Unlike the ABC one above this is fairly simple.
My brother and I are both executors and residual beneficiaries from my >mother's estate. She showed me a copy of her will over the weekend, and
it names a number of items to be given to various people.
Things that she has apparently already given away - and not always to
the person mentioned.
What will the position be if we cannot track down the items?
In message <vlhj4p$1qlj0$1@dont-email.me>, at 21:49:13 on Mon, 6 Jan
2025, Vir Campestris <vir.campestris@invalid.invalid> remarked:
Unlike the ABC one above this is fairly simple.
My brother and I are both executors and residual beneficiaries from
my mother's estate. She showed me a copy of her will over the
weekend, and it names a number of items to be given to various
people.
Things that she has apparently already given away - and not always
to the person mentioned.
What will the position be if we cannot track down the items?
The will ought to have some wording in it to cover the situation of
those items no longer being available.
I have seen wills which don't list specific items, but refer to a
separate list which could be kept updated. It sounds a bit like an
informal codicil, but that will was drawn up by expensive solicitors
so I have to presume it's OK.
Sadly, this is more common than you might expect as quite often a
significant length of time elapses between the will being drafted and
the testator dying.
Providing the estate is sufficiently solvent, it isn't typically a
problem for a general legacy [^1] but can be an issue for a specific
legacy (that identifies a particular item) [^2] or a demonstrative
legacy (which outlines a specific fund from which the gift is to be
made) [^3].
The term used in such circumstances is "ademption", which refers to the complete or partial withdrawal of a legacy by an act of the testator
during their life.
If the subject matter of the gift no longer exists at the date of the testator's death then the bequest fails by ademption.
The intended beneficiary of a gift which fails by ademption will have no automatic right to any cash equivalent unless there is an express
provision in the Will.
An extreme example of ademption would be the following: the will says,
"I leave my 1962 Ferrari 250 GTO to Simon Parker" but the testator is involved in a serious motor incident in which said Ferrari is destroyed
and the testator succumbs to their injuries and dies in hospital a few
days later. Obviously, it would be hoped that there would be an
insurance claim and eventual payout on the total loss of the vehicle but
the proceeds of the insurance claim would not automatically come to me
as the gift fails by ademption as the gift no longer existed at the time
of the testator's death.
In your case, as you know about the issues now, I recommend either
getting a new will written with suitable corrections made, or add a
codicil to the existing will to correct the matter.
Regards
S.P.
[^1] "I gift the sum of £200..."
[^2] "I gift my Rolex Daytona Reference 6265 ('Unicorn') watch..."
[^3] "I gift the sum of £200 from my HSBC Bank ISA reference..."
On 06/01/2025 21:49, Vir Campestris wrote:
Unlike the ABC one above this is fairly simple.
My brother and I are both executors and residual beneficiaries from my
mother's estate. She showed me a copy of her will over the weekend,
and it names a number of items to be given to various people.
Things that she has apparently already given away - and not always to
the person mentioned.
What 9will the position be if we cannot track down the items?
Sadly, this is more common than you might expect as quite often a
significant length of time elapses between the will being drafted and
the testator dying.
Providing the estate is sufficiently solvent, it isn't typically a
problem for a general legacy [^1] but can be an issue for a specific
legacy (that identifies a particular item) [^2] or a demonstrative
legacy (which outlines a specific fund from which the gift is to be
made) [^3].
The term used in such circumstances is "ademption", which refers to the complete or partial withdrawal of a legacy by an act of the testator
during their life.
If the subject matter of the gift no longer exists at the date of the testator's death then the bequest fails by ademption.
The intended beneficiary of a gift which fails by ademption will have no automatic right to any cash equivalent unless there is an express
provision in the Will.
On 07/01/2025 10:34, Simon Parker wrote:
On 06/01/2025 21:49, Vir Campestris wrote:
Unlike the ABC one above this is fairly simple.
My brother and I are both executors and residual beneficiaries from
my mother's estate. She showed me a copy of her will over the
weekend, and it names a number of items to be given to various
people.
Things that she has apparently already given away - and not always
to the person mentioned.
What 9will the position be if we cannot track down the items?
Sadly, this is more common than you might expect as quite often a
significant length of time elapses between the will being drafted and
the testator dying.
Providing the estate is sufficiently solvent, it isn't typically a
problem for a general legacy [^1] but can be an issue for a specific
legacy (that identifies a particular item) [^2] or a demonstrative
legacy (which outlines a specific fund from which the gift is to be
made) [^3].
The term used in such circumstances is "ademption", which refers to
the complete or partial withdrawal of a legacy by an act of the
testator during their life.
If the subject matter of the gift no longer exists at the date of the
testator's death then the bequest fails by ademption.
A common example is, as the OP suggested, where a specific item
continues to exist, but it has already been given away during the
testator's lifetime. I assume that the gift in the will simply cannot
happen, as that item is not part of the estate.
There was a hint in the OP that perhaps the lifetime gift needed to be
clawed back by the estate, so that the gift in the will could take
place. Perhaps you could clarify that please?
On 08/01/2025 11:26, GB wrote:
On 07/01/2025 10:34, Simon Parker wrote:
On 06/01/2025 21:49, Vir Campestris wrote:
Unlike the ABC one above this is fairly simple.
My brother and I are both executors and residual beneficiaries from
my mother's estate. She showed me a copy of her will over the
weekend, and it names a number of items to be given to various people. >>>>
Things that she has apparently already given away - and not always
to the person mentioned.
What 9will the position be if we cannot track down the items?
Sadly, this is more common than you might expect as quite often a
significant length of time elapses between the will being drafted and
the testator dying.
Providing the estate is sufficiently solvent, it isn't typically a
problem for a general legacy [^1] but can be an issue for a specific
legacy (that identifies a particular item) [^2] or a demonstrative
legacy (which outlines a specific fund from which the gift is to be
made) [^3].
The term used in such circumstances is "ademption", which refers to
the complete or partial withdrawal of a legacy by an act of the
testator during their life.
If the subject matter of the gift no longer exists at the date of the
testator's death then the bequest fails by ademption.
A common example is, as the OP suggested, where a specific item
continues to exist, but it has already been given away during the
testator's lifetime. I assume that the gift in the will simply cannot
happen, as that item is not part of the estate.
There was a hint in the OP that perhaps the lifetime gift needed to be
clawed back by the estate, so that the gift in the will could take
place. Perhaps you could clarify that please?
Ademption is the complete or partial withdrawal of a legacy by an act of
the testator during their life.
The testator gifting an item to one party (A) during their lifetime
withdraws the legacy to a second party (B) stated in the will meaning
the bequest to (B) will fail by ademption as the item no longer forms
part of the testator's estate (now being owned by (A)) and therefore
cannot be passed to (B) by the executors.
I trust that is suitably clear?
Regards
S.P.
FTAOD, if someone has a genuine query concerning something I've posted
that is ambiguous, I am more than happy to clarify matters, if I can and
hope nothing I have said or done in this thread indicated otherwise.
On 09/01/2025 19:12, Simon Parker wrote:
FTAOD, if someone has a genuine query concerning something I've
posted that is ambiguous, I am more than happy to clarify matters, if
I can and hope nothing I have said or done in this thread indicated
otherwise.
Thanks everyone for your help. The position is clear: If the item
isn't in her house (including the clock I was supposed to get :( ) we
can just forget about that clause in the will.
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