INDIAN JOURNAL OF LEGAL REVIEW

Volume I Issue II, 2022

ISSN - 2583-2344

books, research articles and web sources and Statutes were

referred for the paper.
ADEMPTION OF LEGACIES
By referring to different research paper and articles it was
HARDIK GUPTA easy to compare and cross check the claims made in
different papers and thus made the study reliable.
Best Citation - HARDIK GUPTA, ADEMPTION OF
LEGACIES, 2 IJLR 1, 2022
LIMITATIONS

While full efforts were made to do justice with this topic

ABSTRACT
but still there were some limitations occurring during the
research. The problem with material selection was also
The paper deals with the analysis of the provisions of
there because the aim was to use only reliable, authentic
ademption of legacies in the Indian succession act 1925.
and trusted work. Also, as there is a lot to study and a deep
The subject is inserted in the chapter XVI of the act and
analysis is required for such a topic it was felt that the
specifically deals with what all constitute ademption of
research done was not enough because of lack of content in
legacy and what all do not? The meaning of the term means
relation to the topic.
the extinction of legacy either due to extinction or legacy or
by an act of testator when he himself uses the legacy and
INTRODUCTION
exhausts it. Ademption also takes place when the legatee is
transferred the legacy before the death of the testator and in The word ademption literally means “extinction” and the
such case the legatee is not entitled to that legacy which he term legacy means “an amount of money or property left to
receives after the death of the testator, this type of someone in a will” and thus the term as a whole means the
ademption is called ademption by satisfaction. In the extinction of the legacies bequeathed by the testator in favor
following parts of the paper the types of ademption, along of the beneficiary of the will. The concept of ademption of
with what all constitute ademption of legacy are dealt with legacy is not new in the Indian context, it is rather more
in the light of the act. than 90 years old and has been incorporated in the Indian
legal system by the help of English law in the Indian
RESEARCH PROBLEM Succession of Act, 1925. The Chapter XVI deals
specifically with the ademption of legacy. The concept is
This study aims at finding out to answers and thus it will
usually applicable in the context of specific legacies on
deal with the following two questions:
extinction of subject matter of which the ademption of that

1. What is the concept of ademption of legacies? legacy takes place due to its absence. The main problem

2. What are the different types of ademption? occurs when the beneficiary is deprived of its interests and

3. What are the legacies which can be adeemed? is not even compensated for it. Various courts interpret is in
different ways as some try to see the intent of the testator
behind the will, while some construct it as, circumstance or
RESEARCH METHODOLOY acts leading to it, but ideally the black letters of the law are
followed by literal interpretation of the words in the act.
The research was based on the study of “Ademption of Thus, the act of 1925 tries to cover all the possible
Legacies” for which various articles, statues, case laws and scenarios in which the ademption may take place and
research papers were studied. Only secondary sources have exception to such situations. The ademption does not
been referred for this study. Secondary sources including

