Re Moran

In the matter of Re Moran, the dispute centred on the interpretation of a will concerning a specific gift of real estate. The case was heard and determined by the Supreme Court of Victoria. The central issue was whether a bequest of 'the real estate owned by me' constituted a specific gift that failed due to the property being sold by the deceased’s administrator before the deceased’s death, under the principle of ademption.

The court had to decide if the gift was a specific one, which would fail if the property no longer existed, or if it was a general gift, which would continue to the residue of the estate if the specific property was no longer available. The court examined the language of the will and relevant statutory provisions, including sections 53 of the Guardianship and Administration Act 1986 (Vic) and section 76 of the Guardianship and Administration Act 2019 (Vic). The court needed to ascertain whether the wording of the will indicated an intention to make a specific gift of the property owned at the time of the will, or whether it was meant to be a general gift of the deceased’s real estate.

The court concluded that the will did not explicitly state the intention to make a specific gift of the particular property owned at the time of making the will. Instead, it found that the language of the will suggested a general gift of the deceased’s real estate, which would pass to the residue of the estate if the specific property was no longer available. The court’s decision was influenced by the absence of clear indication in the will that the gift was intended to be specific, and by the statutory provisions that support a more flexible interpretation of such gifts. Consequently, the court ruled that the gift was not a specific one and therefore not subject to ademption, allowing it to pass to the residue of the estate.

The final orders of the court confirmed that the bequest was to be treated as a general gift, ensuring that it was not subject to the principle of ademption and could pass to the residue of the estate.