Succession Laws: Report

4. Ademption

Introduction

4.1 The Commission has been asked to review and report on ‘the need to clarify when testamentary property disposed of during the will-maker’s lifetime will be adeemed and when it will be protected from ademption’.

4.2 ‘Ademption’ is a legal term that describes what happens when something that is left as a gift in a will is no longer owned by the will-maker at the time of their death. If the subject of the gift no longer exists in the same form within the estate it is no longer available to the beneficiary. This can occur in a number of ways:

• The gifted property has been sold (for example, the family home has been sold to fund aged care).

• The gifted property has been stolen, lost or destroyed (for example, through fire or other natural disaster where insurance may be payable).

• The gifted property has changed from how it was described in the will (for example, the will refers to shares in a particular company and that company has been taken over by another company).

4.3 Careful will drafting can avoid ademption. For example, a beneficiary can be left a percentage of the estate rather than being left a particular property, or a will can state that the beneficiary should also be entitled to the proceeds of the sale or insurance proceeds of a particular item of property or any property held in substitution for the original property.^[1]

4.4 Problems with the ademption rule often occur where the family home has been left to a beneficiary, but prior to the will-maker’s death the home has been sold, usually to fund aged care.^[2] The will-maker may not have the capacity necessary to change their will when this occurs.

4.5 In the consultation paper on wills, the Commission sought views on three possible ways to reform the law, with a view to better upholding the will-maker’s intentions:

• changing the ademption rule as a whole to allow consideration of the will-maker’s intentions

• providing an exception to the ademption rule for actions taken by a person acting under an enduring power of attorney

• allowing access to a person’s will by a person acting under an enduring power of attorney.

4.6 This chapter discusses the Commission’s recommendations for reform in these areas.

4.7 While the Commission is of the view that there is no need to change the ademption rule as a whole, there are convincing reasons why change is desirable where a substitute decision maker sells property. In these cases, the will-maker is usually unable to change their existing will and may be unaware of the sale. The results of ademption in these cases often significantly distort the will-maker’s intentions, particularly where the gifted asset is the family home.

4.8 This chapter includes an example under each sub-topic to illustrate how the ademption rule currently operates, as well as how it would operate based on the Commission’s recommendations for reform.

The ademption rule

Current law

4.9 In Victoria the ademption rule is part of the common law—the Wills Act 1997 (Vic) does not deal with ademption. The law takes an ‘identity approach’ to determining whether a gift has been adeemed.

4.10 When provisions of a will are interpreted, the common law distinguishes between specific and general gifts. Ademption applies only to specific gifts.

4.11 A specific gift is a gift of property that is owned by the will-maker and is described in the will in a way that separates it from other assets, for example ‘my car’. A general gift is something that the will-maker directs will be obtained by the executor or the value of which will be paid out of the estate by the executor (for example, an amount of money).^[3]

4.12 When determining whether ademption has occurred, the court asks two questions:

• Is the gift specific (rather than general)?

• If it is a specific gift, is the gifted property in the estate?

4.13 If the gift is specific and the gifted property is not in the estate, the gift fails. The beneficiary receives nothing and cannot receive the cash equivalent of the gifted property.^[4]

Example 1: The ademption rule

Mr Ling owns two units. In his will he leaves the unit he is living in (his home unit) to his daughter and the other unit (his investment unit) to his son. He leaves the rest of his estate (the residuary estate) to his grand-daughter.

Prior to his death, Mr Ling sells his home unit and moves to a nursing home. The proceeds of the sale of the home unit are paid as a bond to the nursing home.

As his unit is no longer in his estate, his daughter will receive nothing and his grand-daughter will receive the bond refund as part of the residuary estate. His son’s entitlement to the investment unit is unaffected.^[5]

4.14 This rule is clear and easy to apply and avoids a case-by-case determination of the will-maker’s intent.^[6] It is based on the assumption that if a specific gift is no longer in the estate the will-maker intended that the beneficiary would receive nothing in its place.^[7]

4.15 Although the rule is certain, it is also inflexible and can therefore produce results that would be contrary to the will-maker’s intentions.

4.16 In response to the risk of unfair or unexpected outcomes when the rule is applied, the common law has developed various principles and exceptions to the rule.

4.17 One principle is that gifts are presumed to be general rather than specific.^[8] For example, a ‘legacy equal to 15 per cent of the market value of the house property’ was held to be an amount of money rather than a share in the house.^[9] As general gifts are not subject to ademption, this presumption builds in a bias against the gift failing.

4.18 Another principle is that if the property has changed in ‘name and form only’ but is substantially the same thing identified in the will, ademption will not occur.^[10] For example, ademption may be avoided where money held in a particular bank account has been moved to another bank account, or a mink coat has been ‘converted’ into a stole. Gifts of stocks or shares may be saved in this way where there has been a reorganisation, merger or corporate name change.^[11]

4.19 An exception to the ademption rule is that a wrongful act by a third party will usually not result in ademption. A fraudulent, tortious or unauthorised act leading to the disposition of property without the will-maker’s knowledge has been held to be an exception to ademption.^[12] For example, where a person sells a property while seeking to exercise a power of attorney and the conditions for the exercise of the power have not been met, there will be no ademption.^[13]

4.20 The ademption rule may also not apply to property that is lawfully sold on behalf of a will-maker by an administrator or person acting under an enduring power of attorney (a substitute decision maker). This is discussed in more detail in the next sections.

