What are “personal effects” in a will?

Posted on March 5th, 2015

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by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Early in 2015 the NSW Supreme Court dealt with a dispute in which a widow argued that, properly understood, her late husband’s gift to her of ‘household furniture and furnishings and personal effects’ meant she should receive a motor vehicle, shares, money in bank accounts and on term deposit; and what appear to have been some convertible notes.

The case hinged on the legal meaning of the phrase ‘personal effects’. The widow argued that, because the disclosed estate property did not refer to household furniture and furnishings or items such as clothing, watches, accessories or appliances, the expression ‘personal effects’ must have been intended, in that context, to refer to things like bank accounts and share holdings.

The Court did not accept the argument. That was partly because the deceased estate was valued at more than $3M, so the Court inferred there must have been furniture and furnishings which had simply been omitted from estate documents. More importantly, it was because a review of decided cases seemed to clearly indicate that to fall within the phrase ‘personal effects’ an item generally had to be something that was personally used by the will maker. The Court acknowledged that the true meaning of a given always depends on its particular words, and the context of the words; however as a general proposition it is unlikely that bank accounts or shares would ordinarily fall within the meaning of ‘personal effects’.

Whilst the case is not particularly momentous in itself, it does indicate the level of care that needs to be taken in drafting wills – the internal language of particular clauses can be closely examined; and clauses are often interpreted by reference to the will as a whole. Ambiguity of language may result in an estate being divided other than in accordance with the will-maker’s wishes, or at the very least may lead to a dispute over what the will actually meant.

Although this case does not appear to have involved a homemade will, they generally carry with them a higher risk of ambiguous language – simply because few ‘DIY’ will-makers will be alert to the nuances of language that may impact on what the will might mean: Lowe v Lowe [2015] NSWSC 48

Tony Cavanagh is a Director at Mullane & Lindsay, and practises extensively in Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle office.

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