Legacies/Bequests and Devises

LOOK OVER ABATEMENT

Types of Gift

• Legacies/Bequests

• Devises

• Ademption – the gift does not exist in the same/similar form 

  • Not all gifts adeem

    • Lapse – the beneficiary is predeceased

      • Substitution can prevent lapse

• Devises are gifts of realty

• Gift of realty can never be pecuniary

types of legaicies/bequests

Ø  Specific

Ø  General

Ø  Demonstrative

Ø  Pecuniary

Ø  Residuary

types of devises

Ø  Specific

Ø  General

Ø  Demonstrative

Ø  Residuary

Specific (Legacy = Personalty) - case law

Bothamley v Sherson (1875) L.R. 20 Eq. 304

Can be bits or bobs or things all own

Gifts can adeem –

When identifying a specific gift in a will (a gift of something clearly distinguishable from the rest of the estate, including the residuary estate):
→ Possessive pronouns can be a useful indicator.

Words like “my” often signal that the testator is referring to a specific item they own rather than a general category of assets.

Examples include:

“My shares of stock”

“My East and West India Dock stock”

“My debentures”

This helps show the testator’s intention to give a particular asset they personally own, not just a general type of property or investment.

Therefore, using possessive pronouns can help courts interpret whether a gift is specific, general, or demonstrative.

Specific Gifts (Devise = Realty)

General Gifts - The Distinction

Bothamley v Sherson (1875) L.R. 20 Eq. 304

‘A general bequest may or may not be a part of the testator's property. A man who gives £100 money or £100 stock may not have either the money or the stock, in which case the testator's executors must raise the money or buy the stock; or he may have money or stock sufficient to discharge the legacy, in which case the executors would probably discharge it out of the actual money or stock. But in the case of a general legacy it has no reference to the actual state of the testator's property, it being only supposed that the testator has sufficient property which on being realized will procure for the legatee that which is given to him, while in the case of a specific bequest it must be of a part of the testator's property itself.’

per Sir Jessel MR 309

difference between general and specific gifts

·       General gifts in wills:

o   Do not have to be part of the testator’s existing estate at the time of death.

o   The estate’s administration (e.g. selling assets, raising funds) just needs to produce the value or equivalent of what’s been left.

o   Example: leaving “£10,000” or “100 shares in BP” (without specifying “my shares”) — the executors can use estate funds to fulfil it.

·       Specific gifts, by contrast:

o   Must be an identifiable asset that the testator owns personally at death.

o   If the asset no longer exists, the gift fails (adeems).

·       Redemption relevance:

o   A specific gift can be redeemed or adeem (fail) if it’s no longer in the estate when the testator dies.

o   A general gift, however, avoids this problem because it doesn’t rely on the existence of a specific asset.

o   Therefore, general gifts can be more beneficial, as they survive asset changes before death.

·       Summary:
→ General = flexible, survives asset changes.
→ Specific = fixed, can fail if asset gone.

Bothamley

Established that the absence of “my” can indicate a general gift.

However, if the property described is clearly distinguishable from the rest of the estate, it might still be specific.

The Court checks:

Whether the testator owned the property when the will was made.

Whether they still owned it at the time of death.

This matters because specific gifts can adeem (fail) if that property no longer exists, while general gifts cannot.

 

🔹 Why this distinction matters

For estate administration:

Executors need to know whether they must transfer an existing asset or realise funds to produce the gift.

For redemption (adeem) risk:

Specific gifts can adeem → if the item no longer exists, the beneficiary gets nothing.

General gifts cannot adeem → executors can use other estate assets to fulfil the gift.

Re Willcocks (1921)

Testator left stock to her parents, down to exact pounds and pence.

Later sold the stock and invested in real estate.

Issue:
Was the gift specific (which would adeem) or general (which could still be fulfilled)?

Held (Justice Lawrence):

A legacy of stock is prima facie general, even if the testator owned that precise stock at the time of the will.

The possession of a specific sum or stock may have motivated the gift, but the intention could still be to give a general legacy.

Rule from Re Willcocks:

If in doubt, presume the gift is general, not specific.

Reason: To uphold the testator’s intentions and prevent the gift from failing.

Effect in this case:

Treating the gift as general meant the parents still benefited.

