Occasionally, a will-maker’s assets might be dealt with by someone under a power of attorney that then affects what will happen under that person’s will when they die.
A person’s will may give specific items to certain people, but if that asset no longer exists at the time that person dies and there is no alternate provision in the will, then the gift in the will may no longer apply.
However, where it was the will-maker’s attorney (ie. the person appointed and acting under the will-maker’s enduring power of attorney) who dealt with the will-maker’s asset while the will-maker was incapacitated, then particular people might be able to apply to the Court to have this problem resolved.
The law says that where:
- a maker or former maker of an enduring power of attorney (known as the “donor”) dies leaving a will; and
- the donor suffered a period of legal incapacity while the enduring power of attorney was in force; and
- it appears after the donor’s death that a person using the enduring power of attorney during that time affected the share of a beneficiary under the will,
then certain persons may be able to make an application to the Court to have this issue rectified.
The Court can make orders so that no beneficiary gains a disproportionate advantage or suffers a disproportionate disadvantage of a kind not contemplated by the will.
For example, if a will-maker gave their house to a specific beneficiary under their will, and then the attorney (being the person appointed to act by the will-maker under the will-maker’s enduring power of attorney) sold the house during a time that the will-maker was suffering a legal incapacity, then the beneficiary would likely be disproportionately disadvantaged because the house would no longer exist at the time of death. The beneficiary, without any Court orders, would miss out on receiving the house that was left to them because the house had been sold by the attorney.
A house might be sold by an attorney to fund a move into aged care for example, and the will-maker may not have considered or made provision in their will for what should occur to the gift of the house if it this occurred.
It then makes sense for that beneficiary or another interested person to apply to the Court to have this issue rectified.
Any orders made the Court will be treated as if the contents or terms of the order had been made by a codicil to the will (ie. a binding document altering part of a will) immediately before the will-maker’s death.
Such an application to the Court must be made within six months from the date that probate or letters of administration is granted, or at such further time as permitted by the Court. It is important, however, to act very promptly in relation to making such an application to reduce the likelihood of the estate being distributed early.
Get in touch with us
If you feel you might have been affected by an attorney under an enduring power of attorney or are unsure about the actions or role of an attorney, you should seek legal advice as soon as possible. Contact us on 8213 1000 to discuss.
