Gift predating will

Trusts Discussion
1

I would be grateful for some clarification re the rules of ademption as I am getting in a muddle. If a testator has made gifts in the past to his son and wishes them to be taken into account when the executors calculate his share of a residual gift (prima facie divided equally between his children) do the rules of ademption apply to reduce his share unless contrary intention was shown at the time the gift was made? Or does the fact that the will was made after the gift mean that the rules don’t apply?

Does anyone have any suggestions as to wording of the residual gift? I have drafted as follows, (but this is on the assumption the rules automatically apply and I’m not sure that they do?

  1. Gift of Residue

4.1 My Trustees shall divide my residuary estate equally among those of my children who survive me but if either of them die before me his or her issue shall take equally per stirpes the share which their parent would otherwise have inherited but none of my issue shall be entitled to benefit while his parent is eligible.

Declaration of Application of Rules of Ademption

4.2 When calculating the portion to be given to my son I direct that account shall be taken of the following previous payments or gifts made by me in my lifetime.

4.1.1 £30,000 made in 2015

4.2.2 £24,000 made in 2017

4.2.3 £6,000 made in 2017

Many thanks

Anna-Britt Nicholson
Nicholson Clark

2

I wonder if the rules on portion would apply, but if it’s simply a case of ensuring that the children are treated equally over the course of the testator’s life, could you simply include legacies of £60k to each of the other children? That may mean you don’t need clause 4.2.

Eddie Bell
McMillan Williams

3

I would normally deal with this by directing that, in making the division of the estate, those stipulated gifts be brought into hotchpot.

Michael Cutler
Colemans Solicitors LLP

4

I wonder whether the word “ademption” might lead to confusion, as my understanding is that this refers to a specific gift (rather than a share of residue) failing through the specified asset no longer being in the estate?

Ben Leach
Molesworths Bright Clegg