An alternative approach to ademption

4.21 The consultation paper on wills discussed, as a possible alternative to the ‘identity approach’ taken by the current rule, an ‘intention approach’ where the court asks: ‘Did the will-maker wish the beneficiary to have the value of the property even if it no longer existed at the time of death?’^[14]

4.22 A provision in legislation that set out an intention approach could reflect a presumption against ademption or a presumption in favour of ademption.^[15]

4.23 Views on this issue were divided. Those in favour of a change to an intention approach ^[16] noted that:

• An intention approach would be based on evidence of the will-maker’s intention.^[17]

• A presumption against ademption would remove the need to ‘draft around’ the current rule when preparing a will.^[18]

• A presumption against ademption would be more beneficiary-friendly where the will is homemade and the will-maker is unaware of the ademption rule.^[19]

• An intention approach would be likely to lead to a fairer outcome.^[20]

4.24 Those in favour of retaining the current approach ^[21] noted that:

• The current rule is clear and certain.^[22]

• A person who has testamentary capacity can change their will after property has been disposed of if they do not intend the gift to adeem.^[23]

• The common law already includes exceptions to ameliorate the impact of the rule.^[24]

• A presumption against ademption may be contrary to the will-maker’s intended actions in disposing of the property during their life after the will has been made.^[25]

• A change would create an inconsistency with the settled rules of wills interpretation and lead to speculative litigation over the nature of the will-maker’s intention.^[26]

4.25 In particular, it was said that a presumption against ademption would create considerable and unreasonable burdens for estate administration.^[27] State Trustees noted that:

Some will-makers include in their will (with good intention, but often in the face of professional advice to the contrary) a multitude of specific gifts of personal chattels—for example, jewellery, items of furniture, antique crockery or cutlery, books, etc.—which may individually be of minimal or indeterminate value. It would create an administrative nightmare for the executor if, for any such items that could not be located, there was a presumption against ademption: Would the nature of the item itself be sufficient to rebut the presumption, or would other evidence be required? Would it fall to the residuary beneficiary or beneficiaries, or to the executor, to attempt to rebut the presumption? If non-ademption were upheld, how would the items then be valued? What if there were no evidence of a sale, or a sale price? Even in cases where the items were of insufficient value to warrant litigation, one can easily imagine situations where the administration could become bogged down in controversies over intentions and/or notional valuations, with consequential implications for the legal and other costs borne by the estate.^[28]

4.26 Some individuals and organisations thought it would be useful to have the ademption rule in legislation rather than as part of the common law.^[29] Others felt that the common law is adequate.^[30]

Commission’s views and conclusions

4.27 The Commission considers that no change to the common law rule of ademption is necessary. While an intention approach may lead to a fairer outcome for beneficiaries of otherwise adeemed gifts, it also has the potential to significantly increase the costs and time of estate administration, which would disadvantage all beneficiaries.

4.28 The current rule is reasonably certain and the common law does allow for exceptions to the rule in some circumstances. The ademption rule is part of the common law in all Australian jurisdictions. Therefore, any legislative provision would not promote national consistency in succession law.

4.29 However, the Commission considers that legislation is necessary to provide an exception to the ademption rule where the gifted property is sold or otherwise disposed of by a substitute decision maker. This issue is addressed in the next sections of this chapter.

Acts by substitute decision makers

4.30 It is increasingly common for ademption to occur when specifically gifted property in a will is sold by a substitute decision maker—an administrator or a person acting under an enduring power of attorney (financial).

4.31 The Victorian Civil and Administrative Tribunal (VCAT) appoints an administrator to make financial and some legal decisions for a person who has a disability and is unable to make reasonable judgments about matters relating to their estate.^[31] A person chooses someone to act under an enduring power of attorney (financial) (‘an attorney’) by executing a prescribed form before they lose capacity. The attorney may use their powers immediately or only once the donor has lost capacity, depending on the terms of the appointment.^[32]

4.32 Where a substitute decision maker is making financial decisions, the person on whose behalf they are acting has usually lost the capacity to make a will and thus is unable to change a will they had previously made. A common scenario where there is a risk of ademption is when a substitute decision maker sells the family home in order to fund a move to an aged care facility.^[33] In a recent Victorian case, Justice Hargrave stated:

People are living longer than in the past and their physical health is outlasting their mental capacity. It is commonplace for properties owned by incapacitated persons to be sold under the authority of an enduring power of attorney, to fund accommodation bonds and other necessities and comforts for an ageing population.^[34]

4.33 These types of cases are expected to become more common as our population ages and will-makers become more likely to lose their will-making capacity towards the end of their lives.^[35]

4.34 The law in Victoria currently recognises an exception to ademption in the following two circumstances when a substitute decision maker sells or otherwise disposes of property:

• for acts of an administrator, as provided by section 53 of the Guardianship and Administration Act 1986 (Vic)

• for acts of a person acting under an enduring power of attorney, as permitted by a common law exception.

4.35 Various policy reasons exist for providing such an exception. The will-maker may be unaware of the sale of the property and will usually not have the capacity to change their will to deal with this situation.^[36] In these cases, the assumption of the ademption rule—that a person can always change their will to reflect new circumstances—does not apply. Substitute decision makers and beneficiaries may all be children of the will-maker. Ademption can be particularly unfair in this situation.^[37]

4.36 Where there is no exception, this may influence the behaviour of a substitute decision maker in a way that does not benefit the will-maker. For example, if the substitute decision-maker knows the terms of the will, they may retain property gifted to them when it would be in the person’s best interests to sell, or may sell property to defeat claims of others and increase the residuary estate.^[38]

4.37 As discussed further in paragraphs [4.73]–[4.76], the status of the common law exception for persons acting under an enduring power of attorney is uncertain. The Commission has received unanimous support for a legislative exception to ademption that applies to the actions of both types of substitute decision makers in the same way.

Acts by administrators appointed by the Victorian Civil and Administrative Tribunal

Section 53 of the Guardianship and Administration Act

4.38 The only legislative exception to ademption that currently applies in Victoria is for actions of administrators appointed by VCAT. Section 53 of the Guardianship and Administration Act 1986 (Vic) provides that:

Interest of represented person in property not to be altered by sale or other disposition of property

(1) A represented person and her or his heirs, executors, administrators, next of kin, devisees, legatees and assigns have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers given to an administrator by an order of the Tribunal which have not been applied under those powers as she, he or they would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made.

(2) For the purposes of this section money arising from the compulsory acquisition or purchase under any Act of property of a represented person is deemed to be money arising from the sale of that property under the powers given to an administrator by an order of the Tribunal.

(3) An administrator who receives money or other property under this section must keep a separate account and record of the money or other property.

(4) Money received by an administrator under this section may be invested in any manner in which trust funds may be invested under the Trustee Act 1958.

(5) In this section and section 56 next of kin in relation to a represented person means any person who would be entitled to the property of the represented person or to any share thereof under any law for the distribution of the property of intestates if the represented person had died intestate.

