What happens if you are left a specific gift in a Will which no longer exists?

Let’s just say you are left the proceeds of a bank account by a family member which had a million dollars in it at the time they wrote their Will.

At the time of death you discover that particular bank account no longer exists – it was closed and the money transferred into a new bank account.  Can you still inherit your million dollars?

Probably not.

We recently acted for a client in this exact situation.

A deceased left two nominated bank accounts to his children but then closed those original bank accounts and opened two new accounts with the same funds. The residue of the estate was left to the deceased’s second wife.

The problem was that the deceased did not change his Will.

The law of ademption applied which meant that the gift failed because the deceased no longer owned the specific bank accounts at the date of death. Even though the funds could be traced to the new bank accounts and the deceased no doubt intended those funds to go to his children, the gifts failed because the Will was not changed to suit the new circumstances. The Court has found that exceptions would only apply in limited circumstances, such as if there was some undue influence placed on the will maker to sell or redeem a gift.

In this case the proceeds of the bank account fell into the residue of the estate and were ultimately received by the deceased’s second wife, not the children as originally intended.

Moral to the story? Make sure your Will is current.

If you have left a specific gift in your Will or if any of your circumstances have changed you should see one of our experienced team to review your Will.

Estates can get tricky, but luckily, so are our lawyers. We can help guide you through the Wills process and give you the peace of mind that your affairs are in order.


Interested in learning more on Wills and Estates?

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