Updated 3 December 2020
Personal items otherwise referred to as chattels in deceased estates can have important sentimental value. For example family heirlooms with unique stories are passed down within the family. Personal items may have much sentimental value but little commercial value. Or maybe of significant monetary worth in the case of jewellery, antiques, artworks and the like. Personal items of particular value and/or sentimentality may be included a will. Or listed in a separate document which might be referred to.
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. Personal effects can be at the centre of disputes, sometimes ending up in court although usually in conjunction with other issues.
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. Either way case law describes them as tangible things, objects you can see and touch, personal property which has a personal connection with the will-maker who used them.
The meaning of personal effects in a will – the context
Under the general (common) law, the courts have said that the meaning of the words personal effects, or whatever equivalent expression is used in a will, takes its 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.
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 to convey their intentions as to what they want done with their personal possessions. For example if they want particular personal items to go to certain beneficiaries, then they need to set this out clearly in their will so that their executors are not left in any doubt about their intentions. In this way the will document itself sets the circumstances in which the personal items are to be distributed. It contains a ‘controlling context’ to the meaning of the willmaker’s personal effects.
No controlling context
But if there is no controlling context, personal effects may be taken to mean physical chattels having some personal connection with the testator, such as 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 he said it was held that in the absence of a controlling context , that 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…...”
A New South Wales case3 is an example. 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 personal papers.
His wife sought further provision from the estate, and additionally, 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.The Judge said the Court’s task was to construe what the testator intended by the words “personal effects”.
The judge found that the evidence disclosed to the Court showed 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. In his view, it was not that there were no furniture, clothing, watches, accessories or appliances, it being a large estate, but that there had been incomplete disclosure of such assets.
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.
The meaning of ‘personal effects’ in the 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  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.
In a Queensland case on ‘personal effects’ the Court said the meaning depended on the context of its use in the particular will and what other words were used. If there is nothing else said in the will as to the personal effects then ‘personal effects’ mean the physical items that have some personal connection with the willmaker, articles of personal or domestic use or ornament, clothing, furniture and so on.4
Personal items in the house and in farm sheds
In this case the executors asked the Court to interpret a will and codicil. One question was whether certain vehicles were ‘personal effects’ within the meaning of the will, or ‘contents’, or part of residue. Similarly were sale proceeds of other goods which had been in farm sheds personal effects? By reference to the context of the will the Court found that the meaning of ‘personal effects’ only included things inside the house, not the items in the surrounding sheds on the farm. These were largely farming memorabilia, and not, the Court said, on a proper construction of the relevant clause of the will, items within the term “personal effects”. The Judge said that the words “ 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
In another early case of a farming operation a motor vehicle used in the farming business was bequeathed by including it in a gift of “farming effects”, as it was being used and regarded as part of the farm equipment and machinery. These exmples 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 informal ‘home made’ documents – “belongings”
In another case the word “belongings” had been used by the deceased in an 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, 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. The property and things in an intestate estate is then distributed according to a set of rules, the rules of intestacy, prescribed by various succession statutes in each state and territory. There are some differences between them. A brief outline follows with links. You should seek legal professional assistance if you have a loved one who has passed and not left a will.
(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.
In one New South Wales case the deceased died intestate (no will).6 Tthe legal rules on intestacy under Chapter 4 of the Succession Act 2006 in NSW applied to the distribution of his estate. There were competing claims on the estate from various family members for provision. The deceased had been married twice, having five children with the first wife and none with the second. His divorce from the second wife had not been finalised. With regard to the distribution of his personal effects, the first wife’s claim that she had been in a de facto relationship with deceased before he died was dismissed by the Court. That left the second spouse, who the Court said was entitled to take the deceased’s personal effects, even though she and the deceased had not finalised their divorce.
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;”
If someone dies intestate in Victoria, their personal chattels are distributed according to the statutory rules under Division 6 of the Administration and Probate Act 1958 (VIC).
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.
If they are survived by a spouse and/or domestic partner, then their personal chattels are distributed according to s 72H of the Administration and Probate Act 1919 (SA). If there is a spouse or domestic partner surviving, they are entitled to the personal chattels. If the intestate leaves a spouse and a partner, then they are entitled to an equal share, but if they have a dispute, the administrator may sell the personal chattels and divide the proceeds equally between them.
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.
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 on intestacy 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:
(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;
But they do not include chattels used for business purposes nor money or securities of the intestate person.
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.
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 Western Australia
In Western Australia the situation is similar to others. Entitlements to the property of someone who dies intestate (without a will) are given in a table in s 14 of the Administration Act 1903 (WA). These rules apply to all property including household chattels. Household chattels are defined to mean ‘articles of personal or household use or adornment’. A surviving husband or wife is entitled to all household chattels of the deceased’s property.
Finally, as with anything in succession and inheritance, everyone’s situation is different. Some people wish to leave a particular thing to a particular person, say a piece of furniture, painting or jewellery, perhaps a family heirloom, and want to ensure the selected person gets it. Other than giving it to them personally during their lifetime, one way to achieve this is by will. There is one thing to keep in mind though and that is what happens if, in the meantime, this is forgotten, and the item sold? Or it is destroyed somehow, such as by fire or lost through theft? The intended beneficiary then misses out. Regular reviews of your will are therefore important.
Making a list
Instead of listing personal items in the will, some people prepare a list in a separate document of particular things. These might be a family heirloom, item of furniture perhaps with a photograph, and name who they would like to have what. This document, which is not attached to the will, can be called a letter of wishes, statement of wishes, memorandum of wishes or similar. It should be titled to the effect that it is not a testamentary document but is to assist the executors.
Sometimes a statement may be made in the will that it is the willmaker’s wish that 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.
A separate wish list of this nature can be changed and updated as time passes.
Personal effects generally, and not otherwise disposed of by the will, can form part of the residuary estate to be called in by the executors, and distributed to the beneficiaries in accordance with the terms of the will. Residue is the estate property remaining after the deceased’s debts and liabilities have been paid and gifts made to beneficiaries.
Anything not accounted for fall into residue of the estate and are then distributed according to the willmaker’s instructions.
Seek professional legal advice for your situation, make a will and try to avoid ambiguity so as to assist your executors when the time comes.
1. Lowe v Lowe  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  NSWSC 48
4. Ashton & ors v Ashton & Ors  QSC 326
5. Public Trustee v Alexander – Estate of Alexander  NSWSC 1272
6. In the Estate of the late Anthony Marras  NSWSC 915
BHS Legal, updated 3 December 2020.
© BHS Legal