Personal items otherwise referred to as chattels in deceased estates can have important sentimental value. For example family heirlooms passed down within the family can have unique stories and a special meaning. While of much sentimental value they may have little commercial value depending on their nature. On the other hand items like jewellery, valuable antiques, artworks and the like can have significant monetary worth. In those instances it is important they are expertly valued and insured. Personal items of particular value and/or sentimentality may be included in a will. Or listed in a separate document which might be referred to in the will.
Meaning of “personal items” in succession law?
What might “personal items” mean in succession law? What happens if you don’t leave any instructions as to who takes your personal things and you die intestate? Who is entitled under the law to take your personal items then?
You might think it unnecessary to discuss “personal effects” as it seems self-explanatory as to what they are. However personal items can lead to problems for executors or administrators in distributing a deceased estate. Even if a will was left uncertainties over valuable objects may exist. Because of the very personal, individual nature of such items, family members can hold strong attachments. In addition there are questions of monetary value, especially for jewellery. To manage the potential for disputes it is helpful if will makers can document who they wish to receive what. Or even give it to their preferred recipient while alive.
Personal items, effects, chattels
Personal items, personal property, our personal possessions, belongings, personal effects, things, our “stuff” are some expressions we might use in everyday language about the things we use individually. In succession law the words personal effects or personal chattels are used depending on the jurisdiction (state or territory). Either way case law describes them as tangible things. That is objects you can see and touch. Things which the deceased used, had a personal connection to.
The meaning of personal effects in a will – the context
Under the general (common) law courts have said that the meaning of personal effects or similar expressions when used in a will take their meaning from the will. In other words the meaning of such words is drawn from by the context in which they appear in that will. Sound confusing?
A controlling context – determining the meaning of a personal item in a will
Context refers to any additional words the willmaker may have chosen in their will. This is done to convey their intentions as to what they want done with their personal possessions. For example if someone wants particular personal items to go to specific beneficiaries then this should be clearly stated in their will. This is helpful to their executors so they are not left in any doubt about what was intended. In this way the will document itself sets the circumstances in which the personal items are to be distributed. Its what the law refers to as a ‘controlling context‘ to the meaning of the willmaker’s personal effects.
No controlling context
But what if there is no controlling context? If there is nothing specific about personal effects, interpreting their meaning may be taken to mean physical chattels which have some personal connection with the testator. Articles of a personal or domestic use or ornament, jewellery, clothing, furniture, and so on.1
An expanded explanation is given from a judge in South Australia2:
Expressions such as ‘personal belongings’, ‘personal effects’, and ‘personal possessions’, have been given widely different meanings in the cases, depending upon the context and surrounding circumstances.”
In some cases he quoted “the connotation was in the circumstances so wide as to cover, in effect, the whole of the personal estate of the testator.” Then in other cases it was held that where there was no controlling context, the words:
“…. should be taken to include only those things that can properly be treated as personal effects, that is to say, physical chattels having some personal connection with the testator such as articles of personal or domestic use or adornment, clothing, furniture and so forth…...”
Meaning of personal effects – New South Wales
In a New South Wales3 case the deceased left a will in which he appointed his children by his first marriage as his executors, his wife having predeceased him. By separate clauses he gave his household furniture, furnishings and personal effects to his (second) wife. His executors were to distribute any family heirlooms, photographs and private papers.
His wife sought further provision from the estate. In addition she asked the Court to interpret a clause in the will about the deceased’s personal effects. She argued that she was entitled to the motor vehicle, shares, cash in bank accounts, term deposits and other finances. It was not clear to the executors what these words meant in the will and what the deceased intended.
Construing what the testator meant
The Judge said the Court’s task was to construe what the testator intended by the words “personal effects”. The evidence disclosed to the Court revealed that the estate comprised money in bank accounts, term deposits, shares, real estate and a car. It did not include any furniture, household contents or accessories.