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always deprive the beneficiary of his interest in the property They are stratified based on the subject matter and the mode
as seen in concept the ademption by satisfaction, which is of their execution on the death of the testator.
another type of ademption of legacy in which the legacy
The main flaw in the specified legacy is that it is at the
which the legatee was to get after the death of testator is
verge of being adeemed by the act of a third party or any
either reduced or extinct due to his withdrawing the same
other cause of action which may lead to its extinction and
before the death of testator and thus receives lesser or no
thereafter the legatee will lose all the rights over it in
part of it after the death of testator depending upon the
absence of the subject matter and will not even be entitled
amount of asset he withdraws. The main difference in both
to compensation thereof, because a specific legacy is a legal
these types of ademption is that in the ademption by
or equitable gift of a specified object or interest that forms
extinction the beneficiary is deprived on the subject matter
part of the testator's estate. It must be recognised by a
as well as the compensation arising out of it, but in
ademption by satisfaction the beneficiary is not deprived of suitable description and segregated from the rest of the
testator's personal assets in favour of the specific legatee.
the same but is rather given the benefits in part or full even
Thus it requires to under go certain changes in the concept
before the death of the testator.
so as to benefit the legatee and make good for his loses and
There are many other circumstances which can raise the thus in the English law the concept of intent of testator, to
question of ademption on certain property after the death of help out in such cases, but in Bhaskaran Pillai v. Narayanan
testator which many either due to change in location, Aaan it was held that, “ademption of a legacy does not
subject matter, etc. of the legacy and thus in the further depend on the intention of the testator, but is a conclusion
parts of the paper these questions are dealt with suitable of law from certain events or conduct.”1 Reliance was
illustrations. placed on a foreign judgment of Humphreys v. Humphreys
Lord Thurlow, where the Lord Chancellor, was satisfied
ADEMPTION OF LEGACIES "that the only rule to be adhered to was to see whether the
subject of the specific bequest remained in specie at the
As discussed above the legacy is considered to be adeemed time of the testator's death; for, if it did not, then there must
when the subject matter of the will or the legacy is no be an end of the bequest; and that the idea of discussing
longer in the possession of the testator or the subject matter what were the particular motives and intention of the
no longer belongs to him, in such cases it is considered that testator in each case, in destroying the subject of the
the legacy did not exist and the beneficiary is not bequest, would be productive of endless uncertainty and
compensated for the ademption. The ademption can take confusion."2
place due to many reasons, which are listed in the Indian Also, to avoid such an ademption of specific legacy the
succession act as to what all constitute to ademption of gifts made should be less specific in nature, for e.g., “a gift
legacy and thus, trying to make situations unambiguous. may be worded to refer to all moneys from ‘all bank and
There are three types of legacies under the concept of will, building society accounts’ at death rather than money from
they are legacy: a specific bank account. If a gift is of money from a specific
bank account is made and such bank account is closed
i) general,
between attestation and death, there is a risk that the gift
ii) specific and could adeem. However, a gift of money from all bank
accounts would only fail if there are none at all in the estate
iii) demonstrative.

1 Bhaskaran Pillai v. Narayanan Aaan, (1965 KLT 1289)

2 Thankamma v. Vivekanandan, 2011 (3) KLJ 118

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at death.”3 Other than this the legacy can be made suggests, does not deprive the legatee of his interest but
demonstrative legacy as Demonstrative legacy carry on rather it satisfies him. In ademption by satisfaction the
them the benefit that they do not adeem where the source is person so entitled to receive the legacy is not deprived by
insufficient to fully meet the bequest at the time of the the legacy due to its extinction or loss but rather in this the
testator's death. If the specified fund is insufficient, the legatee or beneficiary receives the legacy in part or full
bequest will be made out of the testator's general assets. even before the death of the testator so as to satisfy his
And such a demonstrative legacy which turns on to the needs. In ademption by satisfaction only the time of
general legacy in absence of insufficient funds from the transferring the legacy is changed and not the subject matter
source, then such a legacy is not subjected to abatement like of the same. It covers both specific bequests and devises, as
the other general legacies due to lack of funds and assets. well as a general bequest or legacy given from the testator's
estate's general assets. If there is a parent-child or
TYPES OFADEMPTION grandparent-grandchild relationship, many states assume
that a gift given while the testator is alive is in place of a
After having an overview on how different types of legacies
testamentary gift if the topic of the gift is the same as the
are affected by ademption, we shall now look onto the types
subject of a provision of the will. Otherwise, unless there is
of ademption. Ademption are mainly of two types, i.e.,
independent proof, such as specific words or writings,
Ademption by Extinction and Ademption by satisfaction:
indicating the testator intended for this to happen, an
1. Ademption by Extinction: ademption by satisfaction will not be found. For example,
As discussed above ademption by extinction is the transfer “a grandparent may decide to give a grandchild the money
of specific property given in a will by the testator in order that is already bequeathed in a will while the grandparent is
to nullify the bequest. When a testator devises a specific still alive to help pay for the grandchild’s college.”4
piece of property in his or her will, the testator no longer
owns that property or the property is materially modified at Thus, the main difference in both these types of ademption

the time of his or her death, this is known as extinction. As is that in the ademption by extinction the beneficiary is

