CLASSIFICATION OF

GIFTS UNDER A
WILL
Categories of Gifts
Devises & Legacies
 A gift under a will may be either in the form of a devise (gift of immovable property) or a legacy

Devises
 General or Specific:
 A general devise is a gift of any immovable property owned by the testator to the beneficiary under the will
 Specific devise is a gift of a particular type of immovable property to the beneficiary

Legacies
 General, specific, demonstrative or pecuniary
 General legacy is a gift of movable property or money which does not necessarily form part of the testator’s estate at the time of his
death & which is not distinguished from any other thing of the same kind.

 In effect it is not a bequest of any specific part of the testator’s estate but is intended to be provided for out of the general assets owned
by the testator at his death.

 It is a gift payable out of the general assets of the testator w/o specifically identifying the estate given, e.g. Ella bequeaths to Kaponde
“the sum of GHC 200” w/o stating any particular fund out of which it should be paid.

 Gifts of stocks & shares tend to be general gifts, unless the testator specifically described the particular shares in a specified company
Specific Legacy
 A gift of a specified part of the testator’s movable estate which has been clearly identified, e.g. “I bequeath to
BM my car with registration number GE 2222 – 17”

 Robertson v Broadben (1883) 1 App Cas 812 defined it as “everything which a testator, identifying it by a
sufficient description and manifesting an intention that it should be enjoyed or taken in the state and condition
indicated by that description”.

 The legacy must be retained by the executors in preference to a general legacy and must not be sold for
payment of debts, until the testator’s general assets are exhausted.

 The nature of a specific legacy as stated by Jessel MR in Bothamley v Sherson (1875) 1 R 20 Eq 304 is:
“In the first place it is a part of the testator’s property. A general bequest may or may not be part of the
testator’s property. In the next place, it must be a part emphatically, as distinguished from the whole. It must
be what is sometimes called a severed or distinguished part. It must not be the whole, in the meaning pf the
totality of the the testator’s property, or the totality of the general residue of his property after having given
legacies out of it”
Demonstrative Legacy
 Here there is a direction for the payment of money from a particular fund or source
 But where a will directs that a legacy should be paid exclusively rather than primarily out of the a specified fund, then that will be a
specific & not demonstrative legacy

 Ashburner v MacGuire (1786) 2 Bro. Ch 108, Thurlow LC describes it as “it is in its nature a general legacy but there is a particular
fund pointed out to satisfy it”. E.g. “Faisal bequeaths to Eyra the sum of GHC 200 to be paid out of the current account number
xxxxxxxx with GCB”

 In Tieko v Afriyie [1975] GLR 461 @ 464 Owusu-Addo J stated as follows “ the essential distinction there4 b/n a specific legacy & a
demonstrative legacy is one of intention. In the case of the former the testator shows an intention that the beneficiary shall receive
only the specific asset. But in the case of the latter, the testator indicates an intention that the gift shall, be taken primarily from a
specified fund or assets

Annuities:
 Is a legacy of money payable by instalments with each instalment treated as separate legacy.
 They are basically series of legacies payable at intervals. { Re Earl of berkeley (1968) 3 All ER 364
 It may be specific, general or demonstrative

Residuary Legacy
 A bequest of the remainder of the testator’s personal estate after payment of all his debts, liabilities, expenses & other legacies.
 The significance of the nature of a legacy becomes critical in the distribution of of the assets of the
deceased testator.
In circumstances where the assets of the testator are not enough to satisfy all the gift in a will:
 Specific legacy has an advantage over a general legacy

 General legacies are subject to abatement – where the estates not enough to satisfy the general legacies,
all the general legatees will have their gifts cut down in equal proportion unless a contrary intention is
clearly indicated in the will

 Specific legacies are not liable to abate with general legacies. General legacies abate b4 specific
Devises
General Devises: A gift of real estate by a will which does not relates to a any particular property

Specific Devises: a devise of a specific property which form part of the testator’s estate & which is
severed or distinguished from the general estate
 Lapsed Gifts/Dispositions – { s:8 Act 360}

Where a beneficiary under a will predeceases the testator, then in general the gift will fail & falls into
residuary beneficiary hence the beneficiary’s estate cannot benefit from it. The gift is said to have
lapsed – the failure of a testamentary gift due to the death of the beneficiary at the testator’s lifetime,
whether b4 or after the will has been made.

This means that the gift will be taken by the beneficiary to whom property undisposed of has been
given in the will.

Where there is no residuary beneficiary or he predeceases the testator the gift falls into intestacy &
distributed in accordance with the existing intestate succession law (PNDCL 111)

A gift of residue that lapses will fall into intestacy & treated as if the testator had made no will
touching such a property
Exceptions to Lapsed dispositions {s: 8(2) Act 360}
① Gift to the issues of the testator
 Unless a contrary intention appears expressly in the will, if a child of a testator predeceases the testator, but leaves an issue
surviving him, the gift will be saved

 The issue of the testator’s child saving the gift must be an issue surviving the testator. The effect is that a posthumous issue
of a deceased testator’s child cannot save a gift {Re Hayter [1937] 2 All ER 110}

 Per s: 8(2) the gift to a child or issue will not be saved from lapse if the gift in the will is only a life estate or other
determinable estate which would determine with the life of the beneficiary. { Re Wolson, Wolson v Jackson[1939] Ch 780

 The requirement of subsection 2 that the issues of the descendants taking per stirpes means that all the surviving issue of
the dead beneficiary, irrespective of their number would count as one in taking the portion of the dead descendant.

