Although writing your own Will may seem easy enough, the law around Wills can be very complex.
The doctrine of ademption refers to failure of specific gifts that have been referred to in a Will. For example, a specific gift may have been sold or given away during the Will-maker’s lifetime. In these cases, the gift is said to adeem.
If a gift is adeemed it could be cause for that beneficiary to make a claim under the Succession Act 2006 (NSW), as they may no longer have an entitlement, or may have a lesser entitlement, under the will. The costs of any claim are often paid by the Estate and so even if the dispute can be resolved quickly, it still causes cost and delay.
One exception to the doctrine of ademption arises where property has been sold under an enduring Power of Attorney, provided the power was created after 16 February 2004. The result is that the doctrine of ademption will have no application, where assets have been lawfully disposed of by an attorney. What that means is that the beneficiary would have the same interest in any surplus money or other property arising from the sale as if the sale had not occurred.
The doctrine of ademption still has application to a Will-maker who remains in control of his or her affairs and has capacity. For these reasons, you should think carefully about leaving specific gifts and seek legal advice when drafting your Will.