Had it been specific, it would have adeemed and gone instead to the residuary beneficiary (her husband).

General principle from Re Willcocks

Courts lean towards preserving the gift.

Unless there’s clear evidence the testator changed their mind or intended otherwise, they will interpret it as general.

Ensures fairness and aligns with the presumed intention that beneficiaries should not lose out through technicality.

difference between all my land v all land in westside fell

“All my land” — usually seen as general, despite the use of “my”.

Too broad to be “specific”; like a gift of the whole residuary estate.

“All land at Westside Fell” — could go either way:

If testator owned land there at both will-making and death → could be specific.

But if ownership changes or is uncertain, courts may treat it as general to preserve the gift.

Problem: If land at Westside Fell no longer owned at death, it’s hard for executors to quantify what that general gift equates to.

 

Demonstrative Gifts

Ø   Mainly applies to legacies/bequests – gifts of personalty

Ø   Usually pecuniary - aka money based

Ø   General demonstrative gifts (not specific) - relating to land but its rare

Ø   May use the possessive pronoun (but not specific)

Ø   Possessive pronoun highlights a means from where to realise the gift

Ø   Rarely a demonstrative devise (gift of realty)

Ø  Key - Specific Source of Gift Identified

Definition:
A demonstrative gift is a legacy or bequest (usually money) that is to be paid out of a specific fund or source mentioned in the will.

It’s like saying: “Give X amount of money to this person, using money from this place first.”

demonstrative gifts are technically general gifts, but with a specified source, giving them a dual character: general in substance but specific in origin.

Dual Nature

Demonstrative gifts operate in two ways:

• If the fund exists → behaves like a specific gift (paid from that source first).

• If insufficient/missing → behaves like a general gift (paid from the estate).

Pecuniary Legacy/Bequest (only)

•       Legacy/Bequest Only

•       Never a Devise

•       Can be:

Ø  Specific

Ø  General

Ø  Demonstrative

•       Section 55(1)(ix), Administration of Estates Act 1925

Ø  “Pecuniary legacy” includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest, or payment is made to take effect.

A pecuniary legacy is a gift of money left in a will. It can take different forms:

• Specific – a fixed sum from a particular source

• General – a sum paid from the general estate

• Demonstrative – a fixed sum paid primarily from a named source, but topped up from the estate if needed

A pecuniary legacy cannot be a devise, because “devise” refers only to gifts of land.

---

📜 Section 55(1) – Administration of Estates Act 1925

Under Administration of Estates Act 1925, a pecuniary legacy includes:

• An annuity (regular payments)

• General or demonstrative legacies where the specified source does not fully satisfy the gift

• Any general direction by a testator to pay money (e.g. debts, taxes, or death duties)

Although the Act mainly governs estate administration, it is also used in understanding how money gifts in wills are classified and paid.

Residuary Gifts s(personalty and/or realty)

Residuary Gifts – Overview

The residue is everything left after debts, funeral costs, taxes, and all specific, general, and demonstrative gifts have been distributed. It includes both real and personal property.

---

📜 Purpose of a Residuary Clause

A residuary clause (“I leave the residue of my estate to X”) ensures all remaining assets pass under the will. Without it, any leftover property falls into intestacy, causing partial intestacy. The recipient is the residuary beneficiary (or legatee).

---

🔍 If No Residuary Beneficiary

• Named → residue passes under the will

• None named → intestacy applies

• Substitute named → inherits if primary beneficiary dies first

• No substitute → intestacy for the residue

---

👥 Why Name a Substitute?

Prevents partial intestacy if the main residuary beneficiary dies first, e.g. “to my husband, or if he predeceases me, to my daughter.”

---

⚖ Interaction with Intestacy

If residue falls into intestacy, intestacy rules apply after the will is executed. A surviving spouse/civil partner may receive the statutory legacy (currently £322,000), personal chattels, and further shares, reducing what other relatives receive.

residuary case law

Example – Lee Wilcox

Lee Wilcox left specific gifts to her parents and the residue to her husband, showing how wills combine specific and residuary gifts to dispose of the whole estate.

Ademption

Ademption – Overview

Ademption occurs when a specific gift in a will fails because the item no longer exists in the testator’s estate at death, meaning the beneficiary receives nothing.

