MGM College of Law

Family Law – I

Topic: - Gifts and Legacies

Submitted By: -

Name: - Tia Gupta

Class: - F.Y. LLB “A”

Roll No.: - 3421

Date: - 20/10/2022

Signature: -

1
Sr. No. Table of Contents Page No.
1. Family Law 3
2. Economic aspects of family law 3-4
3. Indian Succession Act, 1925 4-5
4. Introduction 6-8
5. Types of Gifts 8-12
6. Types of Wills 12-14
7. Legacy 14
8. Section 102 in the Indian Succession Act, 1925 15
9. Types of Legacies 16-21
10. Conclusion 22
11. Bibliography 23
12. Webliography 24

2
Family law: -

This body of law regulating family relationships, including marriage and divorce,
the treatment of children, and related economic matters.

In the past, family law was closely connected with the law of property and succession property
law), and, judging from the records available, it must have originated principally in the economic
and property questions created by the transfer of a female from her father’s family to the power
and guardianship of her husband. Even with regard to the relationship between parent and child,
legal concepts such as guardianship, custody, and legitimacy were associated with family power
structures and family economic interests. Family law also traditionally has to do with matters of
personal status for example, the question of whether a person is to be considered married or
single, legitimate or illegitimate though the incidents and importance of these distinctions often
derive from the law of property.

Family law shares an interest in certain social issues with other areas of law, including criminal
law. For example, one issue that has received considerable attention since the late 20th century is
the very difficult problem of violence within the family, which may take the form of physical
violence by one adult member on another or by an adult on a child or some other violent or
abusive conduct within a family circle. In serious cases the only real solution may be to
terminate cohabitation or to remove an abused child from the family unit into some form of
public or foster custody.

Economic aspects of family law: -

The property of married couples

The comparative legal history of marital property, viewed in broad perspective, covers a period
of about 4,000 years, during most of which a husband was generally regarded as a quasi-
guardian of his wife, who was dependent upon him economically and legally. The
English common law, for example, removed the separate legal personality of a woman when she
married and merged it in that of her husband, though she regained it if she became a widow. Her
husband acquired extensive rights to the administration and ownership of her property, including

3
full ownership of any moneys she received from employment or business, with
no obligation even to give an accounting.

The emancipation of women, which occurred in many countries during the late 19th and early
20th centuries, profoundly affected family law and marital property. The Scandinavian countries
made radical reforms in their marital property laws in the 1920s, introducing a new type of
matrimonial regime in which the spouses retain independent control of their property except for
some items for the disposal of which the consent of the other spouse is required. This
arrangement was influential in the reforms of other countries.

In the 1970s, laws governing marital property came under increasing scrutiny in
England, Belgium, Israel, Canada, and other countries. In the United States, the right of
cohabitating but unmarried couples to property settlements and even to monetary support from
each other at the termination of their relationships was established in a series of court cases.
Property settlements also now typically take into account the non-monetary contributions of the
woman as homemaker and mother, the emotional support she provides to her husband, as well as
the professional or educational sacrifices her role in the marriage may entail.

INDIAN SUCCESSION ACT: -

The Indian Succession Act, 1925 broadly deals with the two categories of succession, viz.
testamentary succession and intestate succession. In a case where there is a written will testamentary
succession is applicable. On the other hand, when there is no will and the properties of the deceased
need to be distributed as per the religious laws, intestate succession is applicable.

Succession for Hindus

In the case of Hindus, the laws relating to the testamentary succession are applicable as per the
Indian Succession Act, 1925. However, the laws relating to the intestate succession are applicable as
per the Hindu Succession Act, 1956.

In the case of intestate succession for Hindus, the Indian Succession Act, 1925 is not applicable due
to the existence of the system of Hindu Undivided Family or HUF as per the Hindu Law. Thus, the

4
Hindu Succession Act, 1956 came into existence in order to deal with the succession as per the
Hindu law and culture.

Succession for Muslims

In the case of Muslims, the Indian Succession Act, 1925 is not applicable to both the testamentary
and intestate succession. In their case, the succession is on the basis of the Quran and other sources.