4.39 The following example illustrates how the exception to ademption for the actions of administrators operates in practice.

Example 2: Exception to ademption under section 53

As in example 1, Mr Ling owns two units and, in his will, he leaves the unit he is living in (his home unit) to his daughter, the other unit (his investment unit) to his son, and the rest of his estate (the residue) to his grand-daughter.

In this example, and in the examples that follow, Mr Ling loses capacity after making his will and does not sell his home unit himself.

State Trustees is appointed by VCAT as the administrator of his estate and sells Mr Ling’s home unit to pay the bond at the nursing home.

Due to section 53, on Mr Ling’s death his daughter will receive the refunded nursing home bond, as well as any other proceeds of sale that have not been spent on Mr Ling’s care. His grand-daughter will receive any other assets remaining in the estate that have not come from the sale of the home unit. There is no need to take the matter to Court for a decision.

4.40 In its recent review of guardianship laws, the Commission recommended that a similar provision be included in new guardianship legislation and extended to intestacies and joint assets.^[39] The Commission is aware that its references in this report to section 53 are directed to a provision that is unlikely to remain in its current form because the legislation is being comprehensively revised. However, for ease of exposition, the Commission’s discussion in this report concerns the legislation as it applies at the time of writing.

Model for an exception to ademption

4.41 It is the Commission’s view that any legislative exception to ademption that is introduced for persons acting under an enduring power of attorney should be in the same terms as the legislative exception for administrators appointed by VCAT. The Commission has therefore examined section 53 of the Guardianship and Administration Act to determine if it is the best way to provide for an exception to ademption for both administrators and persons acting under an enduring power of attorney.

4.42 In considering the most appropriate model for a legislative exception, the Commission has taken into account legislation in other jurisdictions. A legislative modification of the ademption rule applies to acts of substitute decision makers in South Australia, Queensland and New South Wales.

4.43 Section 53 of the Guardianship and Administration Act has proved to be an effective way of avoiding the effects of ademption where an administrator has sold property. The Commission has concluded that it should be retained with some modifications. The modifications would address the following issues:

• the ability of beneficiaries to seek relief where an act of an administrator in selling or disposing of a represented person’s property leads to an unjust outcome

• the treatment of income generated by sale proceeds

• account-keeping obligations

• the will-making capacity of represented persons.

4.44 These issues are discussed in the following sections. The Commission then proposes that an equivalent provision to section 53, as amended in accordance with its recommendations, should be introduced into the Instruments Act 1958 (Vic) for people acting under an enduring power of attorney.

Avoiding unjust outcomes

4.45 In New South Wales, there are legislative exceptions for actions of persons acting under an enduring power of attorney as well as for administrators.^[40] The exception for attorneys, at section 22 of the Powers of Attorney Act 2003 (NSW), is in broadly similar terms to section 53 of Victoria’s Guardianship and Administration Act. However, section 23 provides that, where this exception would result in one or more beneficiaries ‘gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage’ of a kind not contemplated in the will, the court may alter the effect of the provision.^[41] The legislative exception for administrators in New South Wales does not have this added feature that allows beneficiaries to apply to the court to alter the effect of the exception.

4.46 In South Australia, a beneficiary may apply to the Supreme Court where their share under a will has been affected by the actions of an administrator or a person acting under an enduring power of attorney. The court may make orders it thinks just to ensure that no beneficiary gains a disproportionate advantage or suffers a disproportionate disadvantage of a kind not contemplated by the will.^[42]

4.47 In Queensland, a person may apply to the court where their benefit in another person’s estate has been lost because of an action of an administrator or a person acting under an enduring power of attorney. The court may award compensation out of the will-maker’s estate.^[43]

4.48 The Commission’s consultation paper on wills sought views on whether any of these provisions would be preferable to section 53 of the Guardianship and Administration Act as a model for a legislative exception. Submissions generally supported the current section 53 as an exception to the ademption rule for actions of both administrators and persons acting under an enduring power of attorney.^[44]

4.49 Some also saw merit in Victoria introducing an additional provision, as exists in New South Wales for acts of attorneys, that would allow the court to vary the result under section 53 where a beneficiary gains an ‘unjust and disproportionate advantage’ or suffers an ‘unjust and disproportionate disadvantage’.^[45]

4.50 Participants at the Commission’s wills roundtable suggested such a provision could work well where, for example, the will originally had the effect of treating beneficiaries equally via specific gifts. ^[46]

4.51 Some submissions favoured the Queensland provision where the court may order ‘compensation’ from the estate based on the actions of a person acting under an enduring power of attorney if the ‘same interest’ cannot be achieved by a legislative exception to ademption.^[47] However, Moores Legal noted that this is not a jurisdiction of compensation and this terminology is therefore less appealing than the New South Wales model.^[48]

4.52 An ability to apply to the Supreme Court for an order where the operation of the ademption rule, or an exception to the rule, leads to a beneficiary ‘gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage’ would be a useful addition to the legislation. There would be no need for the substitute decision maker to know the contents of the represented person’s will and it would allow the court to later adjust the beneficiaries’ entitlements to better reflect the intentions of the will-maker.

4.53 The New South Wales provision only applies where the advantage or disadvantage occurs as a result of the legislative exception to ademption. However, a disproportionate result may also occur notwithstanding the application of the exception, as illustrated in examples 3 and 4 below.

4.54 The Commission therefore recommends that a beneficiary be able to apply to the Court in both circumstances—where the disproportionate result comes about due to the exception and where it comes about notwithstanding the exception.

Example 3: Disproportionate result notwithstanding a legislative exception to ademption

Mr Ling’s administrator spends all of the proceeds of the sale of the home unit on Mr Ling’s care before his death. Meanwhile, the value of Mr Ling’s investment unit has increased significantly since he made his will leaving it to his son.

The Commission’s recommendation would permit Mr Ling’s daughter to apply to the court for an adjustment to her and her brother’s benefit under the will, arguing that the will contemplated the two siblings being treated equally.

