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WA Executor of Will - Is Property in Australia Considered Residual Property?

Discussion in 'Wills and Estate Planning Law Forum' started by Freeda Bees, 23 September 2016.

  1. Freeda Bees

    Freeda Bees Member

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    My brother and I each had a half share in a property in Ireland. He died, leaving his share in the property equally to any children I might have at the time. The eldest of them turned 18, with each inheriting their share upon reaching that age. I had a son, who at the time of his death, was a couple months old, and subsequently had a daughter some years later.

    He was married, but separated from his wife shortly before he died with a judicial separation having taken place, which excluded the property in question from the property settlement. In his will, he left any residual property to his wife.

    He appointed my mother as sole executor of will, and myself in the event she was unwilling or unable to fulfill that role. My mother took out probate in Ireland at the time in relation to the property and was executor of will, dealing with all matters she could. My mother died prior to my son turning 18, so could not transfer my brother's interest in the property to my son. She appointed me as her sole executor.

    At the time of my brother's death, all parties, except his wife, were living in Australia. I and my son subsequently moved to Ireland where my daughter was born.

    The question really is; under Australian law has my brother's share in the property become 'residual property' because my mother died before the terms of his will could be finalised? That seems to be the tentative opinion I am getting locally.
     
  2. Victoria S

    Victoria S Well-Known Member

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    The death of an executor should have absolutely no effect on the entitlements of beneficiaries and should not change the status of a gift.

    Generally for situations where an executor dies shortly after the testator, their executor will assume the same role for both people who passed away.
     
  3. Freeda Bees

    Freeda Bees Member

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    Thank you very much for your reply.

    Responses to my enquiries here in Ireland lead me to believe that the Irish legal position was that the property became residual because the executor had died before they could complete their duties. To a layperson, that just seems nonsensical.

    I would hope I would be able to make an argument that Australian law should apply or perhaps just try and get the matters progressed via a solicitor in Australia.

    Thank you again.
     

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