In guardianship law in Western Australia, the intersection of the principle of ademption and the provisions of guardianship and administration sometimes give rise to complex legal issues.

Ademption: An Overview

Ademption is a legal principle that, in essence, stipulates that a specific gift in a will ceases to exist, or is 'adeemed', if the asset or property is disposed of prior to the death of the testator.

This results in the intended beneficiary neither receiving the specific item nor any substitution. However, exceptions to this principle exist in instances of fraud or if the disposal lacked appropriate legal authority.

The Case "ISH [2021] WASAT 169" in Context

ISH [2021] WASAT 169 is a case wherein the principle of ademption was central to the Tribunal's deliberation.

The issue involved potential sale of a house that had been bequeathed in a will purportedly executed in 2007. The crux of the matter was the appropriate treatment of the sale proceeds: should these be merged with the general estate or held separately to uphold the intended bequest?

Interplay with Guardianship and Administration Act 1990 (WA)

The Guardianship and Administration Act 1990 (WA) (the GA Act) proved instrumental in this case.

Section 72 and certain parts of Schedule 2 of the GA Act provide the Tribunal with wide-ranging discretionary powers to maintain the nature or quality of any property within an estate.

This includes directing that the sale proceeds of an asset be placed in a separate bank account.

The Implication in "ISH [2021] WASAT 169"

In ISH [2021] WASAT 169, these provisions were invoked to safeguard the proceeds from the sale of the represented person's house from being amalgamated with the general estate.

This potential amalgamation may have impaired the applicant's claim to these proceeds, thereby potentially contravening the testator's intent.

The Tribunal's handling of the law of ademption in an earlier case, JEB [2016] WASAT 65, underscored a degree of uncertainty in the law's status in Western Australia.

However, in ISH [2021] WASAT 169, the Tribunal circumvented this uncertainty by utilising the extensive powers granted under the GA Act to issue the directions sought by the applicant.

The Best Interest Principle

The Tribunal also reiterated its obligation to act in the best interests of the represented person, which encompasses the consideration of the person's expressed or inferred wishes.

Enshrined under section 4(7) of the GA Act, this principle underscores the importance of acknowledging the autonomy and preferences of the represented person.

Key Take-Aways

The Tribunal's handling of ademption involves the intricate balance of rigid legal principles and the discretionary powers under the GA Act.
This approach illustrates a pragmatic response to the complexities that arise in guardianship and administration matters.