CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEESPECIALISTS – ADEMPTION IN WILL DISPUTES OR WILL CONTESTCLAIMS
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the impact of Ademption in Will disputes or Will contest claims
Ademption and Its Impact on Will Disputes in England and Wales
This article explores the concept of ademption, how it arises in the context of will disputes, and what legal options may be available if a gift has failed under this rule.
We have explained in a previous blog post how it is possible for gifts by a Will to fail:
Eight Reasons a Gift by a Will May Fail – Will Claim Solicitors
“Ademption” is one of a number of possible causes and in simple terms it describes the situation where a specific property or identifiable account or other asset is gifted under a Will, but no longer exists at the point of death. In general and in consequence, the gift will fail (is “adeemed”).
This can lead to significant disappointment, particularly where the testator (the person who made the will) had made express promises or where there was a reasonable expectation of inheritance. Consequently, ademption can often trigger or become central to a will dispute.
For example, imagine a will that leaves “my property at 25 Oak Avenue” to the testator’s daughter. If the testator sells that house before death and buys a flat elsewhere, the original gift is adeemed — and unless the will is updated or a clause accounts for the change, the daughter receives nothing.
Why Ademption Matters in Will Claims
Ademption is especially important in the context of will claims because it can radically alter how an estate is distributed. Beneficiaries who expected to inherit something substantial may be left with nothing due to circumstances often outside their control.
These points are frequently argued in estate and inheritance disputes, especially where
communication between the testator and the beneficiaries was poor or where an attorney
or deputy was managing the testator’s affairs in later life.
The Legal Rules Behind Ademption
Under the law of England and Wales, ademption affects specific gifts only. The legal
distinction between different types of gifts is key:
- Specific gifts: Gifts of particular items (e.g., “my Rolex watch” or “my shares in BP”).
- Demonstrative gifts: Gifts of money or value with a specific source (e.g., “£5,000 from my NatWest account”).
- General gifts: Gifts not tied to specific assets (e.g., “£5,000 to my niece”).
Only the first category — specific gifts — is subject to the rule of ademption. If the property no longer exists at death, the gift generally fails, and there is no entitlement to an equivalent or substitute asset.
Exceptions and Recent Developments
While the default position is harsh, there are notable exceptions:
1. Tracing Substituted Assets
If the asset gifted in the will has been replaced by another asset of similar kind, and the change is merely formal or mechanical, courts may find the gift still valid.
2. Sales by Attorneys or Deputies
A significant exception arises where the property was sold by someone acting under a Lasting Power of Attorney or appointed by the Court of Protection under the Mental Capacity Act 2005. In such cases, the beneficiary may have a right to the proceeds of sale
Paragraph 8 of Schedule 2 to the Mental Capacity Act 2005 (MCA 2005) contains an exception to the doctrine of ademption. Where the property of a person lacking capacity (P) has been disposed of by a deputy or by the Court of Protection exercising its powers under MCA 2005, and under P’s Will or intestacy another person would have taken an
interest in the property but for the disposal, and on P’s death any property belonging to P’s estate represents the property disposed of, the other person may take the benefit of any property that has been substituted for the property bequeathed. There are similar provisions in the Mental Health Act 1983.
3. Will Construction and Interpretation
Sometimes, the courts can interpret the testator’s intention in a way that preserves the gift. These interpretative approaches are increasingly relevant in will contests, where ambiguity in wording may give rise to competing claims.
Preventing Ademption and Avoiding Disputes
Ademption-related disputes can often be prevented through careful estate planning and regularly updating the will. From a litigation perspective, these failures are fertile ground for mounting a will claim, particularly where the disappointed beneficiary relied on promises or had a reasonable expectation of benefit.
Can Ademption Be Grounds for Contesting a Will?
While ademption itself is not typically a direct ground to contest a will’s validity, it often plays a central role in will disputes. Where a gift has been adeemed, a beneficiary may explore other legal routes such as challenging the will’s validity, making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, or raising constructive trust arguments.
A lifetime gift by the testator (selling or transferring what would otherwise have been specifically gifted by Will) which was made at a point when he/she did not have mental capacity at the time, would still be considered to have been adeemed, unless the gift was set aside. For example in Rokkan v Rokkan & Another [2021] EWHC 481 (Ch):
Rokkan v Rokkan & Anor [2021] EWHC 481 (Ch) (04 March 2021)
Mr Justice Miles found the following:
The starting point, as explained above, is the principle that a will speaks from the date of death. You read the specific gifts of the will and ask whether the testator held property answering to that description when he died. If not, that is usually the end of things.
84. That is how the Court of Appeal treated the issue in Re Slater. The Court also treated it as well-established that ademption does not depend on the intention of
the testator. Counsel for Per said that he based his argument on Elizabeth’s lack
of knowledge and capacity to act rather than an absence of intention. But that
seems to me to be a distinction without a difference. The point made by the Court
of Appeal was that ademption does not depend on the state of mind of the testator.
As for the lack of capacity, unless and until the transfers are set aside, they
operate in law as her acts.
Conclusion
The rule of ademption is a powerful but sometimes unforgiving principle in the law of succession in England and Wales. It can significantly affect how an estate is distributed, and often lies at the heart of an inheritance dispute or will contest. For beneficiaries and executors alike, understanding how ademption works — and knowing what legal options exist when a gift has failed — is critical.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
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