Specific and General Will Devises
When someone drafts their will, he or she can choose to make specific or general will “devises”. In succession law, a devise is a gift of real property left in a will. A specific will devise is a gift of a particular asset that the executor transfers to a beneficiary after the testator’s death. As this article will explore, creating a specific will devise can lead to problems if the will is not clearly drafted and regularly updated to reflect changes to the testator’s asset portfolio.
Specific vs General Will Devises
Typical examples of specific devices include:
- A certain property;
- An antique or heirloom; or
- A particular piece of real estate.
A testator may decide to make both specific and general devises in their will. For example, a testator might leave a specific gift of a particular piece of real estate to one of their children, and leave their other child a general devise of the rest of their estate. A general devise is often expressed as a percentage broadly payable from the general assets of the deceased estate and is recognisable by its lack of description or enumeration.
An important step for every testator is to establish testamentary intention in making a gift. It needs to be obvious from reading the will that the testator does not want a gift to be viewed as a general devise. A testator should use clear language such as “specific devise” and “specifically”, and organise the will into separate categories for general and specific devises. In that way, the court will view a gift that is not listed in the specific devise list as a general gift. When drafting specific devises, it is also appropriate to use phrases such as “if I still own this property at my death”. Testators should list in detail the source of any monetary gift, and clearly define any specific gift. For instance, if the testator gifts a book to a beneficiary but owns two copies, one rare and one a new edition, it is important to differentiate the intended gift.
A demonstrative legacy is a gift that is a mixture of specific and general legacy. As such, a testator can give a general legacy (typically money), but specify the source of the funds. If the specified fund is insufficient, the money will automatically be paid from the residual estate under a general device, unless the testator specifies otherwise in the will.
Ademption Of A Specific Gift
Whether a gift is a specific or general devise typically only matters if an ademption arises in the estate. If a testator names a specific devise in their will and they no longer own that asset when they die, then the gift is “adeemed”. In cases of “ademption”, a gift fails and the beneficiary receives nothing from the estate. For instance, if a testator leaves a specific devise of her diamond ring to her niece in her will, but the ring is lost prior to the testator’s death, then the gift is adeemed and the niece is not entitled to a comparable asset or to the monetary value from the estate.
Ademptons do not arise with general will devises. If a testator leaves a general will devise of $20,000 cash to her son, and the estate does not have sufficient liquid assets, then the executor will sell other property so that the bequest does not fail.
There are some ways to prevent an ademption. A testator should be precise and clear when drafting a specific devise to avoid disappointing a beneficiary. An experienced solicitor will help draft a clearly comprehensible will so that an executor can carry out the testator’s wishes without difficulty.
Rectifying Adeemed Specific Devises
One danger when a testator has made a will that contains specific devises is that they will lose testamentary capacity and not be able to amend their will to reflect the sale of assets. In that circumstance, a suitable person can apply to the Supreme Court under the Succession Act 2006 for a statutory will. The terms of this statutory will should ensure that a specific gift does not fail because of ademption.
Substitution Of Specific Devise
Sometimes a specific devise fails because the executor of the estate is forced to sell the asset to pay the debts of the estate. The Supreme Court of New South Wales considered this particular issue recently in Wardy v NSW Trustee and Guardian . Specifically, the court focused on the question of whether it was appropriate to substitute a specific gift. In this case, the administrator sold a property to pay the substantial debts of the estate, but that particular property was the subject of a specific devise to a beneficiary. The administrator and the beneficiary proposed substituting another property included in the deceased estate. The court referenced the precedent of Joyce v Cam  and stipulated that it was imperative that the beneficiary be put in the same position as if the property had not been sold. After extensive review of comparable values and revenue of both the original specific devise and the proposed alternative, the court found that it was a suitable substitution.
The contested wills team at Armstrong Legal is ready to help you contest an unfair will devise, or help you draft a will with binding specific or general gifts. Please call without delay on 1300 038 223 or make an appointment to discuss your testamentary or litigation needs.