Hedaya or Fatawa Alamgiri is the guiding authority on the subject of wills for Muslims. As per the
Muslim Law, the properties of the deceased shall be applied in the payment of the following and in
the order below:

1. Funeral and death bed charges.

2. Probate or letters of administration or succession certificate expenses.

3. Payment of any wages due for any services to any laborer, artisan or domestic servant for
rendering of services to the deceased within 3 months just preceding his death.

4. Payment of any other debts of the deceased.

5. Legacies to a maximum of one-third of what remains after all the above payments

6. The remaining two-thirds shall go to heirs as on intestacy.

5
Introduction: -

Gifts and wills both are certain documents that are used while transferring some property from
one person to another. Although both these documents are used for similar purposes, they are
different from each other. A gift is more or less an immediate process that does not take much
time to prepare whereas a will is more of a thoughtful process that takes a longer time.

Concept of gift

A gift in its general sense means a form of reward or a token of appreciation given at weddings,
birthday parties, etc. In terms of law, however, a gift is considered as a transfer of ownership of
property from one person to another.

Provisions of a valid gift under Transfer of Property Act, 1882

All the provisions of a gift are mentioned in the Transfer of Property Act, 1882. According
to Section 122 of the Act, a gift is a transfer of movable or immovable property which is
existing. These transfers should have valid consideration and must be done voluntarily.

Essentials of a valid gift

There should be a donor and donee

The person who transfers the gift is called the donor and the person who accepts the gift is called
the donee. The donor should be a competent person and should have the capacity to enter into a
contract. Whereas, the donee need not be competent to contract. The donee can also be a minor.
A gift made to the general public is invalid but, the donee can be more than one person.

Transfer of ownership

The donor should be the absolute owner of the property and should show interest in the property.
The donor should have a right to transfer the property.

6
Movable or immovable property

The property can be movable, immovable, or of any other kind. However, the only condition is
that the property should be an existing property and should fall under Section 5 of the Act while
making the gift. A gift of a past or future property shall be deemed void.

Acceptance of the gift

The gift should be accepted by the donee. Without acceptance, the gift shall be deemed void. If
the donee is a minor or not competent to contract, then the gift should be accepted by a person on
his behalf, for example, a parent.

Transfer without consideration

The gift should be given as gratitude. It should be transferred without any consideration. Any
consideration given for the gift will be deemed as an exchange and not a gift. In Padam Chand &
Anr. v Lakshmi Devi (2010), the Court held that a gift is a voluntary transfer of property and
should be given without any consideration.

Provisions of a valid gift under the Muslim Law

Under Muslim law, a gift is known as Hiba. Hiba is not included in the provisions of the Transfer
of Property Act 1882; it is governed by the Muslim Law. The Muslims can divide their property
in various ways and one of those ways is through a gift which is known as Hiba. Hiba under
Muslim Law is the immediate transfer of property from one person to another without any
consideration.

Essentials of a valid gift

In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the Court held that the valid
essentials for an immovable property are, a declaration by the donor, acceptance by the donee,
and the transfer of possession from donor to the donee.

7
A declaration by the donor

There should be an intention from the donor to enter into a gift. The gift can be of any means
oral or written. The declaration should not be taken by coercion, threat, etc.

Acceptance by the donee

Under Muslim Law, the non-acceptance of a gift by the donee makes the gift void. If the donee is
a minor, then the gift is valid but it should be accepted by a person who is a guardian of the
minor. The guardians mentioned under the provisions of the Muslim Law are:

• Father

• Father’s executor

• Paternal grandfather

• Paternal grandfather’s executor.

Transfer of possession from donor to the donee

The transfer of Hiba should be from donor to donee. Under Muslim law, as soon as the gift is
transferred to the donee and is accepted by the donee, the transfer becomes valid. The delivery of
possession can be actual and constructive. The gift will be valid from the date of transfer to the
date of acceptance of possession. Registration of transfer under Muslim Law is not necessary.