Consequently in his view it was not that there were no furniture, clothing, watches, accessories or appliances, it being a large estate – but that such things had not been completely disclosed. He said (bold emphasis added):
When the meaning of a will or part of it, is unclear, it usually has to go before a Court of Probate to be interpreted by a judge. This is known as a construction suit, and the Court is then referred to as a Court of Construction.
A substantial body of law has developed over time from such cases resulting in legal principles and rules to be followed in the common law tradition. These rules are referred to as the rules of construction.
Interpreting the meaning of ‘personal effects’ in a will
The question for determination was the meaning of ‘personal effects’ in the will. The Judge said its meaning was informed by the context in which these words appeared in the will. The preceding words in the clause were “household furniture and furnishings”. Other items of a personal nature were in a different clause.
The Judge cited the leading authority on “personal effects”, Joseph v Phillips [1934] AC 348 which characterised “effects” as “physical chattels”; excluding money in bank accounts.
After reviewing the authorities he concluded that the definition of ‘personal effects’ is physical chattels which have a personal connection with the testator and that the gift of “personal effects” included the motor vehicle but not the deceased’s cash, in bank accounts or on term deposit, shares or notes.
“Personal effects” in Queensland
In a Queensland case involving personal effects the Court said the meaning depended on the context of its use in the will and what other words were used. If the will said nothing else about such items then ‘personal effects’ meant the physical items that had a personal connection with the willmaker. For example articles of a personal, individual or domestic use or ornament, clothing, furniture and so on.4
Personal items in the house and surrounding farm sheds
In this case the executors asked the Court to interpret a will and codicil. The question was whether certain vehicles were ‘personal effects’ within the meaning of the will. Or were they simply ‘contents’ or part of the residue? Residue is all that is left over in the estate after payment of debts and specific gifts made. Similarly were the sale proceeds of other goods which had been in farm sheds also personal effects?
Referring to the context of the will the Court found that the meaning of ‘personal effects’ only included things inside the house. In this situation the items in the surrounding farm sheds were not ‘personal effects’. These items were largely farming memorabilia. The Court said they were not, on a proper construction of the relevant clause of the will items within the term “personal effects”. The Court said that “ personal effects ”:
..must be viewed in the context of the balance of the words in that clause. Those words specifically relate to items in the homestead.. The reference to personal effects should have a construction that refers to physical chattels having a personal connection with the deceased located in the homestead…4
A vehicle used in a farming operation
In another early case of a farming operation a motor vehicle used in the farming business was included in a gift of “farming effects”. It was argued this was because the vehicle was being used and regarded as part of the farm equipment and machinery.
These examples show the importance of making it clear in your will who is to take any cars or other motor vehicles you may have.
Problems with ‘home made’ documents – “belongings”
In another case the word “belongings” was used by the deceased when making their informal will.5 The Judge noted that this expression had been used in a number of cases.
However he emphasised that while instructive, the “..task is to ascertain what the testator intended by the words he used.” While it maybe tempting to write out your testamentary instructions for your property and things at home, and sometimes circumstances are such that this is the only option, it can lead to difficulties later to fix. Fixing mistakes in wills can be at considerable time and cost. By comparisons to these costs, the cost of making a will is relatively small.
What if you don’t leave a will – who is entitled to your personal items?
If you die without leaving a will, you are said to die intestate. In an intestacy the deceased’s property and things are then distributed according to a set of rules as there is no will saying what to do. The rules of intestacy are prescribed by various succession statutes in each state and territory. These are not exactly the same although generally follow a similar hierarchy. A brief outline with regard to personal effects follows with links. You should seek legal professional assistance if you have a loved one who has passed away and not left a will.
