Application of Sachs  NSWSC 1410
The executors of a Will sought directions from the New South Wales Supreme Court in November 2012 regarding the correct payment of a bequest.
In his Will, the willmaker left half of his net estate to a charity called “Save the Children”. At the time of administering the estate the charity had been deregistered.
The executors determined that there was a national charity called “Save the Children Australia” which appeared to be the successor of the charity named in the Will. The executors sought judicial advice as to whether they could pay the successor charity the bequest, even though it was not strictly what was in the Will, rather than seeing the gift fail.
The Court considered the willmaker’s intentions and decided it was clear that he wished to benefit a charity of that nature.
When making its decision the Court also considered the effect of the gift failing. If the gift were to fail then a partial intestacy would have resulted. Pursuant to the laws of intestacy, the gift would then pass to the willmaker’s aunt, who whilst having survived the willmaker, had subsequently passed away. The executors of the aunt’s estate had consented to the executors paying the gift to the successor charity instead.
The Court held that the executors were justified and should make the payment to the successor charity. Uncertain beneficiaries
Comment - This case demonstrates the importance of careful Will drafting and ensuring that the Will includes provision to address the event of a beneficiary predeceasing the willmaker or in this circumstance, no longer being in existence.
It also highlights the need to regularly review your Will. Had the willmaker regularly reviewed his Will then this issue could have been addressed by him earlier.
An executor has an obligation to distribute an estate in accordance with the Will. If uncertainty arises as to the correct administration of an estate executors should seek advice to ensure that they are protected and not liable for distributing the estate incorrectly.