Types of gifts: -

Void gifts

Void gifts are those which are used for illegal purposes, made by a person who is incompetent to
contract, which is comprised of future as well as existing property, and etc.

8
Inter vivos

Inter vivos is a Latin word that means, while alive. Hence such gifts are given during the
existence of the donor.

Onerous gifts

Onerous gifts are those which are made with an obligation imposed on the donee.

Outright gifts

Outright gifts are those, which are free of any kind of restrictions.

Concept of will: -

A will is a legal document in which a person mentions how he/she is going to distribute the
property after death. The Indian Succession Act, 1925, mentions the provisions regarding a valid
will.

Provisions for a valid will under the Indian Succession Act, 1925

Section 2(h) of the Indian Succession Act 1925 states that a will is a declaration of the intention
of a person with regards to his property, assets. The Act mentions provisions for the Hindus,
Buddhists, Jains, and Sikhs. Muslims are governed according to the Mohammedan Law.

Section 59 of the Act mentions that a person who is of a sound mind and has completed 18 years
of age can make a will. The Section further states that a person who is occasionally of sound
mind or occasionally in an intoxicated state can make a will when he/she is in a sound and sober
state respectively.

Section 72 of the Act mentions that the will should be written in such a way, that the intention of
the person making the will should be known.

9
Essentials of a valid will

Legal Declaration

A will is a legal declaration of the person intending to distribute his/her property. It is not a
contract or a settlement.

The intention of the testator

A testator is a person making the will. The will is a declaration of the desires or intention of the
person to make the will. The will should be legal. The person making the will should not be
threatened or coerced into making a will. This will make the will void and illegal.

With respect to the property

The testator can make a will of his or her own property. The person cannot make a will out of
something which he doesn’t have.

Signature and details of beneficiaries

The will should be signed by the testator and the date of the will should also be mentioned.
Further, the details of the beneficiaries of the will should also be mentioned.

Property of minor:- In case, a minor is a beneficiary, then he/she should appoint a guardian to
take care of the property till the minor attains turns 18.

In the case of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the Court that the main
point of observation while making a will should be, the intention of the testator.

Provisions of a valid will under the Mohammed Law

10
A will under Muslim law is called Wasiyat. It is not governed by the provisions of the Indian
Succession Act. Under Muslim Law, there is a strict rule imposed on making a will. A person is
prohibited from making a will for his entire property. A will for only 1/3rd of the total property
can be made by a Muslim. The will can be made for anyone. This rule was imposed to honor the
word of Prophet Mohammad.

Essentials of a valid will

The capacity of the legator

The legator is the person who makes the will. Hence, such a person should be competent to make
a will, of sound mind, should have attained the age of majority, and should be a Muslim to make
a will.

The consent of the legator

The person making the will should not be coerced or threatened to make the will.

Competence of legatee

The legatee is the person in whose name the will is made. This person should be capable of
holding the property, can be a Muslim or Non-Muslim, and should be alive at the time of making
the will.

Acceptance by the legatee.

11
There should be acceptance and consent of the person in whose name the will is made. The
acceptance can be expressed or implied. Expressed acceptance means acceptance where the
parties explicitly agree to an offer. Implied acceptance means where the parties have not
mentioned their willingness to an offer but it is seen by their actions.

Formalities

No particular formality is required to prepare a will. The will can be oral, written, or in any other
form. In the case of Abdul Manan Khan v Mirtuza Khan (1990), the Court held that no
formalities are required while preparing a valid will.

Types of will: -

Contingent wills

The types of wills which become on the happening of a certain event or contingent, are known as
contingent wills. Such will become void on the non-happening of the event.

Joint wills

Joint wills are those which are prepared by two or more persons.

Concurrent wills

When a person writes two or more wills, one for the disposal of all the immovable property and
the other for the disposal of all the movable property, such wills are known as concurrent wills.

12
 Comparison between gift and will

Now that we have studied about a gift and a will in Hindu and Muslim laws, so what is the
difference between the two.

