Duhaime's Law Dictionary


Ademption Definition:

When property identified in a will cannot be given to the beneficiary because it no longer belonged to the deceased at the time of death.

Related Terms: Abatement, Conversion, Gift

In Re Tracey, Justice Boyd of the Ontario Supreme Court wrote:

"Ademption means simply the taking away of the benefit by the act of the testator. .... A specific devise of land may be adeemed by the property being sold or conveyed after the date of the will."

In Hurzin v Newmeyer Estate, Justice of the British Columbia Court of Appeal agreed with these words of the trial judge:

"Ademption usually occurs when a testamentary gift is not available to the donee because it has been destroyed or otherwise disposed of by the testator. It occurs as a matter of law irrespective of the testator's intention."

Or in South Africa, these words of Justice Carlisle in Tutor Dative Dove's Minor Children v Estate Dove to describe ademption:

"The ... revocation or recall of a legacy by some act of the testator other than testamentary revocation"

For example, the particular gift may have been destroyed or given away between the time of the will and the time of the testator's death.

As in Re Tracey above, lawyers refer to such a gift as having adeemed.

REFERENCES:

  • Hurzin v. Neumeyer Estate, 69 D.L.R. (4th) 18 (1990)
  • Re Tracey, 25 O.W.R. 413 (1913)
  • Tutor Dative Dove's Minor Children v Estate Dove, 1937 NPD 407

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