Background
Neville Cecil Huxley died in 2021 leaving a handwritten 2013 “Kit Will.” His estate included land at Millchester near Charters Towers, chattels on that land, and funds in two bank accounts. Probate was granted to two of his daughters, Ellen Roper and Catherine Berry, but administration stalled amid disputes among family members about the land.
Clause 5 purported to distribute money from the testator’s accounts among nine children, directed that the property remain in the family for his sons to live in, and included directions concerning powers of attorney and the use of his sons’ bank accounts to maintain the land and pay rates. Three sons with Fragile X Syndrome were said to have a life interest in the land. Roper sought declarations on construction of the will and Berry’s removal as executor.
The Court’s Holding
Johnstone J held that the will validly directed that debts and funeral expenses be paid from the testator’s two identified bank accounts, with the remaining money divided equally among nine named children, excluding Tina Gilbert. The purported directions concerning powers of attorney for two sons, payment of rates from sons’ accounts, and holding sons’ accounts in trust were invalid because they concerned property or powers that did not belong to the testator at death.
The statement that the property was to “stay in the family for my sons to live in the family home” created no beneficial interest or life estate for the sons. Read with the will as a whole, it was an unworkable expression of wish rather than a dispositive provision: it created no trust, did not identify the relevant ownership arrangements or future interests, and did not address circumstances in which the sons did not live on the property. The land therefore fell into partial intestacy under Part 3 of the Succession Act 1981. The court adjourned, rather than determined, the application to remove Berry as executor.
Key Takeaways
- A court may construe an informally drafted will to give effect to a discernible intention, but cannot rewrite it.
- A wish that land remain available for family members to live in will not necessarily create a life interest or trust.
- Invalid directions concerning another person’s bank accounts or powers of attorney can be severed from a will.
- Property not effectively disposed of by a will passes under the intestacy rules, even where the will expresses an intention to exclude an otherwise entitled child.
Why It Matters
The decision illustrates the limits of judicial construction in homemade wills. Even where a testator’s broad family objective is apparent, a court will not supply the essential terms of a life interest, trust, or ownership arrangement that the will does not express.
It also underscores the practical cost of executor conflict in modest estates. Although serious delay had occurred, the court deferred removal of an executor after resolving the construction dispute, leaving open further relief if cooperation did not improve.