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NEWS > AUTUMN 2003
Beneficiary of will - wrong name, right person
The Full Court of the Supreme Court of Tasmania has recently examined a case where a testator had incorrectly identified and named beneficiaries under his will. The Court upheld gifts made to the beneficiaries, highlighting the readiness of the courts to look behind the written word to give effect to a will-maker's intentions in providing for loved ones.
In Hopwood & Anor v Cuthbertson (2001) 10 Tas R 186, the testator, Owen Forrest Lord, left part of his estate "for my grandsons the said Ian Hopwood, Andrew Hopwood, Len Hopwood". The description of these persons was not accurate on two counts.
Firstly, Ian and Andrew Hopwood were not grandsons of the testator; they were the sons of the testator's nephew. This mistake was understandable as the father of Ian and Andrew had been raised as if he was the testator's son and, as such, his sons regarded the testator as their grandfather. The Court accepted that the gifts should stand despite the misdescription.
The second inaccuracy, however, was more difficult. The third beneficiary, Len Hopwood, did not exist. There was, however, a Lynn Cuthbertson (nee Hopwood, and sibling of Ian and Andrew). In this instance, the testator had incorrectly described the name, sex and relationship of the beneficiary. The court had to decide whether this beneficiary could still benefit under the will despite the inaccuracies.
The Court determined that Lynn Cuthbertson could benefit under the will as it was satisfied that she was the person referred to as "Len Hopwood". The Court relied on two principles of construction, namely (a) courts are reluctant to hold a gift void for uncertainty, and (b) courts will use every endeavour to ascertain to whom the testator intended to refer.
The Court determined that false descriptions of beneficiaries do not necessarily vitiate gifts made to them. The critical issue is whether the court can be satisfied about the identity of the intended beneficiary. In this case, the names "Len" and "Lynn" were so similar that it was possible the solicitor preparing the document misunderstood the testator. Similarly, the three beneficiaries referred to as "my grandsons" were clearly the deceased's surrogate grandchildren, Ian, Andrew and Lynn. The Court was left with no doubt that the testator intended to leave gifts to Ian and Andrew Hopwood and Lynn Cuthbertson.
While a court is not empowered to rewrite wills or speculate as to a testator's intentions, where it is satisfied that there is sufficient evidence of a testator's wishes where uncertainty of language exists, written mistakes or inaccuracies can be overlooked to give effect to these wishes.
Disclaimer:
The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from our office. | 