Example 4: Disproportionate result because of a legislative exception to ademption

In this example, instead of an investment unit, Mr Ling owns an investment portfolio of shares valued at a similar amount to his home unit. Mr Ling’s will leaves the home unit to his daughter and the rest of his estate (which includes the investment portfolio) to his son.

Mr Ling’s administrator sells the home unit and uses the proceeds to pay a nursing home bond. The administrator then spends all the proceeds of the investment portfolio on Mr Ling’s care. The nursing home bond is the only asset remaining in Mr Ling’s estate at his death and would go to his daughter.

The Commission’s recommendation would permit Mr Ling’s son to apply to the Court for an adjustment to his and his sister’s benefits under the will, arguing that the exception to ademption has led to an unjust and disproportionate disadvantage to him.

Recommendation

5 Section 53 of the Guardianship and Administration Act 1986 (Vic), which modifies the common law of ademption where an administrator sells or otherwise disposes of a represented person’s property, should be amended to allow a beneficiary under a will to apply to the Supreme Court for an order where:

(a) the exception would result in a beneficiary under the will gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage of a kind not contemplated in the will

(b) notwithstanding the exception to ademption, the outcome would result in a beneficiary under the will gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage of a kind not contemplated in the will.

The Court would make such orders and direct such conveyances, deeds and things to be executed and done as it thinks fit.

Treatment of income generated by sale proceeds

4.55 The Commission has been informed that a current area of uncertainty in the operation of section 53 is the treatment of income generated by sale proceeds. The section refers to ‘any money or other property arising from or received in respect of any sale’. It is not clear whether this includes interest on the proceeds of a sale that were not immediately used for the benefit of the represented person.

4.56 In New South Wales, section 83 of the NSW Trustee and Guardianship Act 2009, which is broadly equivalent to section 53 of the Guardianship and Administration Act, refers to ‘any surplus money and other property arising from any sale’. The New South Wales Court of Appeal has recently commented on whether a beneficiary’s entitlement includes interest that accrues on the net proceeds of sale of a specific gift.

4.57 In RL v NSW Trustee and Guardian ^[49] the Court considered the management of the proceeds of the sale of a garage that the owner, Ms PBL, left to a neighbour in the last will she made before losing capacity. Ms PBL had owned a home unit, associated with which was a car space and a garage. The unit was sold together with the car accommodation to fund her nursing home bond, and the agreed value of the garage at the time of sale was set aside.

4.58 While the Court did not need to determine the question of who would be entitled to the interest or any income on the proceeds, Justice Campbell stated that a finding that the neighbour would be entitled may be consistent with the legislation:

There seems to be legitimate room for argument about whether “surplus money … arising from any sale” in s 83 of the 2009 Act extends to income earned by the fund that is set aside between the time of sale and the time of PBL’s eventual death. The words “arising from” could be argued to envisage a causal enquiry—one asks what is the money that exists at the time of the testatrix’s death that the sale has caused to come into existence. If that construction is right the “surplus money” might extend to interest or other income derived from the net proceeds of sale.

Such a construction might also be argued to be broadly consistent with the policy of s 83, in that if the garage had remained in specie it would presumably have increased in value with time. It could be argued that, in a broad way, it would be administering the estate in a way that does the least damage to PBL’s intentions expressed in the will, in the changed circumstances where sale of the garage has been necessary to provide for PBL’s welfare, if the specific legacy were to attach to the net proceeds of sale, plus interest it earned, but minus any amount that is spent from that fund to make proper provision for PBL.^[50]

4.59 State Trustees put the view that the legislative exception to ademption should clarify what happens to any interest or growth on the proceeds of sale. In State Trustees’ view, the beneficiary of the specific gift should not be entitled to any interest but should be entitled to the actual sum received by the substitute decision maker less any amount spent on the person’s care.^[51] Carolyn Sparke SC stated that the actual value of the gift, including any growth or loss, should pass with the gift.^[52]

4.60 The Commission agrees that section 53 should clarify what happens to any traceable income earned on sale proceeds. In the Commission’s view, the beneficiary of the specific gift should be entitled to this income, as a specifically gifted item would usually increase in value if it had not been sold by the substitute decision maker. The following example illustrates the effect of the proposed amendment.

Example 5: Entitlement to traceable income

Mr Ling’s home unit is sold by his administrator for $400,000. The administrator uses $300,000 to pay a nursing home bond and invests the remaining $100,000 in a high interest savings account. Mr Ling’s daughter (the beneficiary of the home unit in Mr Ling’s will) will be entitled to the balance of this account, including interest, less any amount spent out of the account by the administrator on Mr Ling’s care during his lifetime.

Recommendation

6 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to provide that a beneficiary under a will to whom the section applies because an administrator has sold or otherwise disposed of the will-maker’s property is entitled to any traceable income generated by any sale proceeds.

Account-keeping obligations

4.61 Section 53(3) currently provides that an administrator who receives money or other property ‘under this section must keep a separate account and record’ of the money or property received.^[53]

4.62 The meaning of this obligation is not clear. There are various interpretations that could apply to this section. It could mean that:

• an administrator may simply keep a record of the sale, in a way that complies with an administrator’s general account-keeping obligations

• the proceeds received ‘under this section’ should be kept in an account that is separate to the represented person’s other assets

• the proceeds should be quarantined and not spent during the person’s lifetime except as a last resort.

4.63 In State Trustees’ view, there should be only an obligation to record and keep an account of transactions. There should not be an obligation to keep the funds in an account that is separate from the person’s other assets, as this could have a negative impact on the person’s finances while they are alive. A substitute decision maker may also be unaware of what is in the person’s will and thus not know that money or property was received under the section.^[54]

4.64 Moores Legal agreed that there should not be any specific or special accounting obligations where a substitute decision maker has sold specifically gifted property.^[55]

4.65 The Law Institute of Victoria proposed that substitute decision makers be required to retain the funds in a separate account and that these funds should be used last for payments required in the best interests of the represented person.^[56]

4.66 In the Commission’s view, section 53(3) should not be retained. In particular, there should be no requirement or implication that an administrator should quarantine the proceeds of any sale or spend these proceeds last. Keeping the funds separately may leave an insufficient amount to comfortably meet the needs of the represented person during their lifetime. An administrator should aim to deploy all assets in the best interests of the represented person during their lifetime, not be concerned with the possible entitlement of beneficiaries under the will.

