• 2 min read

Ademption and the failing of gifts in Wills

Serious pensioners writing their testament

One of the problems that can be encountered following a person’s death is the distribution of their estate according to the existence of assets matching the terms of their Will. Often people leave legacies and then divide residue, but people sometimes still leave specific gifts including property.

For example:

If a person gives their home, 1 Acacia Avenue, to a particular beneficiary and on their death that property is no longer owned, then the gift cannot take effect and is said to have “adeemed”. Sometimes, the sale of a property might be envisaged and the gift may be qualified by “such other property as I may own at the date of my death”, but there are situations, such as a person selling all property and living in a home in later life, which will mean that there is simply no property to pass at the date of death. Ademption can therefore be of great disappointment to beneficiaries who feel they have lost out.

In certain circumstances, the law provides some protection for disappointed beneficiaries. An old authority of Jenkins v Jones (1866) decided that where a third party had extinguished the subject matter of the gift without the authority of the testator, the proceeds of sale if identifiable could be still treated as the subject of a specific gift. However, where the property is sold by an attorney with the authority of the testator, then this will be of no assistance. The position is slightly different in the case of decision made by deputies. A deputy is a person appointed after someone has lost capacity. The Mental Capacity Act 2005 provides that where ademption applies and a specific gift is no longer in existence at the date of death, then the Court has the power, if the circumstances are appropriate, to reconstitute the gift in order to give effect to the terms of the Will. As ever, careful planning is required when making Wills, but even where that takes place problems can occur later on and expert advice will be necessary to deal with the problems arising.

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