32AHEffect of ademptions of testamentary gifts by attorney under enduring power of attorney

32AH Effect of ademptions of testamentary gifts by attorney under enduring power of attorney

[Section 32AH Inserted by No. 39 of 2013, s. 15, Applied:01 Feb 2014]

(1)  In this section, a reference to a dealing with property includes a sale, mortgage, charge or disposition of property and any other dealing with property.

(2)  A person who is a beneficiary (a relevant beneficiary) under the will of a deceased donor of an enduring power of attorney has the same interest in any surplus money or other property arising from a dealing with property by the attorney under the enduring power of attorney as the relevant beneficiary would have had, in the property that is the subject of the dealing, if the dealing had not been made.

(3)  The surplus money or other property arising from the dealing with property as referred to in subsection (1) is taken to be of the same nature as the property dealt with.

(4)  The Supreme Court, on the application of a relevant beneficiary, under the will of a deceased donor of an enduring power of attorney, to whom subsection (2) relates or another person who the Supreme Court considers has a proper interest in the matter, may –

(a) make the orders, and direct the conveyances, deeds and things to be executed and done as it thinks fit in order to give effect to subsections (2) and (3) ; or

(b) if it considers that the operation of subsections (2) and (3) would result in one or more relevant beneficiaries –

(i) gaining an unjust and disproportionate advantage; or

(ii) suffering an unjust and disproportionate disadvantage –

of a kind not contemplated by the will, make such other orders as the Supreme Court thinks fit to ensure that no relevant beneficiary gains such an advantage or suffers such a disadvantage.

(4A)  [Section 32AH Subsection (4A) inserted by No. 38 of 2015, s. 43, Applied:13 Oct 2015] An application under is to be made not later than 3 months after the date of the grant of probate of the will, or letters of administration of the estate, of the deceased person.