Entitlements & expectations

What property can be given or disposed of by will?

Entitlements

Generally all property (real and personal property) to which a person is entitled at the time they die can be disposed of or given away in a will.  This is provided for by state and territory wills and succession statutes. 

All the statutes have similar wording.  See for example section 4 of the Succession Act 2006 (NSW): ‘What property may be disposed of by will’ which states:

(1)   A person may dispose by will of property to which the person is entitled at the time of  the person’s death.
(2)   Subsection (1) applies whether or not the entitlement existed at the date of the making of the will.
(3)   A person may dispose by will of property to which the person’s personal   representative becomes entitled, in the capacity of personal representative, after the person’s death.
(4)   Subsection (3) applies whether or not the entitlement existed at the time of the person’s death.
(5)   A person may not dispose by will of property of which the person is trustee at the time of the person’s death.

The South Australian Wills Act 1936 provision s 4(1), ‘All property may be disposed of by will’ of the Wills Act 1936 (SA) can be viewed here.

Links to other states and territories statutes on Austlii are available from the Links – Legislation page here.

To be entitled to property means holding the right/s or interests to it in a personal name.

More information on property ownership and will-making – what can and can’t be disposed of by will can be found here.

Hopes and expectations cannot be disposed of by will

A hope or expectation of receiving something (such as an inheritance) from someone else cannot be dealt with in a will while that person is still alive.

B Stead
BHS Legal
5 April 2014