Points of Distinction A GIFT A WILL

A gift requires to be stamped and A will need not be stamped or

Registration
registered. registered.

A will is a transfer of property

A gift is a transfer of property which is
Type which is done after the death of
done immediately.
the person making the will.

A will can be changed or

A gift deed cannot be revoked. The
revoked as long as the person in
Revocation person to whom a gift is given becomes
whose name the will is made, is
the absolute owner.
alive.

A will comes into effect after

A gift comes into effect immediately after
Effect the death of the person making
it is prepared.
the will.

A gift is prepared by any person who is of A will is prepared according to

Nature sound mind and has attained the majority the family as it is going to get
age. distributed within the family.

A gift can be challenged if it is proved A will can be challenged if it is

Can both these
that the gift was not as per the wish of the within 12 years from the date of

13
documents be challenged donor. the death of the person.

Legacy: -

Legacy, also called Bequest, in law, generally a gift of property by will or testament. The term is
used to denote the disposition of either personal or real property in the event of death.

In Anglo-American law, a legacy of an identified object, such as a particular piece of real estate,
or a described object of personal property, is called a specific legacy. A general legacy, on the
other hand, would involve such things as a sum of money or a number of objects identified
generically, such as any 100 shares of common stock. If the total value of the estate is
insufficient to satisfy all legacies, the specific legacies are satisfied first.

A legacy is termed residuary if the beneficiary is to receive only what is left of the estate after
the satisfaction of all specific and general legacies.

In civil-law countries (e.g., Germany, Japan) legacy and legatee have somewhat different
meanings than in Anglo-American law. In Roman law, upon the death of a person, the totality of
his legal rights and duties passed to a universal successor, the heir. If there was no valid
testament, the heir was determined by the rules of intestate succession. An heir, however, could
also be instituted by testament, and in his testament the testator could charge his heir with
legacies—that is, duties to a third party, called a legatee, to whom the heir had to pay certain
sums of money or give certain assets of the estate. This terminology is still used in the law of
Germany and those countries with similar systems, such as Switzerland and Japan. In
the French civil code and those countries that follow its pattern, however, the term heir is limited
to the universal intestate successor. A person to whom a testator leaves his entire estate is called
a légataire universal; when the estate is divided, the beneficiaries are called légataire à titre
universel. A person who is to receive a fixed sum of money or a particular asset of the estate—
i.e., a legacy.

14
Section 105 in The Indian Succession Act, 1925: -

105. In what case legacy lapses. —

(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and
form part of the residue of the testator’s property, unless it appears by the Will that the testator
intended that it should go to some other person.

(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved
that he survived the testator. Illustrations

(i) The testator bequeaths to B “500 rupees which B owes me”. B dies before the testator; the
legacy lapses.

(ii) A bequest is made to A and his children. A die before the testator, or happens to be dead
when the Will is made. The legacy to A and his children lapses.

(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A die before the
testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A die in the life time of
the testator; B survives the testator. The bequest to B takes effect.

(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he
should die before he completes his eighteenth year, to B. A completes his eighteenth year, and
dies in the lifetime of the testator. The legacy to A lapses, and the bequest to B does not take
effect.

(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show
which died first. The legacy lapses.

15
Types of legacies: -

Legacies given by a will could be of various types-general1, specific,2 demonstrative,3 or

residuary.4 General legacies have been briefly adverted to in the Act, in an earlier section.5
Specific legacies are now more particularly dealt with. The sections concerned with specific
legacies, begin with a definition, but a pretty large part of the sections is really concerned with
what are not specific legacies. Apparently, this overelaboration was considered necessary in view
of two important legal consequences of a legacy being specific, namely, (i) non-abatement,6 and
(ii) possibility of ademption.7

Specific legacies are legacies of a specific part of the testator's property which is distinguished
from all other parts of his property-section 142. Sections 143146 provide what are not specific
legacies. Property specifically bequeathed must be retained in the form left by the testator and
does not abate-sections 147 and 149. The remaining section in the Chapter-section 148-is
concerned not with specific bequests, but with property comprised in a bequest to two or more
persons in succession which is not specifically bequeathed. Ad emption of specific legacies is
governed by sections 152-156, contained in a later chapter of the Act.

