By Ron Cohen

25 October 2016

A common concern of many people making a Will is how specific it should be in terms of identifying the Willmaker’s assets and gifts to certain persons.

There are many rules relating to the interpretation of Wills, some stemming from case law decades old, to modern statutes. For this reason, when allocating specific gifts, it is very useful to discuss your wishes and circumstances with a legal practitioner who is experienced in the area.

Some common pitfalls include:

  • Ambiguously identifying a specific gift so that the executor cannot readily ascertain what is intended to be given.
  • If a specific gift is sold or no longer exists when you die, then the gift is adeemed. That is, the gift simply fails, which may result in disastrous consequences. For example, if a Willmaker leaves a particular property to their son and the remainder of their estate to their daughter but the property is sold before his or her death, the son misses out completely and the daughter takes everything.
  • The Will does not say what you intend. For example, “I give my Maserati GranTurismo to my son, Vincenzo” would mean that Vincenzo misses out if the Willmaker crashes his Maserati before his death. On the other hand, “I give a Maserati GranTurismo to my son, Vincenzo” could, depending on the context, obligate the executor to use funds from the estate to purchase that exact car and give it to Vincenzo. Alternatively, it could provide, “I give any motor vehicle owned by me at the time of my death…”
  • Specific gifts may fluctuate in value. For example, many assets depreciate, whilst house prices may fluctuate unpredictably. If you want to give one beneficiary a specific gift and also a share in your remaining estate together with other beneficiaries, then it can be useful to include an adjustment provision if you intend that all beneficiaries receive an equal share of your estate overall.

 

For expert advice please contact Ron Cohen or a member of our Wills and Estates team.

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