Christmas is a time of family and giving. A lot of time is spent on selecting the perfect gift for each of your family members. These themes can also apply to your will – you have likely spent a lot of time carefully considering the specific gifts you wish to leave to a particular person in your will, whether that be a property, jewellery, or an artwork.
However, your careful planning may be undone if the attorney you have appointed under your Enduring Power of Attorney inadvertently sells the item(s) gifted in your will during a period you are incapacitated. In these circumstances, the general legal position in Queensland is that if an asset does not exist at the date of your death, the gift of it fails and your intended beneficiary receives nothing.
Under the Powers of Attorney Act 1998 (Qld) (Victoria has similar legislation), it is possible for the disappointed beneficiary to make an application to the Supreme Court or the Victoria Civil and Administrative Tribunal as the case may be for compensation out of your estate after your death, which may be costly for both the disappointed beneficiary and your estate and could lead to strained relationships between family members. New South Wales’ legislation provides that the disappointed beneficiary is entitled to the surplus of the asset that has been disposed of and also provides a mechanism to apply to the Supreme Court if a dispute arises.
Litigation over a failed gift can be avoided through careful estate planning that encompasses both your will and your enduring power of attorney. If you have any concerns about this potential problem, your de Groots lawyer will be able to assist you. Please contact our office for a list of other matters that may indicate the need for you to review your will.