By Kenneth D. Fortune
Attorney-at-Law
“Dear Mr Fortune,
My father died recently. Before he died, I saw his Will. It said that I was to receive his half-acre of land. Shortly before his death, he became very ill, and the family needed money for his care. A few days before he died, he sold the land. The money from the sale is now in his bank account.
The executor informed me that, based on legal advice, I am no longer entitled to anything since the land was not part of the estate at my father’s death. I believe this is unfair, as the land was clearly intended for me, and I feel I should receive the sale proceeds instead.
Am I entitled to the money from the sale?”
Response:
It is understandable that you feel aggrieved. Your father’s Will apparently stated that you were to receive his half-acre of land, and it may seem only fair that, since the land was sold shortly before his death, you should now receive the money from the sale.
However, the law may view this differently.
A Will may give a beneficiary a particular, identifiable item of property. For example, a Will may leave “my half-acre of land at Westerhall” or “my motor vehicle registration number P001” to a named beneficiary. This is known as a specific gift.
If a specific gift is no longer part of the estate at the time of death, the gift may fail. This is called ademption in probate law. Ademption occurs when the property given by the Will has been sold, transferred, destroyed, or otherwise disposed of before death.
In your case, the Will appears to have gifted the land itself. Since your father sold the land before his death, it was no longer part of his estate at that time. The executor cannot transfer property the estate does not own.
A more complex issue is whether you are entitled to the sale proceeds in your father’s bank account. Generally, the answer is no unless the Will specifically states otherwise. A gift of land does not automatically include the money from its sale, even if the proceeds can be traced to the account.
This may seem harsh, especially when the sale was necessary for medical care or family needs. However, a Will takes effect at death, and the estate can only distribute property owned at that time. If the specific property is no longer in the estate, the gift may be adeemed.
However, you should not rely solely on the executor’s statement. An Attorney-at-Law should review the Will carefully, as the exact wording is important. There may be clauses or provisions addressing sale proceeds or property sold before death, or factual issues that require further consideration.
Based on the information provided, the executor may be correct. If the Will only gave you the half-acre of land, and your father sold it before his death, you may not be entitled to the sale proceeds.
This situation highlights the importance of reviewing Wills whenever property specifically mentioned is sold, transferred, or otherwise disposed of. A Will should be updated as property and circumstances change, rather than being prepared once and forgotten.
This response is for the general. The actual position would depend on the precise wording of the Will, the circumstances of the sale, and the documents relating to your father’s estate. You should therefore obtain specific legal advice before taking any step in the matter.
Closing Note
This column provides general information only. It does not constitute legal advice, and it should not be relied upon as a substitute for advice tailored to a particular situation. Persons facing disputes concerning estate property are encouraged to seek independent legal advice.
About the Columnist
Mr. Kenneth D. Fortune is an Attorney-at-Law practising in the state of Grenada and the Republic of Trinidad and Tobago. This column is intended as a public legal education resource. Questions for this column may be submitted via WhatsApp at
1-473-404-2900.
