Q&As

A deceased individual’s attorneys sold some chattels during the deceased’s lifetime (on the deceased’s behalf) and later realised that the items sold had been bequeathed under the deceased’s Will to one of the attorneys. Is that attorney entitled to keep the proceeds of sale (on the basis that they would have been entitled to the assets under the Will) and if not, what is the appropriate rate of interest payable on the proceeds to be repaid to the estate?

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Produced in partnership with Phillipa Bruce-Kerr of Harrison Clark Rickerbys Ltd
Published on LexisPSL on 03/09/2019

The following Wills & Probate Q&A Produced in partnership with Phillipa Bruce-Kerr of Harrison Clark Rickerbys Ltd provides comprehensive and up to date legal information covering:

  • A deceased individual’s attorneys sold some chattels during the deceased’s lifetime (on the deceased’s behalf) and later realised that the items sold had been bequeathed under the deceased’s Will to one of the attorneys. Is that attorney entitled to keep the proceeds of sale (on the basis that they would have been entitled to the assets under the Will) and if not, what is the appropriate rate of interest payable on the proceeds to be repaid to the estate?
  • Where a testator dies, and assets passing under the Will have been sold, can the beneficiary take the proceeds of sale instead?
  • Is the answer different if the testator lost capacity after making the Will but before their death?

Where a testator dies, and assets passing under the Will have been sold, can the beneficiary take the proceeds of sale instead?

It appears from this Q&A that there was a specific gift of item(s) to a beneficiary. The general rule is that specific gifts of particular item(s) identified in a Will only take effect if the item(s) are owned by the testator at the date of their death. If the item(s) are not in the estate at death, the gift will be adeemed and will fail.

There are some limited exceptions to the rule:

  1. the Will contains a contrary indication

  2. after ademption, there are other identifiable assets that amount substantially to the same thing as the item(s) referred to in the Will

  3. the testator loses capacity (by reference to the Mental Capacity Act 2005 (MCA 2005)) after signing the Will

Is the answer different if the testator lost capacity after making the Will but before their death?

If the testator makes a Will and then loses capacity (becomes of unsound mind) as d

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