FAMILY LAW (II)

SEMESTER V

Research Paper On:

“Abatement and Ademption of legacies: A critical analysis”

SUBMITTED TO:

Prof. Twinkle Maheshwary

 Professor, NMIMS School of Law

SUBMITTED BY:

Alvin Jaymon

TY BBA LLB

C050
INTRODUCTION

A will or testament is “an instrument through which a person makes disposal of his property to
take effect after his death.” There are three categories of legacies that a testator might include in
their Will: general, specified, and demonstrative legacies. 1A substantial amount of time can pass
between the time a Will is drafted and the testator's death, and circumstances might change,
resulting in the testator's estate being radically different at death. Some assets mentioned in a
Will may no longer exist or be owned by the testator, or the estate may lack sufficient finances to
pay all legacies in their entirety. If a gift is made in a will that is not part of the probate estate, or
if the value of the gift has changed after it was put in the will, the concept of ademption applies,
which governs how the gift's absence or decline in value will be regarded. 2Ademption by
extinction occurs when a specific gift is not included in the probate estate because it was given to
someone else or destroyed. If the probate estate is worth less than what was given in the will, the
abatement procedure will determine how the difference is divided among the beneficiaries.
However, if the testator distributes a specified present to someone else while still alive rather
than the beneficiary named in the will, or if the gift is destroyed, the gift is not included in the
estate. The common law theory of ademption established an irrefutable presumption that the
testator meant to withdraw the gift; as a result, the gift is said to be adeemed, and the
beneficiaries receive nothing. This paper goes on to clarify types of legacies and what ademption
and abatement of legacies are in detail. Case laws have also been referred to for a better
understanding of the topic.

1
Failure of gifts: Abatement and Ademption, Trust corporation, (5 th July, 2018), https://www.swwtrust.co.uk/failure-
of-gifts-abatement-and-ademption/.
2
Smith, Rowena. "Ademption by Extinction." Wis. L. Rev. 6, (1930).
TYPES OF LEGACIES

General, particular, and demonstrative legacies are the three categories of legacies. It's a question
of constructing the category that accurately represents a specific gift and into which the legacy
fits for legal reasons.

General Legacy

A generic legacy is one that is unrelated to any specific item or amount of money, as opposed to
other similar items or amounts of money. 3It is a gift which has a specified value, such as Rs.100,
yet it's generic in that any Rs.100 will suffice. It is just the property's value that matters, not its
identity. If the estate doesn't have enough money to pay the general bequest, certain estate
property may be sold to make up the difference.

Specific Legacy

The legacy is considered to be particular when a testator bequeaths to someone a specific

component of his estate that is distinct from the rest of his estate. In comparison to a broad
legacy, a specific one offers two benefits. It does not abate with the latter when it comes to a lack
of assets. When bequeathed to a person in being and producing interests, the interest accrues
from the date of the testator's death.

Demonstrative Legacy

A demonstrative legacy is one that is directed to be paid out of a specific asset. Although it is by
nature a generic legacy, a specific fund has been identified to satisfy it. A demonstrative legacy
is so broad that if the fund is called in or fails, the legatee will not lose his legacy, but will be
allowed to receive it from the assets; but, it is so narrow that it will not be prone to abate with
general legacies due to a lack of assets. It is, however, subject to abatement if it becomes a
general legacy due to the failure of the fund from which it is to be paid. General presents from a
specific source, such as Rs.100 from my savings account, is an example of demonstrative legacy.

3
Purba Ganguly, Indian succession act, 1925, (July, 2020), https://kclawhsnc.edu.in/wp-
content/uploads/2020/07/Indian-Succession-Act-Ms.-Purba-Ganguly.pdf.
ABATEMENT OF LEGACIES

Indian Succession Act

According to 4S.327 of the above mentioned statue, if the assets are insufficient to pay all of the
general legacies in full after paying debts, necessary expenses, and specific legacies, the latter
shall abate or be diminished in equal proportions, and the executor has no right to pay one
legatee in preference to another, or to retain any money on account of a legacy to himself or to a
third party, unless the will expressly states otherwise. 5The abatement principle would apply to
the distribution of the estate to beneficiaries, implying that the gifts made in the testator's will
would be decreased proportionally and in order based on the type of bequest. The estate would
be insolvent if it lacked sufficient assets to satisfy the testator's obligations, and the legacies
stated in the testator's will would be unable to be paid. If there are assets left over after
obligations are paid but not enough to fully meet all presents, some or all of the gifts will be
cancelled.

Muslim Law

When a donation exceeds the one-third limit and the heirs refuse to assent, the legatees' ratio is
subsidized in order to maintain the bequeathable one-third rule. 6Abatement of legacies refers to
the diminution in the legatees' legacy. The abatement occurs in a rateable manner under Sunni
law, but it is done preferentially under Shia law.

Rateable Distribution

Under Sunni law, this norm of abatement is observed. If a Sunni Muslim bequeaths his property
in a particular ratio that does not exceed one-third, the abatement is done in the same ratio as the
property was divided. Foe e.g. T is a Sunni Muslim who leaves a Will to benefit A, B, and C. He
orders that Rs. 4,500/- be given to A, Rs. 3,000/- to B, and Rs. 1,500/- be given to C, with his
entire property being to Rs. 9,000/-. Only one-third of the whole property is now bequeathable,
according to the rule. As a result, one-third of Rs. 9,000/- equals Rs. 3000/-, the requisite
bequeathable property. The property was split by the legator in the following proportions: 3:2:1

4
Indian Succession Act, 1925, S.327.
5
When There Just Isn’t Enough to Go Around: Abatement and Ademption, Hull & Hull LLP, (20th April, 2017),
https://hullandhull.com/2017/04/abatement-ademption/.

