Abatement of specific gifts which pays the mortgage


I have a will where there is no residue and the only assets are three properties, all the subject of specific gifts as follows.

Property 1 worth approx £500k goes to Mr A and but has an outstanding mortgage of approx £100k

Properties 2 and 3, both of which are mortgage free, combined worth approx £500k go to Mr B who is also the residuary beneficiary.

The will states:

I declare that all sums secured on the properties listed above whether by way of mortgage or otherwise …shall be paid and discharged out of my Estate in exoneration of the properties

Estate is defined as: all my real and personal property of every kind whatever situate over which I have a general power of appointment and the money investments and property from time to time representing all such property.

My question is, should the final distribution be worth £450k to each beneficiary (so that all the specific gifts share the burden of the mortgage on Property 1) or should Mr A receive the full £500k and Mr B £400k so that Property 1 is gifted mortgage free?

Just to add - please ignore any inheritance tax / other liabilities.

£450 each I would say.

Patrick Moroney

Presumably the wording of the will is sufficient to preclude the application of AEA 1925 s35.

In which case I agree with Patrick ie. the £100k mortgage is rateably allocated across the three properties in which case A and B each then receive £450k.

Malcolm Finney