4.67 Moreover, the administrator may be unaware of the terms of the will and therefore not know that money or other property received is received ‘under this section’. There should be no legislative requirement, consequence or implication that requires a substitute decision maker to know what is in the person’s will.

4.68 An administrator must lodge accounts each year with VCAT or another person appointed by VCAT. The accounts must provide ‘a full and true account of the assets and liabilities of that estate and all receipts and disbursements in respect of that estate.’^[57] These accounts will therefore provide a basis for an executor or court to determine entitlements under an amended section 53.

4.69 As noted earlier in this chapter, section 83 of the NSW Trustee and Guardianship Act 2009 is broadly equivalent to section 53 of the Guardianship and Administration Act. However, even though it does not contain an equivalent of section 53(3), it nonetheless has been interpreted as conveying an obligation to keep a separate account. In RL v NSW Trustee and Guardian the New South Wales Court of Appeal has found that:

by implication [section 83 of the NSW Trustee and Guardianship Act] gives rise to an obligation [on the administrator] to take steps to administer the estate in such a way that, on [the represented person’s] death, it will be possible to identify what is the ‘surplus’, if any, that s 83 then operates upon. … A convenient way of achieving that objective is to keep the net proceeds in a separate fund.^[58]

4.70 The Commission therefore recommends that section 53 be amended to explicitly state that there is no requirement for an administrator to keep any proceeds in an account that is separate from the represented person’s other assets.

Recommendation

7 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to:

(a) no longer require an administrator to keep a separate account and record of the money or other property received upon the sale or other disposition of the represented person’s property

(b) expressly state that an administrator is not required to keep any proceeds of the sale or other disposition of property separate from the represented person’s other assets.

Capacity and persons with administrators appointed

4.71 The legal test for the capacity to make a will is not the same as the test of capacity for the purpose of having an administrator appointed to manage a person’s financial affairs during their life. It is therefore possible that a person with an administrator may still retain the capacity to make a new will. Where a person’s estate and family affairs are simple, the courts have held that the person may change their will despite having an administrator appointed.^[59]

4.72 Given the difficulties in determining a person’s capacity at a particular date in the past after a person has died, the Commission recommends that an amended section 53 should apply to all acts of an administrator, regardless of whether the person had the capacity to change their will at the time the property was sold.

Recommendation

8 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to clarify that it applies whether or not the represented person had testamentary capacity at the time of the sale or other disposition of relevant property.

Acts by persons acting under an enduring power of attorney (financial)

Current law

4.73 Traditionally under the common law, the actions of an attorney have not been considered an exception to the ademption rule. However in recent years Victorian judges have recognised such an exception.^[60] In Simpson v Cunning, Justice Hargrave identified an exception but also called for legislative reform to clarify this issue:

The issue requires urgent legislative intervention to resolve any doubt. In the meantime, I would follow Re Viertel [a Queensland decision] and recognise a further exception to the ademption principle whenever there is an authorised sale by an attorney in circumstances where: (1) the deceased lacked testamentary capacity; (2) the Court is satisfied that the deceased, if possessed of testamentary capacity, would have intended the donee of the asset in the will to have the remaining proceeds of sale; and (3) the remaining proceeds of sale can be identified with sufficient certainty.^[61]

4.74 The effect of the exception identified by Justice Hargrave is illustrated in example 6 below.

Example 6: Common law exception to ademption

Mr Ling owns two units. In his will he leaves the unit he is living in (his home unit) to his daughter and the other unit (his investment unit) to his son. He leaves the rest of his estate (the residue) to his grand-daughter.

Prior to his death Mr Ling appoints his daughter as his enduring power of attorney (financial). His daughter sells Mr Ling’s home unit to pay a bond at a nursing home. Based on the common law rule, his daughter may be able to receive the refunded nursing home bond, as well as any other proceeds of sale that have not been spent on Mr Ling’s care, if:

– she applies to the Supreme Court

–

she can prove that Mr Ling lacked testamentary capacity at the time she sold the home unit

–

the proceeds of the sale can be identified with sufficient certainty (which would be the case with the bond but possibly not other proceeds)

–

she can demonstrate that her father would have intended her to have the proceeds if he had testamentary capacity.

4.75 The status of this common law exception is uncertain. It was originally recognised in a Queensland decision which has since not been followed in Queensland.^[62] The New South Wales Court of Appeal has also rejected the existence of an exception in these circumstances.^[63]

4.76 One key difference between an administrator and an attorney, is that depending on the terms of the enduring power, an attorney may be able to deal with a person’s assets while the person still has legal capacity to do so themselves.^[64] This issue is addressed further below.

National Committee for Uniform Succession Laws

4.77 The National Committee for Uniform Succession Laws considered the possibility of providing an exception to the ademption rule where the subject of a specific gift has been sold by an enduring attorney. It considered allowing the beneficiary to receive an amount equal to the net proceeds of sale of the property, which would be distributed in the same manner as if it were a specific gift.^[65] However, the National Committee did not make any recommendations, stating that the ademption rule as a whole should be reviewed as a discrete project.^[66] This project has not been undertaken.

A legislative exception to ademption

4.78 All submissions that addressed the issue agreed that a legislative exception to ademption should be enacted to deal with actions of attorneys.^[67] Most were supportive of a provision similar to section 53 of the Guardianship and Administration Act.^[68]

4.79 The Commission agrees that section 53, amended as recommended earlier in this chapter, is an appropriate model for a legislative exception for attorneys. It will provide certainty and ensure that the rights of beneficiaries under a will made by a person for whom a substitute decision maker has been appointed are consistent.

Account-keeping obligations

4.80 As with administrators, views in submissions varied on what the account-keeping obligations of an attorney who sells a specifically gifted asset should be.

4.81 State Trustees, Moores Legal and Carolyn Sparke SC stated that an attorney should not have any special accounting obligations in these circumstances.^[69] Accounting obligations already exist, and the attorney may not be aware of what is in the will. Carolyn Sparke SC noted that keeping funds in a separate account may impact negatively on the person’s financial affairs.^[70]

4.82 Other submissions proposed that attorneys be required to keep any sale proceeds in a separate account ^[71] and to use these funds as a last resort.^[72]

4.83 The Commission considers that, for the same reasons that it concluded that the accounting obligations for administrators should be removed from section 53 of the Guardianship and Administration Act, there should be no special or additional accounting obligations where an attorney sells an asset.