---

💡 Why Ademption Happens

• Property sold before death (e.g. house or car sold)

• Property destroyed (e.g. stolen or written off)

• Property changed in form (e.g. item replaced or converted into something else)

• Simultaneous loss at death (e.g. accident destroying both testator and asset)

---

🧍‍♀ Testator Intention

Ademption can frustrate the testator’s intentions, especially where they forgot the gift existed or did not realise disposal would cancel it. Courts cannot reverse ademption — if the asset is gone, the gift fails.

---

🔍 Specific vs General Gifts

• Specific gifts → can adeem (only that exact item is given)

  • e.g. “My McLaren P1 to my brother” → fails if car is sold

• General gifts → do not adeem (can be satisfied from estate assets)

  • e.g. “£50,000 to my brother” → executors raise funds from estate

---

💸 General Gifts and Abatement

General gifts do not adeem but may be reduced under abatement if the estate is insufficient. General legacies are reduced before specific gifts, meaning they are more flexible but less secure in a low-value estate

Case: Durrant v Friend (1852)

• Facts:

  • Mr Friend (a sailor) made a will leaving specific gifts to family:

  • Clothes, charts, instruments → father and brothers.

  • Gold watch, chain, piano → daughter.

  • He took many of these items on a voyage as ship captain.

  • He drowned at sea; the ship sank with all the gifted items on board.

  • The items were insured — the question was:

  • Could the beneficiaries claim the insurance money for those items?

  • Held:

  • No — the gifts had adeemed.

  • The insurance proceeds belonged to the residuary estate, not the specific beneficiaries.

• Reasoning:

  • If the testator had died before the items were destroyed → the beneficiaries would’ve had a vested proprietary interest and could claim the insurance proceeds.

  • But here, both the testator and the items were lost at the same time →

  • No vested interest ever arose.

  • Beneficiaries couldn’t trace the proceeds.

  • Insurance payout fell into the residuary estate (to be distributed under the will).

• 📘 Key Legal Principles from Durrant v Friend

  • A beneficiary’s proprietary interest in a gift arises only upon the testator’s death.

  • If the property no longer exists at that moment → no vested interest = no gift.

  • Insurance money (or compensation) does not automatically replace an adeemed gift.

  • Therefore:

  • If property destroyed before death → adeemed.

  • If destroyed after death (but before distribution) → beneficiary entitled to insurance proceeds (since interest already vested).

Ashburner v Macguire (1786) 2 Bro CC 109

shburner v Maguire – Core Rule (Ademption & Tracing)

The established principle is that a beneficiary of a specific gift that has adeemed cannot trace into its proceeds. If the gifted property no longer exists in its original form at death, the beneficiary receives nothing—even if its value remains in the estate.

---

💼 Facts of Ashburner v Maguire

The testator specifically gifted stocks and shares and made arrangements relating to a debt owed by his brother-in-law. Before death, the stock was sold and therefore no longer existed in the form described in the will. The beneficiary attempted to claim either the proceeds or an equivalent value.

---

⚖ Judgment (Lord Chancellor Thurlow)

The court held the gift had adeemed, stating that once the property is no longer in the estate in the form described, the legacy fails. The beneficiary could not trace into the sale proceeds.

👉 Key rule (Ashburner principle):
If specific property is converted into something else before death, it is treated as no longer existing for the purposes of the will, and the beneficiary cannot claim the substitute value.

Contrast – Re Willcocks (1921)

In Re Willcocks, the court treated the gift as general rather than specific, meaning it did not adeem. The executors could satisfy the gift using other estate assets. This case shows that classification of the gift (specific vs general) is crucial.

criticism for the ademption rule

Criticism of the Rule

The Ashburner rule is often seen as harsh because it defeats the testator’s intention simply due to a change in form of the asset. Many testators are unaware that selling or altering an asset will cancel a specific gift, and the rule prevents recovery of equivalent value even where funds remain in the estate.

---

🧠 Avoiding Ademption in Practice

Lawyers reduce risk by:

• Using general or demonstrative wording instead of strictly specific gifts

• Adding substitution clauses for changed or sold assets

• Updating wills after major asset changes

Re Lewis’s Will Trusts (1964) – Avoiding Ademption by Intention

The key principle is that a testator can prevent ademption if they clearly express an intention that the gift should survive changes in form.

