Personal possessions – interpreting their meaning and entitlements

Posted on 1 Oct 2016 by BHS Legal

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).

“Issue children” – some issues with words

Posted on 17 May 2016 by BHS Legal

For more on this topic see: ‘‘My issue” – considering the meaning of issue in wills’

“Issue children” was used to describe a class of beneficiaries in a will. But it wasn’t clear what was intended and ultimately required resolution by the Court. We make a will so as to provide for our loved ones; to be able to choose who will inherit our property. But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy. For example the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children. More considerations on its meaning can be read here.

In a recent case a gift in remainder of real estate under a will had to be distributed.¹ The will-maker had died in 1948. The two trustees of the estate were the surviving children of the will-maker’s only son, deceased. Their sister had pre-deceased their father, leaving children of her own.
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Renouncing or resigning from executorship and probate – when an executor does not wish to act

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Posted on 19 Jan 2016 by BHS Legal

Updated 5 October 2019

Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role. You are not obliged to, but you need to take steps to put that into effect as soon as practical.

Need help? For executor services you can find a lawyer or law firm by contacting the law society in your state/territory for referrals, click here, or the public trustee here. Corporate providers such as banks also offer executor services.

Can an executor resign?
There is no requirement that a named executor in a will must accept the role of executorship, even if you had agreed with the willmaker that you would.

So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.

If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so. It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning. It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.