Estate Litigation – the ademption principle in action

by Andrew Lind on 8 September, 16

The principle of ademption provides that where a gift is left pursuant to a will and the subject matter of the gift is sold before death, the gift is considered adeemed or as having no effect.  In Queensland, s 60(1) of the Guardianship and Administration Act 2000 (Qld) allows the Supreme Court to award compensation to persons whose gifts are lost by the dealings of an administrator.

One of the common law exceptions to the ademption principle is found in the decision in Re Hartigan[1] where it was found that:

‘…if real estate is sold by an administrator and the testator is not capable of changing his or her will, then the gift of real estate is not automatically adeemed. The devisee is instead entitled, at face value, to the proceeds of sale. (JEB at [32]).

One of the aims of this exemption is to preserve a testator’s wishes from being defeated by the dealings of an administrator.  This was utilized in JEB [2016] WASAT 65 a recent decision from Western Australia.  Relying on the exception outlined in Re Hartigan, the Public Trustee argued that the proceeds of sale should be held for the person who was initially intended to receive it as a gift.  Therefore the Tribunal ordered that the net proceeds from the sale of the property be retained in a separate bank account.

For more information please read the full article here or contact our Business Development Team on 07 3252 0011 and book an appointment with Estate Litigation Lawyers today.

 

This article was written by Emario Welgampola, Special Counsel, and Nicola Goodwin, Law Clerk.

 

[1] Ex parte The Public Trustee in the State of Western Australia (unreported, Supreme Court of Western Australia, 9 December 1997, Library No. 970736.

{ 2 comments… read them below or add one }

Mrs P. A. Lewis March 5, 2017 at 4:51 am

Do you deal with property protection against repossession, I am a Christian and I need advice and if correct legal representation
regarding my property on the Gold Coast. I am dealing with RHG
and find them not a very nice company to deal with and would have a good case I believe to put before the judge to prevent repossession. I do have a property I am trying to prepare for sale in the u.k. but there is a lot to do, and I have had to have a year out after having breast cancer which I am now free of. Please advise.

Andrew Lind March 6, 2017 at 11:43 am

Hello Mrs Lewis. Amazing to hear of your recovered from Breast Cancer. Our firm Corney & Lind Lawyers advises regularly in asset protection, property law disputes and debt recovery disputes. It seems your query deals with a combination of those matters. We are happy to provide a second opinion to RHG Lawyers, but in order to do so, we will need an opportunity to meet with you for an initial consult to take your instructions. Please feel free to contact our office on 07 3252 0011 to discuss further.

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