The meaning of ‘personal effects’ in New South Wales
In New South Wales s 101 of the Succession Act 2006 (NSW) defines “personal effects” of an intestate as their tangible personal property except the following:
(a) property used exclusively for business purposes,
(b) banknotes or coins (unless forming a collection made in pursuit of a hobby or for some other non-commercial purpose),
(c) property held as a pledge or other form of security,
(d) property (such as gold bullion or uncut diamonds):
(i) in which the intestate has invested as a hedge against inflation or adverse currency movements, and
(ii) which is not an object of household, or personal, use, decoration or adornment,
(e) an interest in land (whether freehold or leasehold).
Spouses entitlements are set out under Part 4.2 of the Succession Act 2006 (NSW). In NSW the statutory order of entitlements with respect to personal property can depend on whether or not there are multiple spouses and whether or not there are issue of the surviving spouse. Issue is a legal term in succession law. You can read more about issue here.
Personal effects and intestacy
In New South Wales a deceased died intestate (no will).6 The legal rules on intestacy under Chapter 4 of the Succession Act 2006 in NSW applied to the distribution of his estate.
Various family members of the deceased made competing claims on the estate for provision. The deceased had been married twice. He had five children from his first marriage and none from the second. Divorce from his second wife had not been finalised.
With regard to the distribution of his personal effects the first wife’s claimed that she had been in a de facto relationship with deceased before he died. This was dismissed by the Court. While the deceased and the second spouse had divorced, this was not yet finalised in law. Therefore the Court said she was entitled to take the deceased’s personal effects.
Personal things in Victoria
In Victoria “personal chattels” are defined under s 5 of the Administration and Probate Act 1958 (VIC) to mean:
“..carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornament musical and scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money;”
The personal chattels of someone dying intestate in Victoria are distributed according to the statutory rules under Division 6 of the Administration and Probate Act 1958 (VIC).
Personal chattels in South Australia
In South Australia if someone dies without leaving a valid will, their personal chattels are defined by s 72B of the Administration and Probate Act 1919 (SA), to mean:
(a) any articles of household or personal use or ornament that form part of his intestate estate; and
(b) any motor vehicles that form part of his intestate estate,
but does not include any chattels used for business purposes;
Note that chattels used in a business are dealt with separately to personal ones. When a deceased is survived by a spouse and/or domestic partner their personal chattels are distributed according to s 72H of the Administration and Probate Act 1919 (SA). So a surviving spouse or domestic partner surviving is entitled to the personal chattels.
It becomes a bit more difficult if the intestate leaves a spouse and a partner. The spouse and partner are entitled to an equal share. However if they don’t get along and have a dispute, the administrator may sell the personal chattels and divide the proceeds equally between them.
Personal things in the Northern Territory
In the Northern Territory the right of a spouse or de facto partner to the personal chattels of someone who has died intestate is given by s 67 of the Administration and Probate Act 1969 (NT). It permits the surviving spouse/de facto partner to take the personal items. If there is a spouse and a de facto partner, particular requirements are to be met in working out who takes in those circumstances.
Personal items and intestacy in the ACT
If you live in the ACT and die without a will (die intestate), s 49A of the Administration and Probate Act 1929 (ACT) provides for the interest of a partner in the deceased’s personal chattels. It states that a surviving partner is entitled to take absolutely.
Personal chattels are defined under s 44 of the Administration and Probate Act 1929 (ACT) to mean that below. However note this does not include chattels used for business purposes nor money nor securities of the intestate person. Section 44 states:
(a) the articles of household or personal use or adornment, plated articles, china, glassware, pictures, prints, linen, jewellery, clothing, books, musical instruments or apparatus, scientific instruments or apparatus, wines, liquors, consumable stores and domestic animals of the intestate; and
(b) the motor cars and accessories of the intestate;
Household items in Queensland
In Queensland s 34A of the Succession Act 1981 (QLD) defines household chattels includes and what is not:
(1) Household chattels means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors, wines, consumable stores and domestic animals owned by the intestate immediately before the intestate’s death.
