Jewellery, memorabilia and heirlooms and your will
The easy way out is simply to refer to gifts, such as jewellery, family memorabilia, photographs, heirlooms and personal papers, in our wills as “our personal effects”.
Commonly, we find a brief, general clause giving “my personal effects to A, B and C in equal shares”.
But a general description can create difficulties in identifying particular gifts and in sharing items among a number of beneficiaries.
It is advisable therefore to give clear descriptions for items of jewellery and other personal gifts, and to name the beneficiaries of particular gifts.
Where jewellery is left in general terms and equally, say, to three daughters a “private family auction” may assist or the will could specify the order in which items may be selected by the beneficiaries concerned.
A 2015 New South Wales case (Lowe v Lowe) illustrates the difficulties of using the phrase “personal effects” by pointing to different court interpretations, to different contexts of wills, and to the particular circumstances of the will maker.
The court found that the ‘personal effects’ included a $60,000 Mercedes Benz. It adopted the High Court’s meaning of that phrase: “items specially and personally used by the testator” (Hawkins v Public Trustee).
The growing interest in family history has increased the value, not just the sentimental value, of family memorabilia, photographs, and personal papers.
It is only prudent to ensure that the will gives a clear description of each gift and so diminishes the difficulties that may be faced by both executor and beneficiaries.
Dr John de Groot is Special Counsel at de Groots wills and estate lawyers. John is a leading specialist in Succession Law. Visit degroots.com.au