Legacies, Abatement and Ademption This month’s CPD paper will cover the legal meaning and
operation of “abatement” and “ad emption”. While these have been covered briefly in an earlier
paper (Failure of Gifts) this paper will look at abatement and ademption in greater detail.
DEFINITIONS Abridged from the Oxford Dictionary of Law: Abatement n. (of legacies) The
reduction or cancellation of legacies where a solvent estate is insufficient to cover all the legacies
provided for in the will or on intestacy after payment of the deceased’s debts. Ademption n. The
cancellation or reduction of a specific legacy because the subject matter of the gift is no longer
part of the testator’s estate at his death, or the testator no longer has the power to dispose of it, or
there is nothing conforming to the description of it in the will. But before we can tackle the
incidence and effect of abatement and ademption we need to revise the use of legacies in wills
and the relevance of the different types of legacies when considering abatement and ademption:

LEGACIES There are three basic types of legacy i) general, ii) specific and iii) demonstrative.
The category that correctly describes a particular gift and into which the legacy falls for legal

16
purposes is a matter of construction. General legacies A general legacy does not specify a
particular item or does not specify one item out of a particular class. A general legacy is provided
out of the testator’s general estate. A general legacy is not made specific merely because the
estate contains the property described by the legacy in the estate. The executors can decide
whether or not to use that property to satisfy the legacy or alternatively to use estate residuary
funds and purchase other property of the same form. The legacy is general unless the property is
referred to specifically as belonging to the testator or otherwise described (and therefore
distinguished) so as to exclude its replacement by other property from the estate. A pecuniary
legacy is by nature a general legacy, but can fall under any of the 3 types. The gift of £100 is a
general legacy. The legacy, subject to contrary intention, carries the interest from the time that it
is payable. That time depends on the express provisions of the will or of any relevant rules of
law. Gifts that are to be paid immediately after the death, that is at the end of the “executor’s
year” unless the will provides otherwise attract interest immediately.

Specific legacies

A specific legacy identifies the subject-matter of a gift existing at the date of the will. For
example, “I give my grandfather clock to A”. Any word of possession or reference indicates that
the testator intended to give that particular property and not some property of the same kind,
purchased by the executors. Thus, if the subject-matter of the gift does not exist time of the
death, subject to there being a contrary intention in the will, the gift is adeemed and fails. If,
however the subject-matter only changes in its perceived form, for example a gift of shares in a
company that has been subject to reorganization, then the legacy will usually be unaffected. A
gift of “my shares” is specific being possessive in construction, as is “such shares as I own in
ABC Ltd at the date of my death” – assumes that the testator dies owning shares. But if there
were no shares in the estate then the gift would lapse. In the case of the alternative legacy
expressed as “I give X (being a number) of shares in ABC plc then the executor would be
required to purchase the specified number of shares in ABC plc if the testator did not own those
shares at the date of his death. Demonstrative legacies A demonstrative legacy describes the fund
or the assets out of which the legacy is to be paid. Therefore, sharing some of the attributes of a
general legacy in that the payment is to be from a specified source, and that the payment
represents but a (general) part of that source. Demonstrative legacies have the advantage that