---

💡 Core Rule

A gift will not adeem where the will shows a clear contrary intention, meaning the testator intended the beneficiary to receive any replacement or substituted asset.

---

📜 How It Works

This is usually done through substitutional wording, e.g.:

⚖ Effect of the Case

The court held that clear wording like this prevents ademption, so substituted investments formed from the original asset still pass to the beneficiary. This avoids the strict outcome in Ashburner v Maguire, where any change in form would otherwise cause the gift to fail.

---

🧠 Practical Importance

• Protects testator intention

• Prevents accidental failure of gifts

• Encourages careful drafting of wills

👉 Example drafting:
“I give my 500 shares in X Ltd, or any investments representing them at my death, to my daughter.”

Oakes v Oakes (1852)

Oakes v Oakes (1852) – “Substantially the Same Thing”

In Oakes v Oakes, the court held that no ademption occurs if the property still exists in a substantially similar form at death.

---

⚖ Key Test (Turner LJ)

If the testator still owns the same thing in essence, even if altered in form, the gift remains valid:

“If the same thing exists at death, though in a different shape, it is not adeemed.”

---

🔍 Limits

• Insurance proceeds are not the same thing (confirmed in Durrant v Friend)

• A major change in substance (e.g. car → painting) will still cause ademption

• The test is fact-specific and can be uncertain

Ademption - Mitigating the Effect of the Rule in Ashburner v Macguire

Putting It Together

• Ashburner v Maguire → strict rule: change form = ademption, no tracing

• Re Lewis’s Will Trusts → ademption avoided if clear intention to include substitutes

• Oakes v Oakes → no ademption if asset remains substantially the same thing

---

🧠 Key Takeaway

Ademption is strict in principle, but can be avoided either by:

• Clear drafting (Re Lewis), or

• Showing the asset remains essentially the same (Oakes).

Lapse

efinition

Lapse occurs where a beneficiary predeceases the testator, meaning the gift fails because the intended recipient is not alive at the date of death. This is distinct from ademption: lapse concerns the person failing, not the property. It also applies where a beneficiary such as a company or charity ceases to exist before the testator dies.

---

🔁 What Happens When a Gift Lapses If the gift is specific, general, or demonstrative:

• It falls into the residuary estate

• The residuary beneficiary inherits it

• If no residuary beneficiary exists → intestacy applies

If the residuary gift itself lapses:

• There is nothing left to absorb the gift

• This creates partial intestacy

• The intestacy rules distribute the residue

---

🧍‍♂ Preventing Lapse (Drafting Solutions)

Unlike ademption (which can sometimes be avoided by interpretation), lapse requires express drafting steps:

• Substitute beneficiaries (e.g. “to X, but if X predeceases me, to Y”)

• Per stirpes clauses

• Clear substitutional wording showing alternative beneficiaries

---

🌳 Section 33 Wills Act 1837 (Per Stirpes Rule)

Section 33 is a statutory anti-lapse mechanism applying only to issue (children, grandchildren, etc.).

⚙ Core Effect

Where a child or remoter descendant predeceases the testator:

• Their children automatically take their share

• The gift passes down the bloodline (“by the branch”) instead of lapsing

🧩 Example

“I leave £10,000 to my daughter Julie.”

• Julie dies before the testator

• Julie has a son, Marcus
  → Marcus inherits Julie’s share under s.33

---

⚠ Limits of Section 33

• Only applies to lineal descendants (issue)

• Does not apply to friends or unrelated beneficiaries

  • e.g. “to my friend Amin” → Amin’s children get nothing unless stated

• Can be excluded if the will shows a contrary intention

  • e.g. “if any beneficiary predeceases me, their gift shall lapse

class gifts

Definition

A class gift is a gift to a group described by relationship rather than individual names.
Examples:

• “my children”

• “my nieces and nephews”

• “my residuary estate to my children in equal shares”

Key features:

• Beneficiaries are not individually identified

• They take as a group

• Subject to class closing rules

---

🔒 Class Closing Rules

A class closes when:

• At least one member is alive at the testator’s death, and

• No further members can join the class

OR earlier if the will specifies:

• e.g. “my nieces and nephews alive at my death”

📌 Example:
Gift to “nieces and nephews when they reach 21”
→ Class closes when the first niece/nephew turns 21

