Failure of gifts

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Gifts left by Will can fail for a number of reasons, such as the asset being gifted no longer belonging to the testator at the date of death or where a recipient predeceases a testator.

Failure of gifts—ademption

A specific legacy in a Will fails (adeems) if the testator no longer owns the particular asset when they die. The personal representatives (PRs) must consider whether any of the gifts in the testator's Will have adeemed. This may be:

  1. •

    by a subsequent disposition by the testator of the subject matter of the gift

  2. •

    by a change in the ownership or nature of the property

  3. •

    by the presumption that the testator does not intend to provide double portions for their children or other persons to whom they stand in loco parentis.

A distinction is drawn between specific, demonstrative and general legacies. A specific gift may be adeemed by its subject matter:

  1. •

    ceasing to be part of the testator's estate

  2. •

    ceasing to be subject to their right of disposition

A gift may be adeemed by the testator's own disposition of it,

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