(2) Household chattels does not include a motor vehicle, boat, aircraft, racing animal, original painting or other original work of art, trophy, clothing, jewellery, or other chattel of a personal nature.
The meaning of personal things in Tasmania
In Tasmania, s 3 of the Administration and Probate Act 1953 (TAS) details a number of items as to being personal items. It states that unless there is a contrary intention, (in a will),
personal chattels means carriages, horses, stable furniture and effects, motor-cars and accessories, garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, but does not include any chattels used at the death of the intestate for business purposes, nor money or securities for money;
Personal property and dying without a will in WA
In Western Australia the situation is similar to others. The property entitlements of the family of someone dying without a will are tabulated in s 14 of the Administration Act 1903 (WA). These rules apply to all property including household chattels.
Household chattels or items
The legislation defines the term Household chattels to mean ‘articles of personal or household use or adornment’. Surviving spouses and partners are entitled to all household chattels of the deceased’s property.
What if an item is sold during one’s lifetime?
With any gift of property made in a will there is one thing to keep in mind. What happens if this is forgotten and the item being gifted is sold, given away, stolen or destroyed? It means the gift fails (lapses in law) and the beneficiary gets nothing. Unless of course the will is updated with a codicil, if it is a straightforward matter or a new will made.
Fire, flood, theft, moving house – keep the ill updated
Personal objects can be lost in moving house, through theft, fire and flood. The will needs to be updated soon after but often such things are overlooked and the intended beneficiary misses out. In law the gift is said to ‘lapse’. Regular reviews of your will are therefore important.
Making a list – a letter or statement of wishes
Instead of listing personal items in the will some people prepare a list of particular things in a separate document. Preparing a document like this can be helpful to executors. It is a way for the willmaker to express their wishes as to who they would like their personal items to go to. These might be a family heirloom, an item of furniture, a special collection, jewellery and so on. A small photograph of the object might also be included. For particularly valuable items a certification of valuation might be added or referenced and kept updated from time to time as appropriate. This document may be called a letter of wishes, statement of wishes or similar and signed by the willmaker. It can be helpful to beneficiaries and to executors, personal representatives later on.
Not testamentary
These types of documents should be titled to the effect that it is not a testamentary document but it is to assist the executors. Such documents can be kept with the will but not attached. Lists of this nature can be changed and updated as time passes.
Sometimes a statement may be made in the will that it is the willmaker’s wish their executor distribute their personal items in accordance with any list prepared by the willmaker, signed by them and stored with the will or among their private papers.
Making specific gifts of personalty
Some people wish to leave a particular thing to a particular person. The item could be given to that person personally while the giver is alive. Or by saying so, stating one’s wishes in a valid will. Seek professional legal advice for your situation, make a will.
The residue or residuary estate
The residue of an estate is that estate property remaining after the deceased’s debts and specific gifts made to beneficiaries. It is distributed by the executors according to the willmaker’s instructions in the will for the residue.
Personal effects generally and not otherwise disposed of specifically by the will form part of the residuary estate. The residuary estate is called in by the executors and distributed to the beneficiaries in accordance with the terms of the will.
Anything not accounted for fall into residue of the estate and are then distributed according to the willmaker’s instructions.
Avoid ambiguity
Finally, as with anything in succession and inheritance everyone’s situation is different. Try to avoid ambiguity with what is to be done with individual belongings. It can greatly assist your executors when the time comes.
1. Lowe v Lowe [2015] NSWSC 48, citing Jarman on Wills (8th ed.), at p. 1294.
2. Public Trustee v Young (1980) 23 SASR 239, Jacobs J said (at 248-249).
3. Lowe v Lowe [2015] NSWSC 48
4. Ashton & ors v Ashton & Ors [2010] QSC 326
5. Public Trustee v Alexander – Estate of Alexander [2008] NSWSC 1272
6. In the Estate of the late Anthony Marras [2014] NSWSC 915
B Stead BHS Legal, updated July 2023
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