Ademption and abatement, Failure of gifts- FS Flashcards
(29 cards)
What happens to a gift in a will if it fails?
The subject matter of the failed gift falls into the residuary estate and passes to the residuary beneficiary. If there is no residuary clause, it passes under the intestacy rules.
What is the consequence of a failed gift where there is no residuary clause in the will?
The failed gift becomes part of the intestate estate and is distributed according to the intestacy rules.
What is one reason a gift might fail under the principle of uncertainty?
A gift fails for uncertainty if the wording is so vague that the subject matter or intended beneficiary cannot be identified
What is the only exception to the rule that a gift fails due to uncertainty?
A gift to a charitable purpose may still be valid even if the specific charitable beneficiary cannot be identified, as long as the purpose is exclusively charitable.
Under which statute does a gift to a witness, or the spouse of a witness, fail?
Section 15 of the Wills Act 1837.
Why does the law invalidate gifts to witnesses of a will or their spouses?
To prevent conflicts of interest, ensuring witnesses remain impartial and do not have a vested interest in the will being validated.
Can a witness to a will still validly attest the will if they are a beneficiary
Yes, the will itself remains valid, but the gift to the witness or their spouse fails.
What happens to a gift left to someone who has since divorced or had a civil partnership dissolved with the testator?
The gift fails as the ex-spouse or ex-partner is treated as having predeceased the testator for purposes of distribution.
Which statutory provision governs the effect of divorce on gifts in a will?
Section 18A–C of the Wills Act 1837.
What is the legal fiction applied to gifts to former spouses or civil partners post-dissolution?
They are deemed to have died on the date of the dissolution or divorce for the purpose of interpreting the will.
Will a gift fail if the intended beneficiary is described too vaguely and cannot be identified?
Yes, this is a failure due to uncertainty, unless it is a purely charitable gift.
Can extrinsic evidence be used to save a gift that appears uncertain on the face of the will?
Only in specific circumstances allowed under Section 21 of the Administration of Justice Act 1982, where the language is ambiguous or meaningless.
If a testator intends a gift for a spouse and then divorces, what must they do to ensure that gift is still valid?
They must execute a new will or codicil after the divorce to reaffirm the gift, as otherwise the gift will fail by law.
What is the impact of a witness signing a will where their spouse is a named beneficiary?
The gift to the spouse fails under Section 15 of the Wills Act 1837.
In the absence of proper interpretation or rectification, what default principle governs failed gifts in wills?
Failed gifts fall into the residue of the estate; if no residuary clause exists, then they are distributed under intestacy rules.
What is meant by “ademption” in the law of wills?
Ademption occurs when a specific legacy fails because the testator no longer owns the subject matter of the gift at the time of death.
Under what condition will a specific gift in a will be considered adeemed?
If the specific item has been sold, destroyed, or otherwise disposed of before the testator’s death, and is no longer part of their estate.
Will a gift fail if the subject matter has merely changed in form but remains substantially the same?
No. If the item changes in nature but not in substance, the gift will stand and not be adeemed.
What is the effect of a substantial change in the nature of a gifted item?
The gift fails for ademption if the item has changed in substance, meaning it is no longer recognisably the same asset.
If the testator replaces a specifically gifted item with another of the same type, does the gift still take effect?
No. The gift is generally considered adeemed unless the wording suggests a general legacy, not a specific one
How does the court interpret a gift like “all my jewellery” in relation to changes in quantity?
Such a gift is treated as capable of increase or decrease, and includes all items matching the description at the date of death.
What does “abatement” mean when distributing a deceased’s estate?
Abatement is the proportional reduction of legacies when the estate lacks sufficient funds to satisfy all legacies in full.
What is the correct order of abatement for estate distribution?
Gifts abate in reverse order of distribution: residuary gifts abate first, then general legacies, and lastly specific legacies.
Between specific, general, and residuary legacies, which is prioritised first in payment?
Specific legacies are paid first, followed by general legacies, then residuary gifts.
