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An estate administration issue: Property left in Will disposed of before death

A son found that under his father’s Will he was left one house, another house was left to his

brother, and a small amount of cash remained to be divided between them.

Before the father died the house that was said to be going to this son in the Will, was sold and

he was told that apart from half of the cash, he would get nothing.

As a child he is able to contest the Will and a factor in his favour would be that it was

intended that his father was to leave him this house, and the will was not rewritten after it was

sold. However he will not be able to claim the full value of the house.

It is also quite possible that the proceeds of the sale can be traced and if they are held in a

bank account and/or were disposed of by an attorney during the life of the deceased, it might

be possible to have it pass under the Will.

It may also be necessary to apply to the Court to interpret the Will in a favourable manner or

to rectify it.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The effect of selling the property is that the house that was to go to the son no longer is owned

by the estate and he cannot benefit from that.

If the property was sold by an attorney, and/or if the assets are clearly traceable to particular

account or other form, the operation of the law and the Will may mean that these assets can pass

to the son who was intended to benefit, rather than going as “cash” between him and his brother.