Re Gibson (deceased)

This probate matter, decided in 2012, is an important Queensland judgment on the doctrine of ademption. It has not yet been reported, however it will be in the near future. The case is particularly noteworthy because, in reaching a conclusion on the issue of whether a specific devise had been adeemed, Mullins J refused to follow two earlier Queensland Supreme Court decisions, but rather followed a more recent decision of the New South Wales Court of Appeal. In this matter the marital home, bequeathed to the deceased’s children (“the Respondents”), had been sold to finance the move of the testator’s wife to a nursing facility and the remaining proceeds transferred to the testator’s bank account. Whilst, prima facie, ademption occurred as the specific devise was disposed of on the (incapacitated) testator’s behalf prior to his death [21], the parties to the proceeding submitted that, given the facts of the case, specifically the mental incapacity of the testator, the exception to ademption, espoused in Viertel, applied. [22] However, prior to making an order, her Honour’s attention was drawn to a New South Wales Court of appeals decision, RL v NSW Trustee and Guardian [2012] NSWCA 39, which had concluded that Viertel was wrongly decided and that the exception to ademption provided for in Jenkins v Jones (1866) LR 2 Eq 323, upon which the decision in Viertel was based, ought to be confined to cases “where the subject matter is extinguished by fraud or tortious acts unknown to the testator”. [27] Persuaded by the comprehensive reasoning provided by the NSW Court of Appeal, Mullins J concluded that the bequest of the marital home was adeemed by its sale and the balance of the proceeds formed part of the testator’s residual estate.

This decision is particularly relevant given Australia’s aging population and the increasing prevalence of cases where “properties owned by incapacitated persons [are] sold under the authority of enduring powers of attorney, to fund accommodation bonds and other necessities and comforts”. [25]