Updated 23 October 2026
Wills - Potential Problem #15: Including Unclear Provisions
Unclear will wording can leave an executor unsure who should inherit, which assets a gift covers or whether a condition must be satisfied. In NSW, that uncertainty may require legal advice or an application to the Supreme Court to interpret the will. It does not automatically make the entire document invalid.
The aim is to express your decisions clearly enough for someone else to carry them out after your death. That includes identifying where you want a fixed outcome and where you deliberately want a trustee to exercise judgment.
1. What makes a will provision unclear?
A clause may appear clear in isolation but conflict with another provision. Alternatively, its meaning may become uncertain when applied to your actual family or assets. Giving “my investment property” to someone becomes problematic if you own several investment properties and the rest of the will does not identify the intended one.
Everyday expressions are not automatically defective. “My children” can describe a valid class of beneficiaries, and “my estate” can have a workable legal meaning. The question is whether the document, read as a whole and in its relevant context, expresses an identifiable gift or workable arrangement.
2. Resolve these questions before signing
| Wording to review |
Possible uncertainty |
Instructions to discuss |
| “All my money” |
Does this include bank deposits, shares or sale proceeds? |
Identify the intended assets or use a properly drafted gift of the remaining estate. |
| “My partner may stay in the house” |
Is this ownership, a life interest or a right to occupy? |
Set out duration, ending events, responsibility for outgoings and what happens if the home is sold. |
| “Equally between my children and grandchildren” |
Does each person receive an equal share, or does each family branch share an allocation? |
Explain the intended proportions, when the class is determined and what happens if someone dies first. |
These are questions for a drafting appointment, not substitute clauses to copy into a will. The answer must fit your ownership arrangements and the rest of the document. A precise street address, for example, does not solve the problem if the property belongs to your company rather than to you personally.
Also distinguish a gift of a particular asset from a percentage of the estate. Leaving one child the house and another “the equivalent” raises questions about the valuation date, mortgage debt and whether enough other assets will exist. An equal percentage of the residue has a different effect from two specific gifts that happen to have similar values today. Explain which outcome you intend, including what should happen if there is insufficient property to achieve it.
3. Deliberate discretion is different from accidental ambiguity
Expressions such as “reasonable support” or “as needed” can be appropriate within a carefully drafted testamentary trust. You may want a trustee to respond to a beneficiary’s changing education, housing or care needs instead of paying an inflexible amount.
The Law Society of NSW explains how trusts work, including the distinction between fixed entitlements and discretionary benefits. For a trust created by a will, the document should make clear who may benefit, who makes decisions and what powers and limits apply.
Discuss whether payments may come from income, capital or both, how long the arrangement should continue and who receives anything left over. Flexibility needs a functioning legal structure. Simply telling an executor to “look after everyone fairly” may leave basic questions unanswered.
Be clear about whether a direction is intended to impose a legal obligation or merely express a preference. A gift to an adult child accompanied by a hope that they will help their siblings is not a reliable substitute for a properly structured arrangement benefiting those siblings. Discuss the intended obligation with your solicitor rather than relying on reassuring language whose effect has not been checked.
4. A verified NSW case: Jones v Robinson
In Jones v Robinson & Ors [2019] NSWSC 932, a handwritten will combined directions about a villa with gifts of money and “investments”. The wording left uncertainty about whether financial gifts operated if the villa remained unsold, and whether investments included bank deposits.
Reading the will as a whole, the Court concluded that, after the specified legacies, funeral expenses and jewellery gift, the remaining assets were to be divided 75:25 between two nieces. The villa’s value counted towards that division. The Court did not treat it as an additional gift outside that calculation.
The decision demonstrates how poorly separated alternatives can require judicial interpretation. The Court resolved the meaning of this particular will; it did not establish a general entitlement for beneficiaries to receive whatever they consider fair.
5. How does a court interpret an unclear will?
Construction is the legal process of determining what a will means. The starting point is the written document as a whole, considered with admissible evidence of its context. A relative’s recollection of a conversation does not automatically override its words. The NSW Supreme Court’s paper on extrinsic evidence explains this distinction.
Section 32 of the Succession Act 2006 permits evidence to assist where language is meaningless, ambiguous on its face or ambiguous in light of surrounding circumstances. There are limits: evidence of the deceased’s intention cannot itself establish the circumstances giving rise to that last category of ambiguity.
The executor should obtain advice on which evidence is relevant and admissible. A dispute about interpretation is also different from a family provision claim, which concerns whether adequate provision has been made for an eligible person.
6. Can a drafting error be corrected after death?
Rectification is different from interpretation. Under section 27 of the Succession Act, the Court may rectify a will that fails to carry out the deceased’s intentions because of a clerical error or a failure to give effect to their instructions.
An application must generally be made within 12 months after death. The Court may extend that period if it considers this necessary and the estate has not been finally distributed. Seek advice promptly; this is not a general power to rewrite a will because someone dislikes the outcome.
7. What should an executor do when wording is disputed?
Preserve the original will and any codicils. Identify the disputed clause and the assets it affects, and obtain advice before distributing those assets. Ask about securing relevant drafting instructions, correspondence and file notes through the appropriate legal process. Keep a record of enquiries and communications with beneficiaries.
Legal Aid NSW’s estate distribution guidance explains an executor’s responsibilities to protect assets, keep records and distribute according to the will or applicable intestacy rules. An executor should not simply select the interpretation that benefits them personally.
Advice, negotiation or mediation may resolve the issue without a contested hearing. If uncertainty remains material, court directions or a construction application may be necessary. A failed gift can pass under the residue or intestacy rules, depending on the will and circumstances; it does not necessarily invalidate every other gift.
8. Make the intended outcome easy to check
When reviewing a draft with your solicitor, explain the result you expect in ordinary language. Ask them to work through what each beneficiary receives if you still own the relevant assets, if you have sold them, or if a beneficiary has died. Check that percentages and substitute gifts work together.
Separate specific gifts from the remaining estate, and distinguish ownership from a right to use an asset. Record any intended conditions and alternatives. If your instructions change, arrange a properly prepared new will or codicil rather than adding informal annotations that may create another dispute.
Ask for unfamiliar terms to be explained before signing. Definitions, cross-references and exceptions should all support the same plan. A document can sound precise yet still contain contradictory clauses, so a final review should test the whole will rather than checking individual sentences in isolation.
CM Lawyers can review unclear provisions and help executors understand disputed wording. Explore our wills and estates services, or contact Christine Manolakos and the team to discuss your will, your instructions and the practical outcome you intend.
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