Property & Conveyancing Lawyer Sydney

Interpretation of Personal Possessions In A Will

What Is The Interpretation of Personal Possessions In A Will?

This has long been the subject of court decisions about what is included in “personal possessions” and how they are to be distributed to beneficiaries.

A recent case in the New South Wales Supreme Court, Lowe v Lowe [2015], examined the meaning of “personal effects” and how they are to be distributed to beneficiaries.

The deceased had three children with his first wife, who was deceased, and no children with his second wife. The value of his Estate exceeded $3 million, which included shares in a public company valued at $2 million, real estate valued at $1 million, a motor vehicle valued at $60,000 and money in term deposits and bank accounts of approximately $400,000.

The deceased left a Will, naming his three children as his Executors. He left one of his sons $180,000 and forgave any debts owed to him by his other son and daughter. He left $20,000 to each of his grandchildren and provided for his second wife to live in his property for 18 months, with the option to purchase that property. In addition, the deceased left his second wife his “household furniture and furnishings and personal effects” except for “Lowe family heirlooms, photographs and personal papers” which were to be distributed between his three children. The remainder of his Estate was to be divided equally between his three children.

The deceased’s second wife made a family provision claim on the deceased’s Estate and also sought a declaration that, the true construction of the Will of the deceased meant that, she was entitled on the distribution of the deceased’s Estate to the deceased’s motor vehicle, shares and money in bank accounts and in term deposits. This claim was made on the grounds that the deceased had left her his “personal effects” and this included his motor vehicle, share and money in bank accounts.

The question that the Court had to determine was the meaning of the words “personal effects” in the Will and whether it included shares, motor vehicles, money in bank accounts and term deposits.

The Court considered the extensive case law on the interpretation of “personal effects” and how this has changed over time, finding that while in the past “personal effects” may have captured the whole personal estate, it would rarely be so nowadays. Rather, “personal effects” are physical chattels, having a personal connection with the deceased and includes personal motor vehicles. However, money and rights to money are not generally within the concept of “personal effects” because, they are not physical chattels. Accordingly, cash on hand, shares in public companies and money in bank accounts, are not personal effects as they are not physical property.

The Court concluded that the gift of “personal effects” in the Will included, the deceased’s motor vehicle, but did not include his cash on hand, monies in bank accounts, or on term deposits or shares in public companies.

Based on this recent decision, it is important to ensure that your Will deals adequately with how and who you want your personal effects distributed to your beneficiaries. For example, if you do not want your motor vehicle to form part of your personal effects, then you need to ensure that this is dealt with separately in your Will.

To ensure your Will does not cause disputes over who you intended to inherit your personal possessions, then you need to seek expert legal advice on the drafting and interpretation of your Will.

Graeme Heckenberg has been a lawyer practicing Estate Litigation for over 25 years. If you’re living on the Northern Beaches or surrounding Peninsula, you can now have the benefit of his expertise close to home. His office on the Northern Beaches, is conveniently situated in Avalon, making consultation in relation to all Wills and Estates matters easier to schedule into your busy lifestyle.

So if you have moved home, purchased investments or shares in the last year, but haven’t updated your Will, you should really give his office a call today on 9221 0341 or email info@hecken.com.au 

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