What’s in a name

Written on:
May 25, 2020

Every so often we come across a will where an executor or beneficiary’s name has been spelled incorrectly. Generally speaking, minor errors in a will can be explained to the Court and do not usually pose a significant issue when administering a deceased person’s estate. However, if a name is recorded so inaccurately that it is not clear who the will-maker is referring to, the Court may need to decide.

[ Note,“testator” means the person who made the will]

Re Fleming (1962)

What happened: The testator left a will leaving the rest and residue of his estate to ‘my said daughter Agnes and my sons John and Thomas in equal shares’. 

The issue: The testator had:

  • Ten children from his first marriage (one of them named John);
  • Four children from his second marriage; and
  • Five step-children, (one named Agnes and another also named John).  

Which ‘John’ was the testator referring to? His biological son, John, or his step-son, John?

The Decision:  The Court determined that normally the word ‘son’ in its ordinary meaning would mean biological son and would not include step-son. However in this instance, because the testator had referred to his step-daughter, Agnes as a daughter, for the purpose of interpreting the testator’s will, the word ‘son’ could refer to a step-son or a biological son. 

Because two people matched the description in the will (John the biological son and John the step-son), the Court allowed extrinsic evidence of the testator’s intention to be taken into consideration. 

The clerk who took the testator’s instructions gave evidence that he asked the testator whether he desired his children in Western Australia to share in his estate. He said, “no,” he wanted his property to go to “Aggie and the two that are here.” Agnes, Thomas and Terrance were the only children of the testator living in Victoria. 

Accordingly, the Court found that the testator actually intended the gift to go to another of his sons, Terrance.

Charter v Charter (1874)

What happened: The testator left a will (drafted by the local parish vicar). In his will, the testator left his farm to ‘my son, Forster Charter.’ The will also contained a clause directing the testator’s son, Forster Charter to pay money to the testator’s wife ‘so long as they reside in the same house.’ 

The issue: The testator had three sons: the eldest, named Forster Charter, died before the testator created his will. The middle son, named William Forster Charter (but known as Willie), did not live with the testator and his wife, and the youngest son, named Charles Charter, who lived with the testator and his wife.
Which son did the testator intend to leave the farm to?

The decision: The House of Lords determined that the testator intended to leave the property to his youngest son, Charles, because Charles was the only son who lived with the testator and his wife. The testator’s daughter’s name was also recorded incorrectly in the will, leading the Court to conclude that the testator was not very good with names.

What we can learn:

It is important to:

  • Check the full name and spelling of each of your intended beneficiaries and executors when you prepare your will.
  • Engage an experienced estate planning solicitor to help you prepare your  will so that it clearly expresses your wishes.
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