What happens when a Will cannot be distributed fully?

There are a variety of reasons why a will cannot be fully distributed. This short article will cover a handful of situations where this can occur.

Gifting with no sub-clause

A sub-clause to a gift clause may sound something like “where X cannot receive my bequeathment, I direct that it is instead directed to Y or to whatever charity my trustees believe has the same moral framework as X or Y.” Where a sub-clause like this does not exist, then it is likely that the beneficiary will not receive a gift, creating future problems.

Ademption

Ademption occurs where a gift cannot be gifted as it is no longer in the possession of the estate. A common occurrence is where a house is gifted in the will but is sold after its writing. Where this occurs, the gift fails, and it is generally understood that the will-maker simply changed their mind about the intended beneficiary.

Intestacy

Intestacy is where a “person dies leaving a will which does not effectively dispose of the person’s estate wholly or partially,” when this occurs, the distribution of the estate follows the hierarchies outlined in legislation. This legislation outline the order of distribution. However, it is important to note that one shouldn’t rely on the rule of intestacy as it is not full-proof and can likely be challenged.

The best solution for any issues with a will

The best way to avoid all these problems is to ensure that the will is thorough, clear, and regularly checked and updated. If you’re unsure about the distribution of your estate, please reach out to us.I note that these are not the only issues that can cause a will to not be distributed properly, however our team at Wollerman Shacklock Lawyers are happy to help with any other questions or issues you may have.

If you would like to make an appointment for a will or any other legal matter, please call us at (03) 9707 1155 or email us at admin@wslegal.com.au.