A lady called a few years ago wanting to change her mother’s Will, because the named executors has passed away. Her mother has dementia, and while she had an enduring power of attorney, making a Will is something an attorney cannot do.
I advised that it was not worth making an application to the Supreme Court to amend the Will, because nothing else in the Will needed changing, and she could apply for letters of administration with the Will annexed and distribute the estate according to the Will. Her mother died l and we are assisting her to get the letters of administration.
Her brother died, leaving 2 children. The Wills Act states that a gift intended for a child who predeceases the testator, goes instead to that child’s children, in equal shares, unless the Will is worded to the contrary. This Will is worded such that the presumption is rebutted, probably accidentally. We ensure that this does not happen with our Wills, unless we get very, very clear instructions to that effect.
Luckily for the children of the brother, the three surviving children are going to give a quarter of their respective shares to the children anyway, and there is only cash to distribute, otherwise transfer duty might have been payable.
So be careful with how your Wills are worded.
For help with powers of attorney advice, wording Wills properly and applications for letters of administration with Will annexed, see Michael Paterson & Associates.