Supreme Court New South Wales Medium Neutral Citation: NSW Trustee & Guardian v Bensley & Ors [2012] NSWSC 655 Hearing dates: 4 June 2012 Decision date: 04 June 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: 1. Declare that the gift of the "property [x/x-x xxx xxxxxx], Hornsby to my niece GLYNIS BENSLEY" per Clause 6 of the Will of the late Dawn Bensley dated 30 September 2009 has adeemed and, as such, the proceeds of sale of the property located at [x/x-x xxx xxxxxx], Hornsby passes into the rest and residue of the Estate to be dealt with in accordance with Clause 8 of the Will to the benefit of the First, Second and Third Defendants in the proportions nominated therein; 2. Order that the claim for relief in paragraph 2 of the summons be dismissed. 3. Order that the Plaintiff's costs of the Summons be paid Catchwords: WILLS, PROBATE AND ADMINISTRATION - construction and effect of testamentary disposition - ademption of specific bequest - whether change of substance of asset adeems gift - where valid sale of specifically bequeathed property during deceased's lifetime - held proceeds of sale of property to be dealt with as residue of estate WORDS AND PHRASES - ademption Legislation Cited: Conveyancing Act 1919 NSW Trustee and Guardianship Act 2009 Protected Estates Act 1983 Powers of Attorney Act 2003 Cases Cited: RL v NSW Trustee and Guardian [2012] NSWCA 39 Category: Principal judgment Parties: NSW Trustee & Guardian as executor of the estate of the late Dawn Bensley (Plaintiff) Glynis Catherine Bensley (1st Defendant) Claire Connelly (2nd Defendant) Patrick Bensley (3rd Defendant) Representation: Counsel: M Lawson (Plaintiff) Solicitors: Public Trustee NSW (Plaintiff) File Number(s): 2012/71994 Judgment 1HIS HONOUR: The plaintiff is the executor of the will of Dawn Bensley who died on 19 July 2011. The deceased left a will dated 30 September 2009. By that will she gave certain pecuniary legacies. She also made a gift of her property in [xxx xxxxxx], Hornsby ("the Hornsby property") to her niece, Glynis Bensley. She directed that the residue of her estate be divided between two nieces, Glynis Bensley and Claire Connolly, and her brother, Patrick Bensley. 2By its summons the plaintiff seeks a declaration as to whether the gift of the Hornsby property to Glynis Bensley has been adeemed. 3On 5 March 1998 the deceased appointed the Public Trustee as her attorney. The power of attorney was expressed to be a general power that was to continue to be effective, notwithstanding that after its execution Miss Bensley might suffer loss of capacity. The authority conferred on the Public Trustee was that provided for in the then s 163B of the Conveyancing Act 1919. 4By 5 March 2010 Miss Bensley, then aged 88 years, was diagnosed as having severe dementia. She was offered permanent placement at the Warrigal Care Bundanoon Aged Care Home and subsequently took up residence there. 5The NSW Trustee and Guardian (which is the successor of the Public Trustee) decided to sell Miss Bensley's Hornsby property. It appears that the property was sold on 26 November 2010 and the sale was completed on 23 December 2010. I infer that the sale price was $470,000. 6Part of the proceeds of sale was used to pay an accommodation bond at the Warrigal Care Bundanoon Aged Care Home. 7Following Miss Bensley's death, there has been a refund of the bond, or part of it, which has been paid to the plaintiff and deposited to the estate account. 8The balance of the proceeds of the Hornsby property can be identified. The question is whether the gift of the Hornsby property to Glynis Bensley fails because the deceased did not own that property at her death, or whether Glynis Bensley inherits the traceable proceeds of sale of that property. 9This question has recently been considered by the Court of Appeal (RL v NSW Trustee and Guardian [2012] NSWCA 39). The leading judgment was given by Campbell JA. Young JA and Sackville AJA generally agreed with his Honour's reasons. Campbell JA reviewed the authorities. It is unnecessary for me to consider the earlier authorities. I need only apply the conclusion of the Court of Appeal. Campbell JA concluded (at [173]) that subject to any statutory provision to the contrary: "... the only circumstance in which it is legitimate for the proceeds of sale of a specifically given item of property to pass to the intended donee of that property, other than where the sale has been effected without authority or in some other fashion wrongfully, is where the specifically given asset has not been changed in substance." 10His Honour also said (at [183]): "Absent matters such as dishonest dealings, a principal is bound by the acts of his attorney within the scope of the authority conferred, even if the principal has no intention to carry out the specific act that the attorney has carried out. This is no different to the way in which an incapable person is bound by acts, performed with proper legal authority, of whoever is administering his or her affairs, whether that administration is occurring under a court or Guardianship Tribunal management order or an enduring power of attorney." 11At [186] his Honour said: "When one is considering whether the disposition of an asset of an incapable person has adeemed a specific gift made by that person's will, there is no legitimate basis of principle on which a disposition effected pursuant to an enduring power of attorney should operate in any different way to a disposition effected pursuant to the authority of the court, or of the NSW Trustee. Re Viertel [[1996] QSC 66; [1997] 1 Qd R 110] did not consider the whole of the well-established line of English cases that show that the disposition of an asset of an incapable person in accordance with the court order results in an ademption of a specific gift of that asset." 12There are various statutory provisions that can affect the operation of this principle. None is relevant in the present case. Section 83 of the NSW Trustee and Guardianship Act 2009 does not apply because the deceased was not "a managed person" within the meaning of that Act and the sale was not a disposition or other dealing with property under that Act. Section 48 of the Protected Estates Act 1983 does not apply for like reasons. Section 22 of the Powers of Attorney Act 2003 does not apply. That Act applies to powers of attorney created by an instrument executed on or after the commencement of section 6. The date of commencement of that section was 16 February 2004. The power of attorney pursuant to which the property was sold was created on 5 March 1998. 13The proceeds of sale of the property are a change of the asset in substance. At the testatrix's death the Hornsby property was not an asset of the estate. Accordingly, the gift of the Hornsby property fails by ademption. The proceeds of sale of the property are to be dealt with as part of the residue of the estate. 14For these reasons: 1. I make a declaration as sought in paragraph 1 of the summons. 2. I order that the claim for relief in paragraph 2 of the summons be dismissed. 3. I make order 4 of the summons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2012