4.84 An attorney already has an obligation to ‘keep and preserve accurate records and accounts of all dealings and transactions’ made under the power.^[73] These records would therefore assist in the tracing of the proceeds of any otherwise adeemed gift.

4.85 As noted above, a recent New South Wales Court of Appeal decision has held that the relevant New South Wales provision in relation to administrators implies that funds must be identifiable and that this is to be achieved by putting the funds in a separate account. The Commission therefore recommends that an exception to ademption for attorneys states that there is no requirement that an attorney keep any proceeds of sale separate from the donor’s other assets.

Capacity

4.86 As noted above, an attorney may act while the person still has capacity, depending on the terms of the appointment.

4.87 The Australian jurisdictions that have legislative exceptions to ademption for actions of attorneys take different approaches to the issue of capacity. In South Australia, an application to court can only be made where the donor of the power had suffered a period of legal incapacity while the enduring power of attorney was in force.^[74]

4.88 In Queensland and New South Wales, the exceptions apply regardless of whether the donor of the power had testamentary capacity at the time of the sale or other dealing.^[75]

4.89 Views were mixed on whether a legislative exception should apply to any action of an attorney or only those actions taken once the donor has lost capacity.

4.90 The Law Institute of Victoria, the Office of the Public Advocate, Carolyn Sparke SC and Patricia Strachan supported an anti-ademption provision only where the donor had lost capacity at the time of the transaction.^[76] Submissions noted that the donor may alter their will if the donor still has capacity.^[77]

4.91 The Commercial Bar Association and State Trustees supported an exception regardless of whether the donor lacked capacity at the time.^[78] Reasons included:

• It will usually be difficult to determine whether the person had capacity at the time of the transaction.^[79]

• If the exception only applies once a person has lost capacity, the seller may feel the need to have a formal capacity assessment or a court ruling which could delay the transaction and not be in the best interests of the donor.^[80]

4.92 State Trustees noted that an action by an attorney where there is an express and contemporaneous written direction by the donor in relation to the sale would be subject to the usual rules of ademption. In this case the attorney is not the decision maker but is merely carrying out the decision made by the donor.^[81] The Commission agrees with this view.

4.93 The Commission agrees with submissions that support a legislative exception to ademption for any action of an attorney, not only those taken once the donor has lost capacity. Key reasons for this include:

• Determining whether the donor has capacity at the time the attorney needs to act will be time-consuming and any delay may not be in the person’s best interests.

• It avoids the need to determine a person’s capacity at the time of the disposition after the person has died, which may be a number of years later.

• It is consistent with the New South Wales provisions that the Commission has recommended should apply to anti-ademption provisions for substitute decision makers.

Recommendation

9 The Instruments Act 1958 (Vic) should be amended to provide an exception to ademption when property is sold or otherwise disposed of by a person acting under an enduring power of attorney (financial). The exception should align with the exception that will apply to administrators under section 53 of the Guardianship and Administration Act 1986 (Vic) as amended in accordance with recommendations 5–8, including:

(a) a right of beneficiaries under a will to apply to the court if the result is unjust

(b) no requirement that the attorney keep a separate account and record of the proceeds of the sale or other disposition

(c) no requirement that the attorney keep the proceeds of sale or other disposition separate from other assets owned by the donor of the power

(d) no requirement that the donor of the power be without will-making capacity at the time of the sale or other disposition.

Warning to donors of enduring powers of attorney (financial)

4.94 It would be desirable that donors of enduring powers of attorney (financial) be told at the time they create and confer an enduring power that dispositions pursuant to the power may impact on specific provisions in their will, and that, with this in mind, they should review the operation and effect of their will with a view to overcoming these difficulties. Such a warning could usefully be incorporated in the form pursuant to which enduring powers of attorney (financial) are conferred.

Access to a person’s will to prevent ademption

4.95 The Commission has recommended that a substitute decision maker should not have any special account-keeping obligations where the subject of a gift in a will has been sold. A substitute decision maker would thus not require access to a person’s will in order to comply with account-keeping obligations. However, access to a person’s will by a substitute decision maker may still be useful in cases where the decision maker has some choice over which assets to sell or how to deal with the person’s personal effects. Access to the person’s will may therefore assist in preventing ademption from occurring.

Current law

4.96 An attorney does not have the right to access a person’s will. In contrast, an administrator appointed by VCAT may open and read a will that they are in possession of.^[82] VCAT may open and read the will of any represented person.^[83] The Commission has recently recommended that this provision be extended to include the right to apply to VCAT for access to a will that is not in the administrator’s possession.^[84] VCAT would then be able to grant access where it is reasonable in the circumstances.^[85]

4.97 In its recent inquiry into powers of attorney, the Victorian Parliament Law Reform Committee reported mixed views on whether an attorney should be able to access a person’s will. It recommended further consultation on this issue.^[86]

Views from submissions

4.98 Most submissions supported a change to allow an attorney to access a person’s will in the same way as recommended for an administrator.^[87] Benefits included:

• The attorney may be able to avoid ademption if the attorney knows that a particular a piece of property has been left as a specific gift.^[88]

• The attorney may be able to manage the proceeds separately if he or she is aware of the specific gift.^[89]

4.99 Submissions generally agreed that an attorney should only be granted access to a will where the donor has lost capacity.^[90]

4.100 Other issues raised included:

• There is no need for a substitute decision maker to know who the beneficiary of a particular gift is, just that the particular property has been left as a gift. A redacted copy of the will may therefore be useful in preventing ademption while maintaining privacy for the represented person.^[91]

• It is important that VCAT be able to determine what, if any, details from the will it is appropriate to disclose. This is particularly important where the substitute decision maker is also a beneficiary under the will.^[92]

• An alternative could be to allow a holder of a will to provide a redacted copy of the will to a validly appointed attorney, on proof of lack of capacity.^[93]

Commission’s views and conclusions

4.101 The Commission agrees that an attorney should be able to access a person’s will in the same way as an administrator. While the Commission does not believe an attorney should be under any obligation to hold funds separately where a specific gift has been sold, knowledge of the person’s will may still be useful in preventing what would otherwise be an ademption and achieving greater fairness generally between beneficiaries. A substitute decision maker may be able to prevent ademption in the following circumstances:

• There is a choice of assets to be sold to fund the person’s care.

