Ademption When A Bequest No Longer Exists

Wills are written years before they operate, and the assets they name change in the interval. Ademption is the rule that decides what happens when a named item is gone.

The rule and its logic

A specific bequest identifies a particular asset: this house, this vehicle, these shares in a named company. If that asset is not in the estate at death, the gift generally fails.

The beneficiary receives nothing in its place. The estate does not owe them the value, because the testator gave a thing rather than a sum.

The reasoning is that disposing of the asset during life is treated as evidence the testator no longer intended the gift, whether or not that is actually true.

Which gifts are exposed

Specific gifts carry the full risk. General gifts of a stated sum are paid from the estate generally and cannot adeem, since money is not a particular object.

Demonstrative gifts sit between the two, naming a sum payable from a particular source but falling back on the estate if that source is exhausted.

How a clause is classified therefore determines the outcome, and the classification turns on drafting rather than on what the testator would have wanted.

How assets disappear without a decision

The obvious case is a sale, but many adem without any deliberate act. A bank merges and accounts are renumbered, or shares are exchanged in a corporate reorganisation.

Property destroyed by fire, taken by compulsory purchase or sold by an agent under a power of attorney during incapacity produces the same result.

That last case is the harshest, since the testator did not make the decision at all and had no opportunity to revise the will afterwards.

The exceptions courts recognise

Many jurisdictions have softened the rule where the asset changed form rather than disappeared, treating replacement property or traceable proceeds as satisfying the gift.

Statutes in some places give the beneficiary a claim to insurance proceeds, condemnation awards or the unpaid balance of a sale price where the asset was disposed of near death.

Where an agent or conservator sold the asset during incapacity, several jurisdictions provide a monetary substitute specifically to prevent an unintended disinheritance.

Drafting around it

Describing a gift by category rather than by identity helps: my principal residence rather than the property at a stated address, which survives a move.

Adding an explicit substitution clause, stating that the beneficiary receives an equivalent sum if the asset is not owned at death, removes the question entirely.

Ademption rules and statutory exceptions vary considerably by jurisdiction and change over time. This is general explanation rather than legal advice, and specific wills should be reviewed by a qualified professional.