the two possible people the testator intended to identify, and the interpretation which would avoid the cancellation of the instruction should be favoured.