---

💀 Effect of Lapse in Class Gifts

• If a class member dies before the testator:
  → their share is redistributed among surviving class members
  → it does not pass into residue

• If the class is made up of issue:
  → Section 33(2) applies
  → deceased member’s children take their share

key cases on class gifts and s.33

Ling v Ling (2002)

• Gift of residue to “all or any of my children living at my death”

• One child predeceased leaving a son

• Held: s.33 applied → grandson took father’s share

• Etherton J: s.33 acts as a statutory safety net assuming testators rarely expect children to die first

---

🏛 Hives v Machin (2017)

• Confirmed Ling

• s.33 applies to grandchildren of deceased children in class gifts

---

🏛 Naylor v Barlow (2019)

• Reaffirmed approach

• s.33 applies automatically unless clear contrary intention excludes it

exceptions to lapse

🧭 Stevens v King (1904)

Rule:

If the testator had a moral obligation toward a beneficiary, and that beneficiary predeceases them,
→ the court may allow the gift to pass to the beneficiary’s estate instead of lapsing.

Effect:

Rare, but shows equitable flexibility — the court can preserve moral fairness if that reflects the testator’s intent.

🕊 Charitable Gifts and the Cy-Près Doctrine

Lapse can also apply to charities, but courts are reluctant to let charitable gifts fail.

If the named charity no longer exists, but there are similar charities doing the same work, the court applies cy-près (French: “as near as possible”).

⚙ How It Works:

If the testator shows general charitable intent, the court can redirect the gift to a similar cause.

E.g. “£10,000 to Cancer Research UK for its general charitable purposes.”
→ If CRUK ceases to exist, the gift might go to another cancer charity instead.

Rationale:

Protects testator’s moral and charitable intention.

Reflects the public policy interest in supporting charitable giving.

Simultaneous Death – Commorientes Rule

Section 184 Law of Property Act 1925: ‘In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.’

Section 4(2) Inheritance Tax Act 1984: ‘For the purposes of this section, where it cannot be known which of two or more persons who have died survived the other or others they shall be assumed to have died at the same instant.’

Why It Matters

Determines whose will takes effect first.

Without a survivorship clause, property may pass:

From the elder’s estate → to the younger (deemed to survive) → then under the younger’s will/intestacy.

This could cause the property to end up in the wrong estate — not what the testator intended.

when doesnt the simultaneous death rule apply

Intestacy rules for spouses/civil partners:

They must survive the intestate by 28 days (under the Administration of Estates Act 1925, s.46(2A)).

So Commorientes doesn’t apply — the 28-day rule overrides it.

Inheritance Tax (IHT):

Under s.4(2) Inheritance Tax Act 1984, both are treated as dying at the same instant — not oldest first.

Prevents artificial tax advantages or complications.

Avoiding the Rule: Survivorship Clauses

Most professionally drafted wills now include a survivorship clause to override Commorientes.

Typical clause:

“A beneficiary must survive me by 28 days to take their gift.”

This ensures property doesn’t transfer between two estates when both die close together.

Prevents accidental transfer of assets into another estate.

Ensures the testator’s will governs their property, even in cases of joint death.

Common wording:

“If any beneficiary fails to survive me by 28 days, the gift to them shall lapse and pass to [substitute beneficiary].”

Abatement

Abatement = process where gifts under a will are reduced or lost because the estate lacks enough assets to pay all debts and legacies in full.

Gifts may be given in part instead of in full, or not at all.

Happens when the estate is solvent but insufficient to cover every gift after debts/funeral costs.

Debts + liabilities must be paid first from “ready money” (cash, liquid assets).

If not enough → executors sell or reduce other assets according to statutory order.

Found in s.33–34 & Sch. 1, Pt. 2 Administration of Estates Act 1925.

abatement examples

The will may specify the order in which assets are to be distributed

If the will does not then property undisposed of by will used to pay pecuniary legacies (ss 33(1) and (2), or 34 AEA 1925 and Schedule 1, Part II, AEA 1925)

Where there are insufficient funds to satisfy all gifts in the will:

Ø  Schedule 1, Part II, AEA 1925

Ø  General gifts abate before specific gifts

Ø  Specific gifts abate next; and

Ø  Demonstrative gifts abate with specific gifts or after, depending on if they are specific or general.