Ademption of a Specific Legacy

I am dealing with an estate where the Testatrix made a holographic Will. In it she states “I give and bequeath my car, computer and printer to X”. She owned a vehicle at the date of her death but not the same one she owned when the Will was prepared.

There appears to be conflicting case law on whether the gift of the vehicle to X fails, or not.

I would very much appreciate views on whether the gift of the vehicle fails.

Martyn Dixon
Harold Bell Infields & Co

Hi Martyn,
I believe that this gift would pass to be valid. As the Will states “my car” I believe this means any car that the testatrix owns at the time of her death. If she has mentioned a particular make/model of car which was sold before death and replaced with another car, then the gift would fail as that specifically mentioned car is no longer part of her death estate.

I would tend to agree with Gavin. WA 1837 s24 is relevant here.

There is no reference to a specific car (eg my blue Aston Martin) or any reference to the car owned at the date of the will. Under s24 at the time of death the testator owned a car (ie my car) albeit the car was different from the car owned at the date the will was made. The “subject matter” of the gift (ie a car) subsists at the date of death; hence no ademption.

Malcolm Finney

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