A self-written Will is seldom drafted to take into account future possible changes to the Will-maker’s (testator’s) asset mix. Problems can arise when a testator drafts their own Will and fails to regularly update it. A self-written Will can quickly become out of date without regular review.
When a specific gift mentioned in a Will is no longer in the deceased estate, there is an ademption, and the named beneficiary misses out. However, statute and common law offers some relief from the rules of ademption.
What Is Ademption?
The word ademption comes from the Latin meaning “taking away”. When a specific gift left in a testator’s Will is no longer in their estate when they die, then that asset is adeemed and the beneficiary cannot inherit. The legal assumption is that the testator intended the beneficiary to receive nothing in replacement. An ademption can therefore lead to unfair and unexpected outcomes.
An asset may be unavailable because it was sold, destroyed or lost between the time that the testator made the Will and when they passed away.
Litigating Ademption
The Supreme Court of New South Wales has developed solutions to the problem of ademption. On occasion, the court presumes that the testator intended a gift to be general rather than specific, and the beneficiary is allocated an asset of equal value to the unavailable gift. If the gift is substantially the same as identified in the Will, having only changed in name and form, the court is likely to save the gift.
No Ademption due to lack of authority or wrongdoing
If the testator was unaware that a specific asset was no longer in his or her possession because of someone else’s wrongdoing, then the Court will rectify the adeemed gift.
Avoiding Ademption
A testator can avoid ademption by properly drafting and regularly updating their Will.
The approach in NSW
Courts generally try to avoid an ademption, as it is unjust for a beneficiary to be disadvantaged due to a technicality. But New South Wales courts have taken a more cautious approach to such rectification than other Australian courts.
Contact us now for free no obligation initial telephone advice about ademption.