6
Akanksha, Will under the Islamic law of Inheritance, Ipleaders, ( 10 th June, 2019), https://blog.ipleaders.in/islamic-
law-will/
for A, B, and C, respectively. The shares of A, B, and C will be decreased in the same proportion
using the rateable abatement rule. As a result, A's portion will become Rs. 1,500/-, B's share will
become Rs. 1,000/-, and C's share will become Rs. 500/-. 7In the landmark judgment of
Damodar Kashinath Rasane v. Shahajsdibi And Ors the Court stated that it was well established
that a Muhammadan testator, as in that case, controlled by the Shia School of law, a
legator can't make a legal bequest of all his property to one of his descendants to the exclusion of
the other heirs without obtaining the permission of all the heirs after his death.

Preferential Distribution

For abatement, the Shia law acknowledges a distinct rule. If the bequeathable property exceeds
one-third of the entire property and the heirs refuse to grant their assent, the rule of preferred
distribution is followed, according to this school. This means that the legatees' shares will not be
reduced; rather, the share will be allocated on the basis of choice. The sequence in which the
names of the legatees appear in the Will determines the preference. The legatee whose name
appears first in the Will shall receive his entire portion as stipulated in the Will, with the
remainder going to the second legatee, and so on. The distribution comes to an end once one-
third of the property has been completed. As a result, it may be argued that a legatee will either
receive his whole inheritance or nothing at all. For e.g., ‘T' is a Shia Muslim who left a Will in
which A's portion is Rs. 2,000/-, B's share is Rs. 1,000/-, and C's part is similarly Rs. 1,000/-.
The entire value of the property is Rs.9,000/-, which is more than a third of the bequeathable
value. As a result, one-third of Rs. 9,000/- equals Rs. 3,000/-, the required bequeathable amount.
According to the preferred rule, A will receive his entire part of Rs. 2,000/-, B will receive the
remaining Rs. 1,000/-, and C will not receive any share because the bequeathable property has
been depleted after B's portion.

7
Damodar Kashinath Rasane vs. Shahajsdibi and Ors. AIR 1989 Bom 1, 1988.
ADEMPTION OF LEGACIES

Ademption of legacies is discussed from S.152 to S.166 of the act. Brief explanations of the
sections are as follows: 8The bequest is adeemed if anything explicitly given does not belong to
the testator at the time of his death or has been changed into property of a different type; that is,
it cannot take effect since the subject-matter has been removed from the will's operation. The
particular legacy is not adeemed if the change between the date of the will and the testator's
death occurs by operation of law, or in execution of the provisions of any legal document in
which the object bequeathed was held, or without the testator's knowledge or permission. A
demonstrative legacy is due from the testator's general assets if the property on which it is levied
by the will does not exist at the time of the testator's death or has been transformed into property
of a different sort. The fact that items were taken from a specified location for whatever
transitory reason, deception, or without the testator's knowledge or consent do not invalidate a
specific bequest of commodities under a description tying them to that location. The removal of
the given item from the location specified in the will does not constitute an ademption, as the
location is simply mentioned to round out the description of what the testator intended to gift.
Stock explicitly given does not adeem if it is leased to a third party on the condition that it be
replaced, and it is replaced properly, or if it is sold and an equivalent quantity of the same stock
is later acquired and becomes the testator's property after his death. A specific bequest of a right
to receive something of value from a third party is adeemed by the testator receiving it; however,
a bequest of something valuable to be received by the testator from a third person is not adeemed
by the testator or his representative receiving it, unless he mixes it up with his general property,
in which case the legacy is adeemed. The testator's reception of a portion of an entire object
expressly bequeathed serves as an ademption of the legacy to the amount of the money received.
As a result, his acceptance of a portion of an entire money or stock explicitly gifted only counts
as an ademption up to the amount received. When stock explicitly bequeathed does not exist in
whole or in part at the time of the testator's death, the bequest is presumed in full or in part. A
later provision made for the legatee, whether by settlement or otherwise, does not acquit a
bequest entirely or partially.

8
Indian succession act, 1925, S.152-S166.
CONCLUSION

A will is a legal document that grants a legatee a gratuitous right to property that is postponed
until the legator's death. It gives a legator the chance to amend the rule of succession to some
extent. When there is a lack of assets, generic legacies abate first, then demonstrative, and last
specific legacies. If the fund from which the demonstrative legacy is to be paid fails, the
demonstrative legacy is to be paid from general assets, and it is thereafter to be paid from general
legacies. When a specific legacy fails, the general assets are not used to pay for it. If the assets
are insufficient to pay all of the legacies, the chance to do so diminishes in the same proportion
as the other financial legacies left by the will. 9When thinking about ademption, keep in mind
that the Will refers to the testator's death. In accordance with this rule of law, a transfer of
property made after the execution of the will but before the testator's death will not result in an
ademption if the testator re-acquired the property before his death. Ademption does not apply to
general or demonstrative legacies since they do not refer to specific property at the time of the
testator's death and are paid from the estate's general assets. From the Muslim law perspective a
Will allows certain relatives who are technically prohibited from inheritance under Islamic law
to receive a part of the property. The Islamic law of Will permits a person to descend his
possessions to someone of his choosing. At the same time, it preserves a logical balance between
inheritance law and property devolution under a Will.

INTERIM REPORT

https://docs.google.com/document/d/1lFtuLcddGl187lgUmTKrQqq_h_864X9N/edit?
usp=drivesdk&ouid=104887674342269338759&rtpof=true&sd=true&disco=AAAAN7ZuBD8

9
Leath, Thomas H. "Lapse, Abatement and Ademption." NCL Rev. 39 (1960).