• There are specific gifts of sentimental items such as jewellery, artwork, family heirlooms, photographs or other items. The substitute decision maker can take reasonable steps to ensure that these items are not disposed of during the person’s life.

4.102 Where an application is made to VCAT, the Tribunal will be able to consider:

• whether the person has capacity

• whether access would assist the substitute decision maker in administering the person’s estate

• whether to provide a redacted or full copy of the will, particularly where a substitute decision maker is also a beneficiary.

4.103 The Commission believes an application to VCAT is more appropriate than giving the holder of the will a power to inform substitute decision makers about the content of a person’s will. A legal practitioner who holds a person’s will is doing so on a strictly confidential basis.

Recommendation

10 Guardianship legislation should provide for a person acting under an enduring power of attorney (financial) to apply to the Victorian Civil and Administrative Tribunal for a full or redacted copy of a will made by the donor of the power. The Tribunal would be able to grant access only where the donor does not have testamentary capacity.

1. Matthew Groves, ‘Adeptly Avoiding Ademption’ (2010) 84(8) Law Institute Journal 36, 39; Allan Swan and Chris Groszek, ‘The Widening Scope and Uncertainty of the Doctrine of Ademption’ (2012) 14 Retirement and Estate Planning Bulletin 138, 139 (‘The Widening Scope of Ademption’); Christopher Groszek, ‘Going Going Gone: Avoiding Ademption when Assets are Sold’ (2012) 11 Law Institute Journal 48, 52 (‘Going Going Gone’).

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2. See, eg, Re Viertel [1997] 1 Qd R 110; Simpson v Cunning [2011] VSC 466 (22 September 2011); Mulhall v Kelly [2006] VSC 407 (3 November 2006); NSW Trustee & Guardian v Bensley [2012] NSWSC 655 (4 June 2012); Public Trustee of Qld v Lee [2011] QSC 409 (19 December 2011); Power v Power [2011] NSWSC 288 (14 April 2011); Moylan v Rickard [2010] QSC 327 (6 September 2010); Ensor v Frisby [2009] QSC 268 (7 September 2009); Orr v Slender [2005] NSWSC 1175 (21 November 2005).

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3. Re Plowright [1971] VR 128.

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4. Ashburner v MacGuire [1786] 2 BRO. C. C. 62, 63; Rosalind Croucher and Prue Vines, Succession: Families, Property and Death: Text and Cases (LexisNexis Butterworths, 3rd ed, 2009) 470.

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5. In order to avoid this result, Mr Ling could make a new will after the sale or specify in the original will that the gift of the unit includes any proceeds of sale of the unit.

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6. Alberta Law Reform Institute, Wills and the Legal Effect of Changed Circumstances, Final Report No 98 (2010) 151; Christina Walsh, ‘A Costly Application of Strict Statutory Construction: The Ohio Supreme Court’s Interpretation of Ohio’s Nonademption Statute’ (1996–7) 28 University of Toledo Law Review 631, 631.

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7. Walsh, above n 6, 634.

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8. Re Plowright [1981] VR 128; McBride v Hudson (1962) 107 CLR 604, 616–19.

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9. Moylan v Rickard [2010] QSC 327 (6 September 2010).

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10. Oakes v Oakes [1852] 68 Eng Rep 680, 683; Slater v Slater [1907] 1 Ch 665, 672; McBride v Hudson (1962) 107 CLR 604; Pohlner v Pfeiffer (1964) 112 CLR 52, 79; Re Blake (2009) 25 VR 27, 35 [43]; RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012); NSW Trustee and Guardian v Ritchie [2011] NSWSC 715 (4 July 2011).

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11. Mary Lundwall, ‘The Case Against the Ademption by Extinction Rule: A Proposal for Reform’ (1993–94) 29 Gonzaga Law Review 105, 112; Rosalind Croucher and Prue Vines, Succession: Families, Property and Death: Text and Cases (LexisNexis Butterworths, 3rd ed, 2009) 470; Note, ‘Ademption and the Testator’s Intent’ (1961) 74 Harvard Law Review 741, 744.

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12. Jenkins v Jones (1866) LR 2 Eq 323, 328; Earl of Shaftsbury v Countess of Shaftsbury [1716] 2 Vern 748; Power v Power [2011] NSWSC 288 (14 April 2011); Johnston v Maclarn [2002] NSWSC 97 (27 February 2002) [17]; Banks v National Westminster Bank [2005] EWHC 3479 (Ch) [10], [29]; RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012).

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13. Power v Power [2011] NSWSC 288 (14 April 2011).

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14. Alberta Law Reform Institute, above n 6, 153; Note, ‘Ademption and the Testator’s Intent’ (1961) 74 Harvard Law Review 741, 741.

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15. Victorian Law Reform Commission, Succession Laws: Wills, Consultation Paper No 11 (2012) 48.

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16. Those in favour of an intention approach with a presumption against ademption included: submissions 8 (Patricia Strachan); 25 (Moores Legal). Those in favour of an intention approach with a presumption in favour of ademption included submissions 14 (Commercial Bar Association) and 32 (The Institute of Legal Executives).

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17. Submission 14 (Commercial Bar Association).

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18. Submission 25 (Moores Legal).

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19. Ibid.

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20. Submissions 14 (Commercial Bar Association); 25 (Moores Legal).

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21. This includes: some members of the Advisory Committee, submissions 30a (Law Institute of Victoria); 21(Office of the Public Advocate); 33 (State Trustees Limited); 36 (Law Society of New South Wales); 38 (Liz Burton); 39 (Carolyn Sparke SC).

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22. Advisory Committee (Meeting 2).

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23. Ibid.

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24. Submission 30a (Law Institute of Victoria).

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25. Submission 32 (The Institute of Legal Executives).

