Legal Question in Wills and Trusts in Australia
Executors role when a bequest is invalid
I am one of two executors of a Will. In this Will are monies in a particular stated Bank accounts bequethed to certain persons. The testator has transfered these monies to another bank accounts for greater interest and we have been told that it would not be legal for the executors to just make a decision that the money in the new bank account is the money mentioned in the will with the given account number and to distribute accordingly in the event of probate being granted.
Would this matter be raised with the Probate court to make a decision or should the testator make a codacil each time he transfers money from one account to another.
Testator is aware that he shouldn't have noted the bank accounts in the Will but he does not want to continually make codacils each time monies are transfered to new bank accounts. How would the execotors handle this?
Thank you.
1 Answer from Attorneys
Re: Executors role when a bequest is invalid
my view is that the testator should simply make a new will (or a codicil) and leave defined amounts of cash to the individual beneficiaries, or leave the totality of the cash to the desired beneficiaries in defined percentages.
If the account that is mentioned in the will has ceased to exist the gift is defeated. The executors would be in breach of the will trusts if they tried to take the cash from another account (no matter that there was no bad intent and it was an attempt to follow the testator's intentions)
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