Commenced 1 November 2017
Often a Willmaker leaves a specific gift in his or her Will and at the time of death it is no longer owned by the Willmaker. This specific gift fails for “ademption”. Therefore, as the gift no longer exists the beneficiary who has been left that gift misses out.
A common example is when a Willmaker leaves a property to a beneficiary and at the date of death the property has already been sold.
Exception to ademption
There is now an exception to ademption for property dealt with by an attorney.
Section 83A of Powers of Attorney Act 2014 (Vic) (POA Act) provides that interest of principal in property not to be altered by sale or other disposition of property.
Therefore, under this new provision a beneficiary that has been left a property in the Will that has been sold by the Attorney would be entitled to receive any money identifiable as the proceeds of sale of the property.
Unjust Advantage or Unjust Disadvantage
Section 50 of the Administration and Probate Act 1958 (Vic) (A&P Act) provides that if the exception to the ademption causes an unjust advantage or an unjust disadvantage to a beneficiary, the Court has the power to remedy this.
Therefore, a beneficiary may apply to the Court if any beneficiary under the Will gains an unjust advantage or suffers an unjust disadvantage by s83A of the POA Act.
If the Court is satisfied the Court may make any order it thinks fit to remedy the unjust advantage or unjust disadvantage.
An unjust advantage arises when there is an unjust or a disproportionate advantage of a kind not contemplated by the Willmaker in the Will.
An unjust disadvantage arises when there is an unjust or a disproportionate disadvantage of a kind not contemplated by the Willmaker in the Will.
A Willmaker leaves a property to child A and leaves shares to child B. Both the property and the shares are of equal value. The Willmaker’s attorney sells the property and uses the proceeds of the sale to pay the bond to enable the Willmaker to be placed in a nursing home and the attorney uses the shares to cover other ongoing expenses for the Willmaker.
Upon the Willmaker’s death the shares are gone and the bond is the only asset of the estate. Child A will receive the bond and child B misses out. In this scenario Child A has gained an “unjust advantage” and Child B has suffered an “unjust disadvantage” Either child can make an application to the Court to remedy this.
Traceable Income from Sale of Addeemed Assets
Section 51 of the A&P Act provides that a beneficiary under a Will to whom s83A of POA Act applies is entitled to any traceable income or capital gain generated from the proceeds of sale or disposal of the property referred to in those sections to the extent that the income or capital gain has not been applied under the powers referred to in the applicable section.
Therefore, any income earned on an investment will pass to the person intended to receive the original gift
New VCAT Powers with Respect to Wills
Pursuant to s134A, s134B and s134C of the POA Act, VCAT now has the power to open a Will, compel production of a Will and make copy of a Will available to an attorney.
This also applies to a revoked will, a purported will or a copy of a will of the principal if the principal under an enduring power of attorney does not have testamentary capacity.
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