Personal possessions – interpreting their meaning and entitlements

personal possessions, deceased estate, will making, Personal possessions, personal items, belongings or effects and similar expressions are often used by willmakers to leave instructions on what they want done with such things.

The executor’s role is to administer the estate of a deceased person in accordance with the terms of their will.  The case law shows that occasionally a term causes uncertainty for an executor as to what the willmaker intended in their choice of words or expressions.  What did they mean? What did they want to have happen, and how may their executor or personal representative resolve this dilemma with confidence that they are doing the right thing?

Executors seeking advice

If faced with a difficult dilemma as to what to do, executors can apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of trust property, under s 63 of the Trustee Act 1925 (NSW).

Personal possessions bequeathed in a will – what is included?

Recently an executor lodged such an application in the Supreme Court of New South Wales about the distribution of the deceased’s “personal possessions”, among other matters.

In his will the deceased gave (bequeathed) a particular beneficiary the “choice of up to twenty five of my personal possessions”.  The beneficiary made his choices, however, issues arose for the executor, as to what the deceased meant to be regarded as his personal possessions and what were not.

Issues with the personal possessions
The two issues put to the Court for advice were:

  1. Whether certain cars of the deceased, which had been used for personal purposes and not commercial, were “personal possessions”; and
  2. Whether some possessions could be grouped together as a set so as to count as one or whether they should be counted individually.  Examples given were the deceased’s coins, toy soldiers and books.

Personal effects are physical things with a personal connection
The Judge referred to previous decisions of the Court and others, where “personal effects” were physical chattels having a personal connection with the testator.  And similar expressions had been held to include a car. 

The Judge said that in his opinion it was open to the Executor to believe that the cars were among the personal possessions and that the beneficiary was entitled to choose them, as part of the choice available to him under the will.

On the second issue, and declining to advise on individual items nominated by the beneficiary, the Judge thought it sufficient to advise the Executor that he was justified in treating as a single personal possession any grouping of things, which in the Executor’s opinion clearly formed a set or sub-set.

It is is a reminder to take care in the choice of words when making such gifts (bequests) by will – to try and make intentions clear so as to assist personal representatives in their task.  The last thing anyone wants is a costly application to the Court, causing delay and taking up time.

Latham as executor of the estate of the late  W L Mayo [2016] NSWSC 1811
Lowe v Lowe [2015] NSWSC 48

B Stead
BHS Legal

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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