wording of will

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Bronson

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6 July 2020
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The wording of a will I am named in states: I give devise and bequeath any real estate that I own at the date of my death to A: Q1 - Does this include all the contents of the house as well?

Q2 - If the house has to be sold for the owner to go into a Nursing Home, does this mean there is no real estate to inherit and the money is included in the 'rest of the residue of my real and personal estate to B:?

Thanks for answers. From the state laws of New South Wales
 

Rob Legat - SBPL

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I can't answer this from New South Wales perspective, but I don't imagine the rules down there will be too far different:
1. There is a difference between real property (i.e. real estate) and personal property (pretty much anything else). If someone is left real estate, without anything further, it's just the house. Included are fixtures and fittings - but not chattels. Chattels effectively means anything that is not physically attached/bolted/plumbed into/part of the house. For example: fridges are chattels, freestanding ovens are arguable, curtains are arguable, dishwashers are arguable, in wall ovens are fixtures, doors are fixtures, furniture is chattels, pool pumps are fixtures, pool cleaning equipment is chattels. I've seen the arguable things go each way, and it's not usually worth the fight.

2. If the testator sells the real estate and converts it into cash, then they don't own real estate any more. Per your wording "... any real estate I own at the date of my death...". The applicable time is at the time of death. If they used to own real estate, that's irrelevant - only what's there at the date of death. So, in your example, any funds resulting from the sale would form part of the rest and residue.
 

Bronson

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6 July 2020
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Sorry confusing answer , will re-phrase question - selling the house and moving to nursing home - i.e. now becomes their house because when they die the relative gets a refund of most of the money? - selling the house and only having cash, are different things. Leaving someone a house usually means 'and contents' or do they have to absolutely state this in will?
 

Rob Legat - SBPL

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'Now becomes their house'? No. Aged care facilities/nursing homes are not the same as owning a house. They're more akin to a lease in that you have the right to use the facility, and have to put down what is called a RAD - a refundable deposit. That RAD is not the same as real estate, so it is not traceable. If the will says 'the real estate I own at the date of my death' that's it. If the testator does not own real property in their name when they die, then you have what is called an ademption - a gift that fails because there is nothing to give. The general rule for wills is that an ademption is struck out of the will like it never existed, and the rationale for that is that if the testator sells the real estate then they did so being aware of the contents of their will and made the conscious decision that the gift would fail. There are isolated exceptions in some states - you'd need specific advice on that.

Leaving someone a house does not mean 'and contents'. Wills are specific. If it says house, it means house - not anything more than that.
 
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