Today’s blog is written by Jessica J. Butler, Law Clerk at Fasken LLP.

The world of wills and estates is a complex one, and it can be easy to lose sight of the bigger picture.  A refresh of keystone practice elements can help remind us to see the forest through the trees.  In this blog, we’ll work through some of the basics of gifting using the concepts of ademption and abatement.

Ademption

The concept of ademption sparks from section 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) which says:

“Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,

(a)  the property of the testator; and

(b)  the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2).”

In other words, the Will speaks from the date of death.  Therefore, a gift for a specific asset that cannot be located on the date of death (whether because it was sold, given away, disposed of or destroyed during the deceased’s lifetime) is considered revoked or withdrawn such that the intended recipient of the specific gift receives nothing.  In this situation, this means that the gift has adeemed.

The doctrine of ademption operates on the basis of the presumption that if a testator disposes of property gifted in their Will, then the testator’s intention was to no longer give that property to the intended beneficiary.  There are, of course, exceptions:

• Guardian for Property or Continuing Power of Attorney for Property

Pursuant to section 36(1) of the Substitute Decisions Act, SO 1992, c 30, (the “SDA”), the doctrine of ademption does not apply to property that is the subject of a specific testamentary gift which is disposed of by a guardian for property or a person acting under a continuing power of attorney for property.  In this case, the presumption that a testator intended to revoke the gift by disposing of the asset cannot apply because the testator is deemed to no longer have capacity and therefore, there can be no intention.

• Rights in Place of Property Devised

Pursuant to section 20(2) of the SLRA, certain circumstances create the existence of rights in place of property devised such that the beneficiary of the otherwise adeemed gift may be allowed under the SLRA to receive the right in place of such property.  For example, the testator perishes in a house fire, which also destroys the house.  The house was devised to the testator’s daughter.  The specific asset cannot technically be found on the date of death such that the gift adeems.  However, under s.20(2)(b) of the SLRA, the testator’s daughter would have a right to receive the proceeds of the insurance policy on the house such that she would receive substituted property via the right to payment of the insurance proceeds.

Abatement

In contrast, abatement is the process of payment of expenses and gifts by the estate assets.  If there are insufficient assets to satisfy the payment of debts, taxes and expenses associated with the administration of the estate, then the estate is insolvent.  When the estate is solvent but there is not sufficient property to satisfy all gifts made, then some gifts will abate.  In this scenario, there is an order of abatement which depends on the nature of the gift:

1. general legacies (gifts of a specific dollar amount to be paid from the residue) abate rateably;
2. demonstrative legacies (gifts of cash or trust funds derived from specific assets);
3. specific legacies (gifts of particular personal property); and, lastly,
4. devises (gifts of real property).

The ordering of abatement is subject to a contrary intention in the Will such that a testator can specify a preferred ordering of payment for certain legacies – the contrary intention cannot skip over the payment of debts, taxes and other estate liabilities in favour of satisfying legacies first.  The main takeaway here is that if the residue of an estate is insufficient to satisfy liabilities, then the doctrine of abatement will be in effect – if a testator is aware this is a possibility, they may wish to reconsider the types of gifts left and to whom, or they may wish to make a contrary intention to ensure that a certain legacy is paid before another in the event of abatement.

In Conclusion

Ademption and abatement can be commonplace events in the administration of an estate, which are usually unintended by the testator.

Using nuanced language such as “if still owned by me at my death”, and avoiding making gifts that are too ambiguous in description, are helpful tips when it comes to trying to avoid ademption.

Ascertaining a testator’s liabilities (including those that arise on the testator’s death) can provide the foresight needed in determining whether the doctrine of abatement may be an issue that can be resolved while the testator is still alive.

Gathering sufficient information on the assets and liabilities of the testator during the planning stages, as well as having clear and frank discussions about the testator’s ultimate goals and intentions, can help avoid such pitfalls.