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26. Submission 39 (Carolyn Sparke SC).

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27. Submission 33 (State Trustees Limited).

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28. Ibid.

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29. Submissions 8 (Patricia Strachan); 25 (Moores Legal); 32 (The Institute of Legal Executives).

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30. Submissions 30a (Law Institute of Victoria); 33 (State Trustees Limited).

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31. Guardianship and Administration Act 1986 (Vic) s 46(1)(a).

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32. Instruments Act 1958 (Vic) s 117.

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33. Simpson v Cunning [2011] VSC 466 (22 September 2022) [45]; Groves, ‘Adeptly Avoiding Ademption’, above n 1, 36; Swan and Groszek, ‘The Widening Scope of Ademption’, above n 1, 138.

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34. Simpson v Cunning [2011] VSC 466 (22 September 2011) [45].

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35. Groves, ‘Adeptly Avoiding Ademption’, above n 1, 39; Swan and Groszek, ‘The Widening Scope of Ademption’, above n 1, 138.

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36. Groves, ‘Adeptly Avoiding Ademption’, above n 1, 38.

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37. Ibid.

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38. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills, Queensland Law Reform Commission Miscellaneous Paper No 29 (1997) 113; Walsh, above n 6, 649–50, 657–8.

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39. Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) 267 (‘Guardianship Final Report’).

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40. Powers of Attorney Act 2003 (NSW) s 22–3; NSW Trustee and Guardian Act 2009 (NSW) s 83.

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41. Powers of Attorney Act 2003 (NSW) s 23.

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42. Powers of Attorney and Agency Act 1984 (SA) s 11A; Guardianship and Administration Act 1993 (SA) s 43.

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43. Powers of Attorney Act 1998 (Qld) s 107; Guardianship and Administration Act 2000 (Qld) s 60.

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44. Submissions 25 (Moores Legal); 30a (Law Institute of Victoria); 33 (State Trustees Limited); 39 (Carolyn Sparke SC).

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45. Submissions 25 (Moores Legal); 30a (Law Institute of Victoria); 39 (Carolyn Sparke SC).

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46. Consultation 1 (Wills roundtable).

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47. Submissions 8 (Patricia Strachan); 14 (Commercial Bar Association).

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48. Submission 25 (Moores Legal).

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49. [2012] NSWCA 39 (19 March 2012).

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50. RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012) [108].

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51. Submission 33 (State Trustees Limited).

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52. Submission 39 (Carolyn Sparke SC).

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53. Guardianship and Administration Act 1986 (Vic) s 53(3).

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54. Submission 33 (State Trustees Limited).

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55. Submission 25 (Moores Legal).

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56. Submission 30a (Law Institute of Victoria).

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57. Guardianship and Administration Act 1986 (Vic) s 58.

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58. RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012) [94].

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59. Edwards v Edwards (2009) 25 VR 40.

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60. Mulhall v Kelly [2006] VSC 407 (3 November 2006); Simpson v Cunning [2011] VSC 466 (22 September 2011).

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61. Simpson v Cunning [2011] VSC 466 (22 September 2011) [46].

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62. See The Trust Company Limited v Gibson [2012] QSC 183 (29 June 2012) [27].

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63. RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012) [148]–[187].

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64. Instruments Act 1958 (Vic) s 117.

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65. National Committee for Uniform Succession Laws, above n 38, 113.

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66. Ibid 113–14.

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67. Submissions 8 (Patricia Strachan); 14 (Commercial Bar Association); 21 (Office of the Public Advocate); 30a (Law Institute of Victoria); 33 (State Trustees Limited); 39 (Carolyn Sparke SC).

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68. Submissions 25 (Moores Legal); 30a (Law Institute of Victoria); 33 (State Trustees Limited); 39 (Carolyn Sparke SC).

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69. Submissions 25 (Moores Legal); 33 (State Trustees Limited); 39 (Carolyn Sparke SC).

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70. Submission 39 (Carolyn Sparke SC).

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71. Submissions 8 (Patricia Strachan); 14 (Commercial Bar Association); 30a (Law Institute of Victoria).

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72. Submission 30a (Law Institute of Victoria).

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73. Instruments Act 1958 (Vic) s 125D.

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74. Powers of Attorney and Agency Act 1984 (SA) s 11A(1).

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75. Powers of Attorney Act 1998 (Qld) s 107; Powers of Attorney Act 2003 (NSW) ss 22–3.

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76. Submissions 8 (Patricia Strachan); 21 (Office of the Public Advocate); 30a (Law Institute of Victoria); 39 (Carolyn Sparke SC).

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77. Submissions 30a (Law Institute of Victoria); 32 (The Institute of Legal Executives).

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78. Submissions 14 (Commercial Bar Association); 33 (State Trustees Limited).

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79. Submission 14 (Commercial Bar Association); consultation 1 (Wills roundtable).

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80. Consultation 1 (Wills roundtable).

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81. Submission 33 (State Trustees Limited).

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82. Guardianship and Administration Act 1986 (Vic) s 58G.

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83. Ibid s 54.

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84. Victorian Law Reform Commission, Guardianship Final Report, above n 39, 266.

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85. Ibid.

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86. Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (2010) 159.

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87. Submissions 6 (Victorian Civil and Administrative Tribunal); 14 (Commercial Bar Association); 25 (Moores Legal); 30a (Law Institute of Victoria); 32 (The Institute of Legal Executives); 33 (State Trustees Limited). Carolyn Sparke SC did not support this change: submission 39.

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88. Consultation 1 (Wills roundtable).

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89. Submission 25 (Moores Legal).

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90. Submissions 14 (Commercial Bar Association); 21 (Office of the Public Advocate); 25 (Moores Legal); 30a (Law Institute of Victoria). The Institute of Legal Executives stated that the incapacity should be expected to continue, as opposed to a short-term trauma situation: submission 32.

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91. Consultation 1 (Wills roundtable).

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92. Submission 33 (State Trustees Limited).

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93. Submissions 30a (Law Institute of Victoria); 33 (State Trustees Limited). In State Trustees’ view, the holder of the will should be authorised to provide information on specific gifts but not on who the beneficiaries are.

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