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Legal Tip 135: Vague References in Wills

Discussion in 'Legal Issues' started by Terry_w, 9th Jun, 2016.

  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    A potential problem could arise in a will if the testator uses vague language:

    “I give my car to my son”


    If the testator writes this in 2016 and has a Honda, but dies in 2017 while they have a VW which car did they mean?


    In NSW, at least, this is covered by s30(1) Succession Act 2006 – a will takes effect as if it was executed immediately before the death of the testator. So in this example ‘my car’ would refer to the car owned at the time of death and not when the will was signed.


    Nevertheless it is good to at qualify gifts such as adding “… owned at the time of my death…”


    What about something like a coin collection which is built up over time and increases after the will is executed? The same thing applies so a comment such as “I give my coin collect to…” would include coins added after the will was signed. This is the same whether the collection has increased or decreased in size.


    If the intention is to give only the asset owned at the date of the will and not future assets then a more particular description is needed. Such as “I give my Honda Jazz rego XXXX to my son”. If this car is sold then this gift won’t be given. Even if the testator buys a new car, even a new Honda Jazz, this would not be covered under this gift.
     
    York likes this.
  2. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    I do recall a case with a will with terms like that and on death the shares were worth WAY WAY WAY more than when the will was drafted. So for example, cash of $100K to two kids and $1m of shares to son but the will said something vague about estate being shared.....

    Two v's one arguing about issue of what shared means as I recollect v's as gifts ....
    .