Many Australians appreciate the benefits and convenience of
retirement village living.
But some retirement village ownership structures require special
care in Will drafting, or the estate may not pass as you
This is highlighted by the recent case of The Trust Company
Limited & Anor v Zdilar & Ors  QSC 5, in which
the deceased left "my house property... or any substitute
house property I shall own at the date of my death" to her
grandchildren. The rest of her estate went to her
Before her death she sold her house at Rochedale and moved into
a retirement village under a sub-lease.
The issue for the court was whether the deceased "owned"
a "substitute house property" within the meaning of her
Will. If she did, then the proceeds she received from the operator
of the retirement village would go to her grandchildren. If not,
the proceeds would go to her great-grandchildren.
The court held the deceased's unit in the retirement
village was not a "substitute house property" but was the
deceased's place of residence or "accommodation
facility". Therefore, the retirement village's exit
entitlement went to her great-grandchildren and not her
This case reinforces the importance of careful Will drafting,
particularly the drafting of specific gift clauses, and is an issue
to be considered in both old and new Wills.
Other examples include clarifying who or which entity owns
assets and, whether the ownership is as joint tenants or tenants in
common. Problems also arise with gifts to charities where the
charity's name is spelt incorrectly or the charity no
longer exists at the date of death.
If a Will is not correctly drafted, the gift may fail and fall
into the residue (as in The Trust Company Limited & Anor v
Zdilar & Ors) and this is generally not what the testator
Cooper Grace Ward was named Best Australian Law Firm in the BRW
Client Choice Awards 2010 - Revenue < $50m. Joint Best
Australian Law Firm in the BRW Client Choice Awards 2009 - Revenue
The firm has also been named as the fastest growing law firm in
Australia for 2009 by The Australian.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Liability was apportioned between the VMO, Dr.Brown, and the hospital on an 80/20 basis in favour of the hospital.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).