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Ademption NSW

Problems frequently arise when someone drafts their own will and fails to regularly update it because a self-written will is often not drafted to account for the future. Without regular review, a self-written will can quickly become out of date. For instance, the bequeathed assets listed in a will may no longer be in the testator’s possession, or the testator may obtain new assets that are not included in the will. 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, there is some relief from the rules of ademption in statute and common law. This article defines ademption and outlines how it can impact the administration of a deceased estate in New South Wales.

What Is Ademption?

The word ademption comes from the Latin meaning “taking away”. When a testator leaves a specific gift in their will, but that asset is no longer available when they die, then the asset is adeemed and the beneficiary cannot inherit. Legally, if a specific gift is no longer in the testator’s estate, there is an assumption that the testator intended that the beneficiary receive nothing in replacement. An ademption can therefore lead to unexpected and unfair outcomes.

An asset may, in fact, be unavailable because it was lost, destroyed or sold between the time that the testator made the will and when they passed away. For example, a testator may bequeath their family home at a particular address to their child, only for that residence to be sold to pay for accommodation in an aged care facility. In this event, the specific devise of the residential property is adeemed and the gift fails.

Litigating Ademption

The Supreme Court of New South Wales has developed solutions to the problem of ademption. On occasion, the court will presume that the testator intended a gift to be general rather than specific, and the beneficiary will be allocated an asset of equal value to the unavailable gift. In addition, if the gift is substantially the same as identified in the will, and has only changed in name and form, the court is likely to save the gift. This might occur if the gift was funds held in a specified bank account, but the testator had since moved the same funds to another bank account.

In Guardian v Bensley & Ors [2012], the Supreme Court considered the will of a deceased person with a prima facie adeemed specific gift. The will left a specified property to a beneficiary, but the trustee sold the property and purchased an accommodation bond for the testator. The sale proceeds were available in the estate, and the plaintiff asked the court whether the property was in fact adeemed. The court found that the proceeds of the sale were a substantial change of the gift and therefore there was no rectification of the failed gift.

No Ademption Because Of 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 malfeasance, then the court will rectify the adeemed gift. In Reilly v Reilly [2017], the plaintiff commenced court proceedings to rectify an apparent ademption. The plaintiff, in this case, received a specific gift in his father’s will of a large family farming property, but the gift was in danger of failing because the testator’s spouse, acting with her husband’s power of attorney, gave the property to her other children. The court found the transfer of the property to be a fraud on the power because she acted beyond the scope of her authority. In fact, she acted in breach of her fiduciary duty to the deceased in transferring the property from the deceased estate. The Supreme Court found that the deceased estate could recover title to the property and therefore there was no material foundation for ademption.

Avoiding Ademption

A testator can avoid ademption by properly drafting and regularly updating their will. There are some other general rules that can be followed when drafting a specific gift to a beneficiary, such as:

  • It is safer to leave a percentage of the residuary estate as a gift than specific assets;
  • Where the bequest is for a particular property, the testator should state in the will that the beneficiary should receive the sale proceeds of that specific property or any property that was bought in substitution; and
  • Sometimes a testator is unable to update their will to reflect the sale or loss of an asset because they no longer have testamentary capacity. In that event, an appropriate person can apply for a statutory will to ensure that a specific gift does not lapse due to ademption.

Case Study

Courts will generally try to avoid an ademption as it is unjust for a beneficiary to be disadvantaged due to a technicality, but courts in New South Wales have shown a more careful approach to such rectification than other Australian courts.  In RL v NSW Trustee and Guardian [2012] a financial manager sold a specific gift from a protected person’s will under the authority of the NSW Trustee and Guardian Act 2009. In judgment, the court noted the Queensland Supreme Court case of Re Viertel [1996] but rejected its conclusions, finding that a beneficiary should only be able to claim the value of the adeemed asset in limited circumstances. The court found that ademption should only be rectified if the asset did not substantially change, or if a sale of the asset was affected without the testator’s authority.

Armstrong Legal’s contested wills team can assist you if you need to amend your will to prevent ademption, apply for a statutory will for a loved one, or contest the unfair provisions of a will. Please contact our team or call 1300 038 223 for any legal assistance.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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