a result, the explicitly created property is adeemed, and the deprived on the subject matter as well as the compensation

devise fails. arising out of it, but in ademption by satisfaction the

beneficiary is not deprived of the same but is rather given
When a property specified in a will is no longer in the the benefits in part or full even before the death of the
estate's control, the property or its monetary equivalent is testator and thus, it can be said to be an ademption in the
not transmitted to the beneficiary, according to the general form that the legacy which he was to get after the death of
rule of ademption by extinction. When this happens, the testator is either reduced or extinct due to his withdrawing
property is marked as adeemed. Ademption by extinction is the same before the death of testator and thus receives
the most common form of ademption which creates a loss lesser or no part of it after the death of testator depending
to the legatee but in ademption by satisfaction the concept upon the amount of asset he withdraws.
is different.
ADEMPTION AS PER THE INDIAN SUCCESSION
2. Ademption by Satisfaction: ACT, 1925

Ademption by satisfaction can not be considered in itself as The Indian succession act, 1925 deals with “Ademption of
a true form of ademption, as satisfaction by the name legacies” specifically in the chapter XVI of the act from

3Smith, C., 2019. Ademption: What Is It and How Can It Be Avoided? — 4Bankrate. n.d. Ademption Definition | Bankrate.com. [online]
WillPack. [online] WillPack.

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sections 152-166, where it lays out what all constitute to 4. Section 162: Conversion of Specific legacy into General
ademption and what are the exceptions and scenarios in legacy.
which the ademption does not take place, which we will
discuss in this part of the paper. When the legacy is specific to be received by the
beneficiary but is received in part by the testator himself
Ademption takes place in the following cases as per the act: and is he mixes that with the other general estate, than the
bequest seizes to be specific and is adeemed as the property
1. Section 154: When the given gift was to be received by the has now been shifted to the general estate of the testator and
legatee from a third party (rather than the testator), and that will be transferred to heirs as general legacy.
gift was received by the Testator himself during his lifetime
(naturally, nothing remains to be received), legacy is EXCEPTIONS TO ADEMPTION OF LEGACY
adeemed. E.g., A dies with a testament bequeathing the
amount of debt to be received by C in favour of B, but if as 1. Section 160: Temporary removal
himself in his lifetime receives it and makes no such When goods/property bequeathed are removed for any

appropriate changes in the testament than such a debt temporary cause, by fraud or without the

recovered will go in the general legacy of A and will not be knowledge/sanction of the Testator legacy is not adeemed.

received by B as a specified legacy. Thus, it is important When goods are removed for a temporary period of time

that the testator makes appropriate changes in the will if he and there is a chance of recovering them, in such a case the

himself receives such an asset himself. legacy is not adeemed. There may be scenarios in which the
goods need to be removed for either saving their material
substance or any other cause and for removing them the
2. Section 155: If the Testator, instead of entire amount of
sanction of testator has not been provided and then after
property has received only a part, the legacy is adeemed to
they still come under the testator’s possession, in such case
that extent. In the above scenario if A was to receive
the legacy is not adeemed as far as there remains a chance
₹10,000 from C which he has bequeathed to be received by
of recovering them back. E.g., A bequeaths all house goods
B after his death and if A himself receive ₹3000 from C
in his dwelling house in Calcutta at the time of his death.
than the legacy is to adeemed to the extent of only ₹3000
The goods are removed to save him from fire. Legacy is not
and the rest will still be in favour of B. Thus, this type of
adeemed.
legacy is also known as Partial ademption of legacy. This is
also expressed in the Section 156 of the act as, “If a portion 2. Section 161: Changing location of assets does nor adeem
of an entire fund or stock bequeathed is received by the the legacy.

