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Changes to the Framework of Enduring Power of Attorney, Guardianship and Administration Legislation in Queensland

Thursday, 11 April, 2019

Queensland has recently passed an important piece of legislation that will see a significant change to the area of Wills and Estates law. As the Honourable Yvette D’Ath, Attorney-General and Minister for Justice, correctly identified on 26 March 2019 in her statement to the media that: “Issues of guardianship will affect most of us in some form or another during our lives, particularly with our ageing population.”

The amendments passed will include the introduction of a statutory exception to ademption.

The term ademption refers to the circumstances where a gift dealing with specific property under a will fails because that property has since been sold or otherwise disposed of. The most familiar example is where a will provides for a gift of house to a certain beneficiary but then the house is sold prior to the testator’s death. Unless that beneficiary is otherwise named to receive part of the residuary estate, that beneficiary would potentially have no other interest under the will.

Pursuant to the amendments, as the Honorable Yvette D’Ath explained during the reading of the Bill on 15 February 2018:

“When an attorney under an enduring power of attorney or an administrator deals with the testator’s property that is a gift under a will, the beneficiary is entitled to the same interest in any surplus money or other property arising from the sale or other dealing with the property. This will give effect to the testator’s intentions before he or she lost capacity.”[1]

The Bill was passed in the Queensland Parliament on 26 March 2019. The Bill also contains several guidelines that will be developed together with other reforms in the area of succession and advance planning.    

For assistance in preparing your Will or Enduring Power of Attorney documents, contact Bruce Legal to arrange an appointment with one of our experienced Wills and Estates lawyers.

 [1] Queensland, Legislative Assembly 2018, Hansard p.103-104

Author: Bruce Legal

Amy Smith