Where will granted husband the right to reside in property
Where insufficient assets in estate to pay estate liabilities and retain property
Quick Take
1A testamentary direction permitting a named person to 'reside' at a property rent-free, subject to conditions of vacating or requiring full-time care, with the executor directed to pay outgoings, confers a mere personal right of occupation rather than a life interest, particularly where the will does not use the language of 'use' or 'occupy' and does not entitle the beneficiary to income from the property.
2Under ss 37 and 39A of the Administration and Probate Act 1958 (Vic), estate debts must be paid in priority to any testamentary disposition, and where non-property assets are insufficient to meet liabilities, specifically devised property may be sold even where a beneficiary holds a right of residence.
3The Cherry v Boultbee principle, as restated in Harris Health Care Pty Ltd v Hayes (2024) 116 NSWLR 273, permits an executor to withhold distribution of a beneficiary's aliquot share of an estate until that beneficiary's liability to the estate (including untaxed costs orders) is quantified and netted off.
