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Legal News | 11.04.24

How to ensure that your gift really does keep on giving

When writing her Will, Jane decides that she would like to leave her much-treasured watch to her daughter, so Jane’s Will states:

‘I give my Rolex watch to my daughter Lucy.’

What happens if, by the time of her death, Jane no longer owns that Rolex or has replaced it with a different one?  The answer is that the gift to Lucy will fail thanks to the principle of ademption.

Ademption occurs where the testator, Jane in this case, either no longer owns the specific item when they die or where the item has changed in substance, i.e. to a new watch, rather than in name or form.

When ademption occurs, the intended beneficiary (Lucy) will not be able to claim the replacement asset under the terms of the Will, because the law presumes that the testator (Jane) only intended to gift the Rolex that she owned when she drafted her Will, and not its replacement.

Legacies in a Will can also fail via the principle of lapse, where the intended beneficiary dies before the testator.

So, what can be done to avoid these unwanted outcomes of ademption and lapse?  We at Wansbroughs can guide you through the process of creating effective Wills that reduce the risk of a legacy failing.  Thought can be given as to how a legacy is worded, so as to future-proof it and, if appropriate, replacement legatees can be included to avoid the lapse of a legacy.

As ever, we always recommend that you keep your Will under regular review so that it remains an accurate reflection of your estate and how you would wish it to be distributed.


Posted By Our Wills, Tax, Trusts & Probate Team