17
they do not adeem when the source itself is insufficient at the date of the testator’s death to
satisfy the legacy in full. If the fund or property specified is insufficient to meet the legacy in full
then the remainder is payable out of the testator’s general estate, having the same priority as
other general legacies. INTEREST ON LEGACIES General legacies carry interest from the time
payable, subject to contrary intention expressed in the will. Immediate gifts are payable after 1
year from the date of death unless the will states otherwise. Interest applies even though
executors have difficulty in making payment within that time. Interest on general legacies held in
trust for a first named beneficiary with remainder to a second beneficiary absolutely are subject
to the same rule. The first beneficiary is not entitled to receive any interest for the first 12 months
after the testator’s death. The rate of interest which was 6% per the Rules of the Supreme Court,
Order 44, defined now in Rule 10 has been amended by the Civil Procedures Rule, Part 40,
Paragraph 15. The Practice Direction confirms that the rate should be the same as the rate
payable on funds held in court, currently 3%. This rate is subject to contrary provision in the
will. Interest is calculated as simple, unless the court decides otherwise. In Evans v Westcombe
[1999] 2 All ER 777 the PRs knew that a beneficiary existed but they could not find the person;
the court would not grant an order (involving the premium payable for an indemnity policy)
awarding the payment of interest.

It is up to the will writer to keep an eye on the possible incidence of interest becoming payable
where the will as drafted creates complexity leading to possibly lengthy estate administration.
The testator may instruct as to when interest on legacies becomes payable, for example a gift
payable “immediately after my death” carries interest from the date of death irrespective of the
distribution date. A contingent or deferred legacy attracts interest only from the date that the
legacy is payable. If the gift is payable at age 21 then interest runs from that date to the date that
it is paid to the beneficiary. There are 4 exceptional rules where interest on a legacy is carried
from the date of death, they are: i) Where the legacy is in satisfaction of a debt; and ii) A vested
legacy, which is charged on realty; and iii) A legacy to a testator’s own minor child; and iv) A
legacy to any minor for the purpose of maintenance. These rules are again subject to contrary
intention expressed by the will. You should note that in all but the case of i) above there are
circumstances where the rule as expressed above does not apply. In the case of drafting gifts for
the benefit of minors it is always better to provide express rules within the will for the executors
to follow exactly, rather than having to rely upon the somewhat cumbersome, unwieldy

18
provisions governing the payment of interest on legacies as contained in general law.
ABATEMENT The rules by which legacies are necessarily reduced when an estate is
insufficient to pay out the general legacies in full are referred to as abatement. The result of
abatement is that each general legacy effected is reduced in the same proportion to the overall
shortfall of estate funds needed to pay out the general legacies in full. The estate is the amount
after tax, funeral and testamentary expenses and priority legacies. Since the Trustee Act 2000
under s28 the executors’ charging clause is no longer treated as a legacy, it is now known as a
remuneration clause. Charges and fees properly earned are payable even if the estate does not
hold sufficient funds to meet the pecuniary legacies in full. A legacy that is given by the testator
in satisfaction of a debt abates together with pecuniary legacies. This rule applies when the (debt)
legacy as provided by the will is accepted by the legatee and is “far in excess” of the debt. The
authority for this proposition is Re Whitehead [1913] 2 Ch56. However, a creditor seeking to
recover payment of his debt may be given priority over legatees who are merely volunteers (that
is beneficiaries under the terms of the will), see Beyfus v Lawley [1903] AC411. As we have
seen, from the above, a demonstrative legacy does not abate together with general legacies as
long as there are sufficient funds available to pay out that legacy. The demonstrative legacy is
paid in priority to general legacies. If the fund available to pay the demonstrative legacy is not
sufficient the balance that is available is ranked on equal terms with the general legacies and
abates at the same rate Specific legacies do not abate with general legacies but can abate along
with other specific legacies when the general estate is not large enough to pay all the estate debts.
In this eventuality, where the general estate is not sufficiently large enough to pay all the debts
then the residuary estate is used to satisfy debts before the specific legacies are required to
become abated. The order of payment where the estate is solvent followed by abatement is found
in Part II of the First Schedule of the Administration of Estates Act 1925. This gives the order in
which legacies abate and says as follows: • The residue will abate first as the residue is the value
of the estate AFTER the specific legacies have been paid; • General legacies abate after the
residue: including demonstrative legacies where the designated fund is not sufficient to make
payment, see Re Turner [1908] 31 lr. 274; • General legacies i) abate in proportion and ii) must
be exhausted before the next category in order can be used to satisfy the legacies; • Specific and
demonstrative legacies abate according to the amount available to fund them from the designated
fund and they abate rateably according to value. The order of abatement can be varied from the

