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Unexpected issues with wills

Goddess of Justice 
Photo Sunshine Coast Daily Archives
Goddess of Justice Photo Sunshine Coast Daily Archives Sunshine Coast Daily Archives

WHEN making a will, Charles leaves his Westpac shares and Smith Street property to daughter, Jane.

He leaves the rest of the estate to his only other child, Richard.

Jane is appointed as executor and when Charles passes away she seeks legal advice regarding the administration of his estate.

She advises her solicitor the Smith Street property was sold shortly before Charles' death and proceeds were used to pay an accommodation bond so her father could be admitted to a nursing home.

The sale of the home was conducted by a conveyancer and Charles' will was not reviewed.

Because the Smith Street property was sold prior to Charles' death, Jane learns the gift has lapsed and she is not entitled to the sale proceeds.

The solicitor advises Jane if the property had been sold pursuant to a power of attorney, proceeds may have been able to be clawed back in her favour.

In this case, however, the proceeds of sale are dealt with under the residue clause in Charles' will, of which Richard is sole beneficiary.

Then Jane asks her solicitor about the shares.

She is advised the dividends payable on the shares up to Charles' date of death should also be accounted for in favour of Richard as beneficiary of the estate residue.

However, she is entitled to dividends payable after the date of death.

Calculating the division of the dividends requires an accountant's advice.

The solicitor advises that an appropriate apportionment clause in Charles' will could have avoided these problems.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call 6648 7487. 

Topics:  hypothetical with manny wood making a will power of attorney property division residue clause sole beneficiary



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