Ademption is a legal doctrine that applies where a gift made by a Will no longer exists at the Will maker’s (i.e. testator) date of death. Under this doctrine, such a gift will fail.
Examples of specific gifts include identified property, motor vehicle, piece of artwork or jewellery.
A specific gift is considered to no longer exist, if during the testator’s lifetime, it has been:
- physically destroyed;
- sold or given away; or
- substantially changed.
If the subject matter of a specific gift has been sold, the doctrine of ademption cannot be avoided by tracing the proceeds of the sale of the gift.
Ademption will not occur where:
- the nature of the specific gift changes in name only (such as a gift of shares where the name of the company has changed between the date the Will and the date of death);
- Under Section 22 of the Powers of Attorney Act 2003 (NSW) where a will maker’s Attorney sells the asset that was gifted to a beneficiary in the Will, then the beneficiary of that asset retains the interest in the proceeds of such sale on the will maker’s death; and
- the specific gift is sold without the will maker’s authority. For example, if shares were sold by a share broker without the will maker’s authority, then the nominated beneficiary would inherit the proceeds of that share sale.
Need Help
If you require any further advice in relation to ademption, please contact our team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.