Testator, the fund/stock operates as an ademption only to When in a will the location of the goods is used only to

the extent amount received and residue of the fund/stock complete the description of the goods, but if for reasons the

shall be applicable to the discharge of the specific legacy.” goods are shifted to some other place without changing the
subject matter of the goods specified, then the goods will
3. Section 158: Section 158 is nothing but deals with
not be adeemed so far as the goods remain the same and
Ademption of legacy by extinction which has been dealt in
only the location or position of the goods is changed. E.g.,
detail in the above parts of the paper and section 159 is to
discussed in that part as Partial ademption of legacy which A bequests a diamond necklace for his wife kept in the
locker of “Bank of Children” but the same diamond
says that “When stock exists only in part at the Testator’s
necklace is transferred to the locker of “Bank of Adults”,
death, the legacy is adeemed partly.”
the change in location of the diamond necklace will not
adeem the legacy only for the reason that the location of the
subject matter has changed.

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bequeathed is specific in nature gets extinct after the death

3. Section 162: As we saw above that when the legacy specific of testator and thus, gives recourse as to what should be
to be received by the beneficiary but is received in part by done in such situations. In such situations the beneficiary is
the testator himself and is he mixes that with the other not entitled to claim any damages or compensation and
general estate, than the bequest seizes to be specific and is thus, neglects the interest of the beneficiary. Many courts
adeemed as the property has now been shifted to the general try to see the intent behind the will of the testator and some
estate of the testator and will be transferred to heirs as see the situations and circumstances leading to it to decide
general legacy. such cases. More over for the help of the court and giving a
The same section 162 also provides for a condition in which literal interpretation the act specifies various situation in
if the testator does not mix the legacy with the general which the legacy will be deemed to be adeemed and also
estate and keeps it separate then the legacy is not adeemed exceptions to its and is thus, a useful law.
for the reason that the legacy is still specified and has not
been changed by mixing with general legacy. REFERENCES
1. The Indian Succession Act, 1925.
4. Section 164: Change of subject without testator’s
2. Bhaskaran Pillai v. Narayanan Aaan, (1965 KLT 1289)
knowledge:
3. Celantano Estate v Ross 2014 BCSC 27

Where with the duration of time the subject changes its 4. Thankamma v. Vivekanandan, 2011 (3) KLJ 118

from the date of will to the date of date of testator’s death 5. 2021. Legacies, Abatement and Ademption. [online]

and the change takes place without the knowledge or Available at: <https://r7djdiq1beic5y3k7nc4bqj-

sanction of the testator, the legacy is not adeemed, until and wpengine.netdna-ssl.com/wp-

unless it is implied that the legacy bequeathed is the same content/uploads/2017/10/Abatement-and-Ademption.pdf>

but has changed for only due to time. E.g., A bequeaths is 6. Bankrate. n.d. Ademption Definition | Bankrate.com.

Fertile land to his eldest son, E, with the locations of the [online] Available at:

land specified in the will, but after 10 years when the <https://www.bankrate.com/glossary/a/ademption>

testator dies, the land which was specified to be bequeathed 7. Disinherited. 2021. The 3 Types of Legacies Gifts In Wills |

to E turns barren, the legacy is not adeemed due to this Disinherited. [online] Available at:

conversion so far as the location of the land specified <https://disinherited.com/legal-definitions-and-terms/the-3-

remains same. types-of-legacies-gifts-in-wills-general-demonstrative-and-

specific/>
5. When stock explicitly donated is sold and an equivalent
8. Sharma, A., n.d. Short notes on Ademption of legacies.
quantity of the same stock is later bought and becomes the
[online] PreserveArticles.com: Preserving Your Articles for
Testator's property after his death (Section 166).
Eternity. Available at:
6. When stock is lent with the understanding that it would be
<https://www.preservearticles.com/education/short-notes-
replaced, and it is, in fact, replaced (Section 165).5
on-ademption-of-legacies/21935>

CONCLUSION 9. Smith, C., 2019. Ademption: What Is It and How Can It Be

Avoided? — WillPack. [online] WillPack. Available at:
The concept of ademption of legacies has been developed in <https://www.willpack.co.uk/ademption-what-is-it-and-
the English law and has shown its reflection in the Indian how-can-it-be-avoided/>
law as well by the “Indian Succession Act, 1925”. The
concept has been used to deal in situations where the legacy

5Sharma, A., n.d. Short notes on Ademption of legacies. [online]

PreserveArticles.com: Preserving Your Articles for Eternity

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