Not accounting for “what if”

Joseph died in May 2023. He had one sister, Gillian, with whom he had no ongoing relationship.

Joseph was however, close to his nephew, Jordan, often spending time together at Joseph’s auto garage, where Jordan worked on a casual basis.

Joseph made a will in 2021 leaving most of his estate, valued at approximately $2 million for the benefit of Jordan.

The will set up a fund for Joseph’s dog during its lifetime, with the balance to be held on trust for Jordan, stating that the trust “cannot be liquidated before his 35th birthday”.

Probate was granted to Joseph’s friend, Annie, and Jordan as executors. Unfortunately, Jordan later passed away at 31, before reaching 35, creating a question as to how the will should operate.

Annie brought proceedings, asking the Court to determine whether Jordan’s interest had taken effect on Joseph’s death, or whether the gift failed and resulted in an intestacy. Gillian, who stood to benefit if that occurred, was named as a defendant.

The Court noted that the will was something of a “home-made” effort, with unusual wording and drafting quirks, including a direction that the dog be given “no tinned food… unless absolutely necessary”. In particular, the phrase “cannot be liquidated” raised questions about whether Jordan’s entitlement was conditional or simply delayed.

Looking at the will as a whole, the Court found that Joseph’s intention was clear; he wanted Jordan to benefit from his estate, not Gillian. Provisions allowing Jordan to receive ongoing benefits suggested his entitlement was intended to start straight away.

In the end, the Court treated the restriction in the will as a delay in access, not a barrier to Jordan’s entitlement.

Accordingly, Jordan’s interest was established at the time of Joseph’s death, meaning the remaining funds passed to Jordan’s estate rather than falling into intestacy.

Thank you to Ellysha Laklem for her assistance with this column.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at [email protected] or call (02) 66 487 487.

This fictional column is not legal advice.