Q: My mother has Alzheimer's and is in a nursing home. Last week my aunt told me that my mother had promised to leave her a valuable piece of family jewellery in her Will, a piece which she herself had inherited from their mother. The problem is that my sister and I were unaware of this and as we have joint power of attorney over our mother's affairs we sold the piece of jewellery to help pay for her care. I fear my aunt could become extremely difficult about this when the time comes for our mother's Will to be read. What will happen if the jewellery is bequeathed to her and it is no longer in our mother's estate?
A: In the case of a bequest that relates to a specific item of property, the gift would be what is termed ‘adeemed' if it is no longer in the estate at the time of the testator's death, i.e. the gift will fail. In the case of general bequests or general gifts of cash, however, they can never be adeemed, although they may be waived if the property has left the estate after the testator has been declared incompetent. If the cash in the testator's estate is insufficient to satisfy the gift then generally other assets in the residuary estate will need to be sold to raise the necessary cash.
To avoid confusion about what may or may not be adeemed it is advisable for the phrase "if owned by me at my death" to be included alongside bequests in the Will.
It is important not to confuse the term ‘ademption' with ‘abatement'. Abatement occurs when legacies in a will are reduced due to there being insufficient assets left in the deceased testator's estate when all the liabilities of the estate have been paid.