In South Australia, as in other Australian jurisdictions, courts apply the “armchair principle” when interpreting a Will, placing the Court in the armchair of the Will maker, enabling it to analyse the document in light of the Will maker’s personal and factual circumstances. The objective is to uncover the testator’s true intentions through the language expressed in the Will, understood not in isolation, but within the broader context of their life.

When interpreting a Will, the Court’s unwavering commitment is to uncover what the testator said, not what they might have meant to say. This guiding principle, deeply rooted in both English and Australian law, was affirmed by Romer LJ in Perrin v Morgan [1943] AC 399. The Court must read a Will in light of the circumstances in which the testator made it, but it must ultimately draw the testator’s intention from the language they used, respecting their expressed wishes.

This idea—often called the ‘expressed intention’ approach—was restated by Lord Simon, who explained that the role of the Court is not to speculate about the testator’s motives but to interpret the meaning of the words on the page. The ‘expressed intention’ approach means that the Court’s primary focus is on the meaning of the testator’s actual expression rather than discerning their underlying intentions. Courts have also emphasised the importance of understanding the scheme or structure of the testator’s dispositions. Identifying that underlying plan, as discussed in cases like Muir v Winn [2009] NSWSC 857 and Fairbairn v Varvaressos (2010) 78 NSWLR 577 to give it effect—particularly where the literal reading would lead to unlikely or unreasonable outcomes.

One longstanding interpretive tool is the ‘armchair principle’, which allows the Court to consider all facts known to the testator when making the Will. This means that the Court can put itself in the testator’s position, considering their knowledge and circumstances at the time of making the Will. However, two essential limits apply: the Court can only consider circumstances as they existed when making the Will, and it cannot use external evidence to twist the plain meaning of the testator’s words. As Lord Romer put it, sitting in the testator’s armchair doesn’t give the Court a licence to write a new will.

In Marley v Rawlings [2014] UKSC 2, the UK Supreme Court endorsed a modern, objective approach to will construction—essentially the same method used to interpret contracts. The rules for admitting extrinsic evidence in Will construction relate to the approach courts take—either the literal or the intentionalist. The literal approach, focusing on the actual words, was dominant under common law. The intentionalist approach, based on the testator’s intent, became prevalent after Perrin v Morgan (1943). Despite this, the rules of admissibility have remained essentially unchanged, although Australian statutes have modified them by UK law. Historically, judges followed the literal approach, but Perrin v Morgan marked a shift toward intentionalism, exemplified by a case where a will’s wording led to disputes over the meaning of “money”—strictly cash and debts, or including investments and estate.

This approach has been adopted in Australia and supported by the High Court in Byrnes v Kendle (2011) 243 CLR 253. The Court examines the words used in the Will against the background of the factual and documentary context. Still, the focus remains on what the testator expressed—not what the Court suspects they intended.

This modern approach also raises the question of using draft Wills to assist in interpretation. While historically excluded, courts now increasingly accept that draft documents may be relevant—so long as there’s evidence the draft was prepared or approved by the testator. In such cases, draft wills can form part of the “surrounding circumstances” used to clarify the meaning of the final instrument.

Ultimately, interpreting a Will is not an exercise in rewriting it or fixing perceived mistakes. The Court’s task is to give legal effect to the testator’s written words in context, in a manner that respects both legal rules and the document’s structure. This dedication to the law is a fundamental aspect of the Court’s role. It’s not about what the testator might have meant—it’s about what they said.

When interpreting a Will, the Court’s pivotal role is to discern and give effect to the testator’s intention, a foundational principle in both English and Australian law that illustrates the significant responsibility of the Court. As affirmed by Romer LJ in Perrin v Morgan [1943] AC 399, the Court must derive that intention from the written language of the Will—what is often called the “expressed intention” approach restated by Simon LJ, who cautioned that the Court’s role is not to speculate on what the testator meant to do but instead to interpret the meaning of the words used.

Courts have also stressed the importance of reading the Will as a whole to identify the testator’s overall scheme or structure of dispositions. This holistic approach is critical where a literal reading would produce improbable or unjust results, as seen in Muir v Winn [2009] NSWSC 857 and Fairbairn v Varvaressos (2010) 78 NSWLR 577.

A longstanding interpretive aid is the “armchair principle,” which enables the Court to consider the facts known to the testator at the time the testator made the Will. However, the following constraints limit this principle:

Only circumstances existed at the time the testator made the Will.
The Court cannot use the External evidence to distort or override the plain meaning of the language used.

As Romer LJ emphasised, sitting in the testator’s armchair does not permit the Court to rewrite the Will.

