Power v Power [2011] NSWSC 288

Power v Power [2011] NSWSC 288

The sale of the testatrix’s half interest in the Wollongbar property under a power of attorney, where the relevant precondition (medical certification of incapacity) was not satisfied, was not authorised. Accordingly, the doctrine of ademption did not apply, and the beneficiary is entitled to trace the specific devise into the proceeds of sale held at the date of judgment, as an exception for unauthorised acts of an agent applied.

Jurisdiction
Australia
Judgment Date
14 April 2011
Procedural Posture
Principal Judgment / Decision After Hearing
Outcome
Devise did not adeem; proceeds of sale substitute for specific devise to beneficiary.
Legal Topics
['wills' 'probate and Administration' 'ademption' 'power of Attorney' 'construction and Effect of Testamentary Dispositions']
['succession'] ['wills' 'probate and Administration' 'ademption' 'power of Attorney' 'construction and Effect of Testamentary Dispositions']

Case Brief

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Procedural Posture

Principal Judgment / Decision After Hearing

Legal Issues

  1. 1 ['Whether sale of a specifically devised property under a power of attorney in breach of a condition adeemed the gift to the beneficiary' 'Whether an exception to ademption for unauthorised act of agent applies' 'Whether the beneficiary acquiesced in the sale']

Ratio Decidendi

The sale of the testatrix’s half interest in the Wollongbar property under a power of attorney, where the relevant precondition (medical certification of incapacity) was not satisfied, was not authorised. Accordingly, the doctrine of ademption did not apply, and the beneficiary is entitled to trace the specific devise into the proceeds of sale held at the date of judgment, as an exception for unauthorised acts of an agent applied.

Court Disposition

Devise did not adeem; proceeds of sale substitute for specific devise to beneficiary.

Orders

  • ["Entitlement of Mrs Power to what remains, at the judgment date, of the proceeds of sale of the deceased's half share in the Wollongbar property in substitution for the specific devise." 'Parties to bring in short minutes of order reflecting reasons.']