Legal Hypothetical: Failure of gift leads to five year delay

Failure of gift leads to 5 year delay

JOHN worked hard throughout his life, earning a modest wage and comfortably providing for himself.

John was an only child and never married nor had children.

The only family that John had contact with were two of his first cousins, Sarah and Rhianna, who John saw regularly.

Although John was relatively cash poor in retirement, he was considered asset rich and had a net worth of about $2 million, having purchased a large block with a small fibro house located close to the beach, in the early 1970’s.

John intended to sell his house to downsize and rent a smaller unit.

John assumed that, when he sold the house, his estate will only be comprised of a cash in his bank account so he made a Will which gifted “the cash in my bank account to my cousins Sarah and Rhianna”.

He also named Sarah and Rhianna as his executors.

John passed away suddenly but peacefully in his sleep, before he had marketed his property for sale.

At the date of his death, John had $3,000 in his savings account.

Sarah and Rhianna are advised by their solicitor that they are only entitled to $1,500 each and that the remainder of John’s estate must be dealt with in accordance with the rules of ‘intestacy’. In this particular case, all of John’s first cousins were entitled to an equal portion of the estate.

Sarah and Rhianna were furious.

Not only did they not have any contact with most of the cousins, they did not think that it was fair that people who had nothing to do with John in his lifetime should receive any provision from his estate.

The estate was not finalised until five years after John’s death due to difficulty tracking down all of his cousins.

John’s situation highlights the importance of proper estate planning, particularly where one does not have any surviving immediate family members.

Thank you to Jamie Visco for his assistance with this column.

Email Manny Wood, Principal Solicitor at TB Law at or call him on (02) 66 487 487.

By Manny WOOD, Solicitor

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