In Marley v Rawlings [2014] UKSC 2, the UK Supreme Court endorsed a modern, objective approach to will construction—similar to contractual interpretation—examination of the Will’s language in light of its documentary and factual context. This method, adopted in Australia and applied by the High Court in Byrnes v Kendle (2011) 243 CLR 253, reaffirms that a document’s legal effect must be determined objectively by reference to its text—not by subjective statements of intention.

In Byrnes v Kendle, the dispute involved whether an informal “Acknowledgment of Trust” created a binding obligation. Although the document was informal and later conduct inconsistent, the Court applied the armchair principle and found a valid express trust. The case exemplifies equity’s readiness to uphold genuine intentions where the language supports it, even if the form is imperfect.

Courts have also become more willing to consider draft wills as part of the surrounding circumstances, provided there is evidence that the draft was prepared or approved by the testator. When admissible, draft wills can illuminate the testator’s intentions and assist in construing ambiguous clauses.

The Estate of Olive Deane Pepper

In the Estate of Olive Deane Pepper (Deceased) [2025] SASC 103, the executor asked the Supreme Court of South Australia to interpret the phrase “my children” in a Will executed in 1992. The deceased, Olive Deane Pepper, passed away in late 2023 at the age of 100, leaving an estate valued at under $880,000. Her Will named her three children—Debra, Alan, and Brian—as executors and left the residue of the estate to “such of my children and their issue as survive me by thirty (30) days and attain the age of twenty-one (21) years and if more than one in equal shares.”

Unexpectedly, a fourth individual came forward: Janette Marie McBride, born in 1954 during the deceased’s marriage but adopted out at six months. Her birth certificate named Olive as her mother. Another family adopted Janette, and under South Australian law (s 9 of the Adoption Act 1988 (SA)), adoption extinguished the legal parent-child relationship with Olive.

A Quiet Reunion

In the late 1980s, Janette located Olive. They rebuilt a close, private relationship that included holidays, hospital visits, and gifts. Olive’s husband, Ray, and Janette’s children became acquainted with each other. However, Olive did not tell her other children about Janette and took steps to keep the relationship secret.

In 2016, Janette’s daughter, Deanna, contacted Debra, one of Olive’s known daughters, revealing that Janette was her half-sister. Although this contact did not lead to further family integration, Olive became aware that Debra knew.

Following Olive’s death in 2023, the executors—Debra, Alan, and Brian—applied for the Court’s guidance on whether Janette, as the deceased’s biological daughter, was entitled to share in the estate as one of “my children” under the Will.

Legal Question: What Does “My Children” Mean?

The central legal issue was whether the term “my children” in clause 4(c) of the Will included Janette, despite her adoption decades earlier.

The executors argued that the Will was clear: “My children” referred only to the three children Olive had raised with her husband. They relied on the mirror wills made by Olive and Ray in 1992, which did not mention Janette and were never updated. They submitted that Olive intended her estate to benefit only her legal and publicly acknowledged children and grandchildren. Further, they argued that under the law in 1992, adoption severed Janette’s status as Olive’s child for all legal purposes, including succession.

Janette, however, contended that she was a “child” of the deceased. She argued that the Will’s language was not ambiguous and that the Court should interpret “my children” to include her, given her biological relationship and the affectionate, longstanding relationship that followed their reunion. The secrecy of that relationship, she submitted, did not diminish its significance. Her case focused on the expressed words of the Will in light of the reality of the deceased’s life and relationships.

The Court’s Reasoning and Decision

Hughes J concluded that Janette was not entitled to share in the estate. Although the deceased and Janette had a genuine, close relationship, the Court held that the words of the Will were determinative.

Applying the armchair principle, the Court considered the facts known to the deceased in 1992. By then, she had reconnected with Janette. However, she did not amend her Will despite outliving her husband and having the opportunity to revise her testamentary wishes.

The Court accepted that the deceased had deliberately kept her relationship with Janette secret. But secrecy alone did not prove an intention to include Janette as a beneficiary. Nor did affectionate statements made to Janette or her family translate into testamentary intent.

The phrase “my children” was interpreted in its legal and factual context, which included the mirror wills, the absence of any reference to Janette, and the legal effect of adoption. The Adoption Act 1988 (SA) made clear that Janette ceased to be the deceased’s legal child once adopted. Hughes J found no sufficient basis—either in the Will or in extrinsic evidence—to displace this legal position.

Conclusion

In the Estate of Olive Deane Pepper (Deceased) [2025], SASC 103 affirms that will interpretation remains a matter of discerning the expressed intention of the testator, read in its proper legal and factual context. Despite the powerful human story of reunion and affection, the Court held that Olive did not intend to include Janette McBride in the phrase “my children” and, therefore, not entitled to share in the estate. The decision highlights the enduring significance of legal adoption, the limitations of extrinsic evidence, and the strict application of testamentary language when no ambiguity exists.

The post Intention, Language, and the Armchair Principle appeared first on heirs & successes.