The new Wills, Estates and Succession Act ("WESA") comes into force this month, after many years of waiting. There are many changes to the current law and we will need to be extra diligent in carrying out our estate planning and estate administration to ensure compliance with the changes.
If you are administering an Estate where the deceased had a Committee or other personal representative (such as an Attorney under a Power of Attorney), there is an important change relating to property that is specifically gifted in the will.
Take, for example, will-maker "William". Some years before his death, William was not capable of managing his affairs, and a Committee (substitute decision maker) was appointed for him. William owned a 1963 split window Corvette. The Committee sold the Corvette when William moved into a care home, for $125,000. When William dies, we see that his will gifted his Corvette to his friend Brian.
Before WESA, Brian, as the beneficiary of a specific asset that no longer formed part of the Estate, would receive nothing. Under WESA, however, Brian will receive from the Estate the amount equivalent to the proceeds of the Corvette – $125,000.
This is a significant change, but there is one caveat. Where the will-maker instructs his or her Attorney to sell an asset during his or her lifetime that is specifically gifted in the will, then the gift in the will fails – the beneficiary will not receive the equivalent amount to the sale proceeds.
The change in WESA is consistent with the overall thrust of this new legislation to facilitate the fulfillment of the will-maker's intentions wherever possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