19
above by express provision in the will. Where during the process of taking instruction the will
writer anticipates that the estate may not be sufficient to meet all of the demands established by
the testator’s wishes a discussion about the order of possible abatement of legacies is
encouraged. The order of payment of debts in the event that the estate is Insolvent estates is
governed by the Insolvency Act 1986, which applies regulation found in the Administration of
Insolvent Estates of Deceased Persons Order 1986. These regulations have not been examined in
this paper. Inheritance tax is a testamentary expense and is paid according to the general rules;
that is generally out of the residue, unless a contrary provision is expressed in the will. For
example, where a legacy is stated to be “subject to tax” the inheritance tax is payable from the
gift and not out of the residue. ADEMPTION is the non-existence of an asset at the testator’s
death as distinct from insufficient assets to meet the stated legacies (abatement). Where the
testator leaves a legacy in the will but the subject-matter is found to be non-existent at the
testator’s death, whether or not the beneficiary receives any benefit from the estate at all will
depend on the type of legacy. Where a specific legacy is named the non-existence of the subject-
matter will mean that the beneficiary receives nothing, for example where the item cannot be
found or has been replaced by another item. This raises issues of definition for the will writer –
consider the difference between “I give my car RG64 XYZ to A” and “I give the car that I own
at my death to A”.

This rule applies even if the specific gift has been sold and the sale proceeds can be traced, or if
the subject-matter has been destroyed and the proceeds of an insurance policy have been
obtained (see Durrant v Friend (1852) 5 De G.) However, in the case of Re Flemings’s Will
Trust [1974] 3 All ER 323 the testator gave a legacy in his will of “my leasehold house 54
Narcissus Road” and later acquired the freehold the court held that the gift passed the testator’s
entire interest including the freehold. Stocks and shares can cause problems as they are prone to
change their description and nature over time. Companies are sold, bought, and reorganized. The
result is that it can be difficult for administrators to decide whether a gift of shares (as defined by
the will) adeems. In Re: Slater [1907] 1 Ch 665 the court held the appropriate test that should be
applied to decide in the case of stocks and shares is “is the change (to the shares) merely in name
or form, but substantially the same thing”. The current test to stop a gift of stocks and shares
adeeming may be as follows: • Is the change merely a name change? • Is there “unity of
security”, has the underpinning capital structure of the company remained unchanged or is there

20
a fundamental change to the company structure and the nature of the shares? • Is the quantity
involved the same of similar? If a specific gift adeems the beneficiary is not entitled to
compensation. If the deceased had entered a binding contract for sale, which had not been
completed before the death the beneficiary is not entitled to the proceeds of the sale: known as
the rule in Lawes v Bennet (1785) 29 ER 1111. If the gift is a demonstrative gift, for example
“£100 payable out of my …………… building society account”, the gift is payable from other
parts of the estate – beginning with the residue. Where there are only sufficient funds available to
pay part of the gift the balance is payable from the residue, see Ashburner v MacGuire (1786) 2
All ER 837. If the gift is a general pecuniary gift, for example “I give £100 to A”, the amount
must be paid as long as the estate is not insolvent. The payment is made either according to the
testator’s express wishes or under the statutory legacy payment order. The amount reduces
rateably (pro-rata) with other general pecuniary legacies if there are insufficient assets available
to pay the legacies in full

21
CONCLUSION: -

In conclusion as the reader can see the subject of legacies and the rules governing their possible
ademption and abatement is wide and subject to much court attention over the years. Whereas it
is the responsibility of executors to decide on the validity and distribution of legacies, the will
writer plays a vital role in ensuring that the testator’s express wishes can be carried out by the
terms of the will once in the hands of the executors.

22
Bibliography: -
Family Law – I. A. Sayeed

23
Webliography: -
https://willtrustfp.co.uk/power-of-attorney/gifts-and-legacies

24