Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 17 June 2017.
William makes a will, leaving his motor vehicle to his best friend, Jack. William’s will also leaves 500 Commonwealth Bank of Australia shares to Jack and leaves the rest of his estate to his son, John.
Years later, William’s son notices that his father’s motor vehicle needs to be upgraded. He buys his father a new car on the basis that when William passes away, he leaves the car to him. William thinks when he dies, Jack is only entitled to the motor vehicle he owned at the time he made his will and does not bother to update his affairs.
William also has a falling out with Jack and decides to sell his CBA shares. He thinks that by liquidating the shares, it will make it easier for John to administer the estate and that it will make it clear that Jack receives nothing.
When William passes away, John receives legal advice regarding the administration of his father’s estate.
He is informed that the will “speaks from death” and is construed as if it were made immediately before William’s death. Under the terms of William’s will, the description of the motor vehicle means that although Jack is not entitled to the proceeds of sale of the old car, the gift does not “adeem” and William has an obligation to attend to the transfer of the new car to Jack.
John is also advised that because the reference in William’s will to the CBA shares does not refer to the gift as a gift of “my” CBA shares, the gift is a “general legacy” rather than a “specific gift”. It is therefore John’s obligation to set aside sufficient funds from William’s estate to purchase 500 CBA shares for Jack, based on their value at the date of death.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