 Quarcoopome v Quarcoopome [1962] GLR 16 per Ollennu J :

 “It follows that upon the death of the testator the property vested in those children who survived him, & those children took as tenant
in common holding in equal shares, each for his or her life. The evidence in the case shows that 9 of the devisees named in the will
survived the testator, their father, & that 4 of those 9 children of the Plaintiff have since died. Therefore, the life interest which each of
such children had, died with him or her, and the shares which each child had fell into residue”
 Above decision now subject to s: 8(2) Act 360
 Doctrine of Commorientes – s: 7(7) Act 360
This is to the effect that where a testator & a beneficiary under his will die in circumstances:
① In which it appears that their death were simultaneous; or
② Rendering it uncertain which of them survived the other

The beneficiary is deemed to have survived the testator for all purposes affecting the entitlement to
property under the will.

Where the beneficiary has also left the said gift to the testator, then the testator shall be deemed to have
survived the beneficiary

It has the purpose of saving a gift which would otherwise lapse.

The death of the 2 need not occur in the same event

 Ademption of Gifts
 Where a gift of a specific property has ceased to exist or to belong to the testator at the time of his death, or
even the said gift has undergone significant change or conversion to the extent that it no longer satisfies the
description given in the will. In such circumstances, the gift has become adeemed & there4 cannot take
effect

 Ademption may happen as a result of an act of God, act of the testator or an act of a duly constituted
authority

 The effect of ademption is that the will remains valid but the donee does not receive that which was gifted
to him.

 The doctrine applies irrespective of the testator’s intentions as such a codicil republishing the will cannot
pass to a beneficiary anything into which the gift may have already be converted

 It is only a specific gift which may be adeemed and not general legacies & where there is doubt as to
whether a gift is specific or general, the principle is to treat the gift as being general so as to avoid ademption
Act of the Testator
 A testator can sell or make an inter vivos gift of a property to some person although the same property has
been given by his will to another person.

 A contract of sale entered into by a testator which is binding on him at his death, although there has been not
effective sale or transfer of ownership it is enough to cause ademption

 In a contract for sale the beneficiary will be entitled to the enjoyment of the property or the rent & profits
from it until completion of the sale or when completion may reasonably be expected

 Shares of a company or land subject to a lease is given to a donee & after which an option to purchase is
created in favour of another then the property may be adeemed if the option is exercised.

 But where the will is made or republished & the property specifically given after the option to purchase is
created, the specific donee will be entitled to either the property or the proceeds of its sale if the option is
exercised after the testator’s death.
Election
 Simply put an individual who takes a benefit under an instrument must adopt the whole of that instrument &
there4 renounce every right inconsistent with the provisions of the instrument.

 In effect a beneficiary under a will is required to accept or reject the whole of the contents of the gift

 This is carried out when a testator leaves a substantial property under his will to the owner of another property
on condition that that owner transfers that property to the person of the testator’s choice.

 The beneficiary may elect against the will (keep his property) or elect on the will (transfer his property to the
other person)

 If however, he elects against the will the beneficiary may not necessarily forfeit the entire gift but must give
up so much of the gift to compensate the other for the lost of the other property

 Codrington v Codrington [1875] LR 7 HL 854 also Re Lord Chessam[1886] 31 Ch D 473

Satisfaction
o A testator gives a pecuniary legacy to a creditor, equity presume that the legacy was given in satisfaction of
the debt

o Creditor is not permitted to demand both the debt & the legacy unless there is a clear evidence to rebut the
presumption that the testator intended to pay the debt

Thank you
Act of God
 Where a gift ceases to exist as a result of an act of God or force majeure the gift is adeemed. Durrant v Friend (1852) 64 E.R. 1145
– testator gave specific chattels to a named beneficiary. He also insured all the articles which he took on a sea voyage. Ship was lost
at sea & the testator perished with the goods. Insurance money paid to executors. Held: testator & chattels perished together hence
beneficiary has no interest in the chattel & there4 the insurance money

Statute/Duly constituted Authority

 A gift may be adeemed if a statute abolishes the interest. In Re Galway[1950] Ch 1 – after a will the testator’s rights in a coal mine
were expropriated by statute providing for the payment of compensation. Issue: whether beneficiary entitled to compensation in
place of the coal mine or compensation was a separate personalty hence falling into the residue. Held: gift failed by ademption

Alteration:
 Where the subject matter of a gift ceases to satisfy the description by which it is given, the property will be considered adeemed.
This is b’cos it has been converted into some other thing.

 However, the alteration must be significant to substantially alter the nature of the property in order for an ademption to occur.

 Applicable test stated in Re Slater, Slater v Slater [1907] 1 Ch 665 @ 672:

“you have to ask yourself, Where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless
unless you can trace it in this sense, that you find something which has been changed in name & form only, but which is substantially the same
thing”