LAW OF

SUCCESSION

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GIFTS/LEGACIES

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 GIFTS
üGift=ppty disposed off under a Will
to beneficiaries.

üAlso referred to as ‘legacy’

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Types of Gifts
1) general
2) Specific
3) demonstrative
4) pecuniary
5) residuary

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 (1) general gift
• not distinguished from ppty of the same
kind so covers a gift of the entire
testator’s ppty or the entire ppty of a
particular type.
• a gift that’s payable from general assets.
• a general gift is almost always a gift of
money (i.e. pecuniary)

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 example of a general gift:

You leave behind an estate worth 2 billion. You

also have three grandchildren. You might
choose to leave a general gift that states that
each of your grandchildren will receive 0.5m.
Because you are not stating a specific source
from which that money originates, this type of
gift is considered a general gift.

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 (2) specific gift
• distinguished/severed from other ppty
of the same kind.
• name certain pieces of individually
owned ppty.

Re Rose [1949]: court leans against specific gifts and is

inclined to construe a gift as general as the former tend
to fail for ademption.

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 example of a specific gift:

You might own a collection of silverware owned

by your grandfather that you want to leave to
your eldest daughter. You can do this through a
specific gift.

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 (3) demonstrative gift
• usually a gift of money, but one that also
identifies the source.
• lies between specific and general gifts though
often considered to be general in nature.
• if stated that it should be satisfied ONLY out
of a particular and specified fund or ppty, it
would be considered not to be demonstrative
but specific.

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 example of a demonstrative gift:

You leave behind a house worth $500,000. A

bequest that states your daughter will receive a
gift of $100,000 to be paid from the proceeds of
the sale of your home would be a demonstrative
gift.

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 (4) residuary gift

• Residuary=“left over” property after all valid

specific gifts have been paid out.
• Usually made subject to other payments of
other gifts, debts and liabilities.
• A residuary gift clause simply gives that “left
over” property to a specific beneficiary.

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 residuary gift – cont’d
• A Will writer should ensure that a Will has a gift
of residue.
• Failure to make a proper gift of the residue will
lead to partial intestacy.
• “A general residuary bequest shall comprise all
free property of the testator as at the date of his
death, whether or not acquired after the date of
the will, of which he has not otherwise disposed,
and shall include all free property of which he
may have attempted but failed to dispose, even
though expressly excepted from the gift.” (LSA,
1st Sch, para 28)
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 Doctrine of Election
LSA, s. 24, 3rd schedule
• doctrine of equity
• 3rd Sch, para 7: intention to dispose of ppty not
belonging to testator must be apparent on the
face of the Will, extrinsic evidence not
admissible.

• Rogers v Jones [1877]-pples governing election

• Re Gordon’s Wills’ Trusts [1978]-testator may exclude by
contrary intention
• Peter E. Herbst commentary (eLearning platform)

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 Presumption of Satisfaction
LSA, 1st Schedule, para 64 - 66
• “the donation of a thing with the
intention that it be taken as
extinguishment or satisfaction of some
prior claim of the donee either wholly or
in part.” Lord Chichester v Coventry [1867]
• presupposes an existing legal obligation

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 Application of the presumption
1. Presumed satisfaction of debt - creditor
2. Presumed satisfaction of portion – child
or other person to whom testator stands
in loco parentis

Not applicable to gifts in contemplation of

death (donatio mortis causa)

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FAILURE
OF
GIFTS
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 a) Lapse
LSA, s. 23, 2nd Schedule, para 1 – 7
para 1:
• where legatee predeceases the testator, gift
fails, i.e. lapses.
• burden of proving that legatee has survived
the testator on person alleging survivorship.
• stmt in Will that there shall be no lapse shall
have no effect except and so far as a further
legatee, capable of taking, is designated.

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Lapse – cont’d
• operation of doctrine cannot be excluded in
Will
• legacy to several named persons (not a class)
taking as tenants in common: lapse in
respect of share(s) of any predeceasing the
testator (subject to para 2). Page v Page (1728)
• Note: LSA, s. 43 – survivorship in order of
seniority; spouses presumed to die
simultaneously.

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Lapse - exceptions
• where gift made in discharge of moral
obligation.
• where gift in favour of any child or other issue
of the testator, for any ppty not determinate at
or before death of child or other issue and child
or other issue leaves issues(s) surviving the
testator.
• where gift made to a described class, survivor(s)
shall take the whole, no lapse.
• where gift made to legatees as joint tenants, gift
passes to surviving tenant. (Morley v Bird(1798))

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Lapse – general effect
para 7:
• lapsed gift passes under any residuary
bequest
• Where no residuary bequest or lapsed
gift is itself a share of such bequest & no
ulterior bequest under which it can pass,
then shall pass under intestacy.

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 b) Ademption
LSA, s. 23, 2nd Schedule, para 8 - 14
para 8: where specific gift is made, it cannot take
effect (adeems) if the subject matter:
• does not belong to the testator at the time of
his death;
• has been converted into ppty of a different
kind; substantial change (mere nominal change
not sufficient).
• e.g. sold, given away, destroyed etc.
• testator can express contrary intention to
operation of this doctrine.

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Ademption – principles
• para 9: change of subject matter by wrongful
conversion – not adeemed
• para 10: gift of interest in fund – sale or change;
not adeemed if can be followed & distinguished
• para 11: non-ademption of demonstrative legacy
• para 12: revival of Will does not revive adeemed
legacy
• para 13: no presumption of intention regarding
ademption
• para 14: ademption by subsequent provision

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Ademption – case law
• Durrant v Friend (1852): unclear which 1st, death of
testator or destruction of ppty, ppty deemed to have
perished before, gift adeemed.
• Re Slater [1907]: no ademption if ppty changed in
nature or form only but remained substantially the
same thing.
• Re Calow [1928]: contract to sell the ppty before
execution of will=no ademption, entitleed to
proceeds of sale. If after (even though contract not
completed)=ademption

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c) Lack of knowledge & approval

• mistake, fraud or undue influence

• may lead to failure of gifts, lapse…due to

invalidity of Will

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 d) Uncertainty
LSA, para 25, 1st Schedule
• uncertainty brings about failure of gift.
Palmer v Simmonds (1854)
• exceptions:
a) gift for charitable purpose; or
b) where legatee is expressly or impliedly
given a right of selection, purchase or
disposition.
• dvtp of rules of construction
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 e) operation of s. 13

Attestation by beneficiary or spouse…lack

of further attesation by at least two
additional competent and independent
witnesses leads to failure of that gift.

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 f) slayer or forfeiture rule
LSA, s. 96

• Beneficiary convicted of murder of testator

cannot benefit under testator’s Will
• Applies to aiders and abettors (s. 20, Penal
Code)

Amina Shiraz Yakub v David Baburam Jagatram [2017]

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 g) disclaimer

• refers to the refusal by beneficiary to

take gift made to him under a Will
• entitlement of beneficiary
• gift fails

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