Ademption is taking away of a legacy which was before bequeathed. Strictly speaking, ademption is applicable only to specific legacies. The word ademption is considered as synonymous with the word “extinction.”

It should be observed here that if the stock or money so bequeathed be sold or disposed of, there is complete extinction of the subject and nothing remains to which the word of the Will can apply; because it proceeds from such sale or disposition but if some other properties were to be substituted and permitted to pass, the effect would be to convert a specific legacy into a General legacy.

After making a will, the Testator may transfer other properties to the legacy and may either by express words or by application of law, substitute the second gift for the one contained in his will, the legacy is thereby adeemed or taken away from the will. The ademption is occasioned by the act of the testator alone. The ademption may result in the partial or total loss of legacy. If, however, the ademption affects no other provision of the will, the testamentary document still remains in full force and effect as to its other provisions. If the ademption is total, the entire legacy is eliminated. This is applicable to the will of Hindus, Buddhists, Sikhs and Jains.

Illustration:

ADVERTISEMENTS:

(i) A bequeaths to B the Diamond Ring presented to him by C. Then A in his life time only sells diamond ring. The legacy is adeemed.

(ii) A bequeaths to B all the horses in the stable. At the death of A, no horse was in the stable. The legacy is adeemed.

(iii) A bequeaths to B certain bales of goods. A takes the goods with him on voyage. The ship and goods are lost at sea. The legacy is adeemed.

Ademption takes place in the following cases:

ADVERTISEMENTS:

1. When the gift bequeathed was to be received from the third party (and not from the testator) by the legatee and that gift was received by the Testator himself in his life time (naturally, therefore, then nothing remains to be received), legacy is adeemed (Section 154). For example, A bequeaths to B the debt which C owed to him. C discharged his debt by paying off the amount to A. The legacy is adeemed.

2. If the Testator, instead of entire amount of property has received only a part, the legacy is adeemed to that extent. A bequeaths Rs. 10,000/ debt to be received from C to B. A receives only Rs. 5,000/. The legacy is adeemed so far as it concerns Rs. 5,000/ (Section 155).

3. If a portion of an entire fund or stock bequeathed is received by the Testator, the fund/stock operates as an ademption only to the extent amount received and residue of the fund/stock shall be applicable to the discharge of the specific legacy (Section 156).

4. When Stock specifically bequeathed does not exist at the Testator’s death, A bequeaths his capital stock of 1001 in East India stock. A sells the stock. The legacy is adeemed (Section 158).

ADVERTISEMENTS:

5. When stock exists only in part at the Testator’s death, the legacy is adeemed partly. A bequeaths Rs. 10,000/ in 5 12% Loan of Central Government Loan. A sells half of it. Only one half of legacy is adeemed (Section 159).

6. When Testator bequeaths some valuable (rather a right to receive a thing) to be received from third person and the Testator (or his representative) receives it, and Testator mixes it up with the general mass of his property the bequest, is adeemed (Section 162).

Ademption does not take place in the following cases:

1. When goods/property bequeathed are removed for any temporary cause, by fraud or without the knowledge/sanction of the Testator (Section 160), legacy is not adeemed.

ADVERTISEMENTS:

(i) A bequeaths all house goods in his dwelling house in Calcutta at the time of his death. The goods are removed to save him from fire. Legacy is not adeemed.

(ii) The goods are removed in absence of A. A dies without having sanctioned their removal. Legacy is not adeemed.

2. If goods bequeathed are removed from its place mentioned in the will but mentioning of the place where goods are lying is just to complete the description of the place (where goods are lying) and nothing more (Section 161). For example, A bequeaths to B all his furniture then in house in Calcutta. The testator had one house at Calcutta and one at Chinsurah. Being possessed with one set of furniture, he used to remove it along with his to each house. At the death, the furniture was lying in the house of Chinsurah, legacy is not adeemed.

3. When Testator bequeaths some valuable (rather than a right to receive a thing) to be received from a third person and the Testator (or his representative on his behalf) receives it but the Testator does not mix it up with the general mass of his property, the bequest is not adeemed (Section 162).

ADVERTISEMENTS:

4. Changes taking place from the date of will to the date of death of Testator, on account of (a) operation of law in execution of any legal instrument under which the gift bequeathed was held (b) without the knowledge of Testator or (c) without his section (Sections 163 164).

5. Where stock specifically bequeathed is sold and an equal quantity of the same stock is afterwards purchased and belongs to the Testator at his death (Section 166).

6. Where stock is lent on a specific condition, that it shall be replaced and in fact it is accordingly replaced (Section 165).

SCHEDULE III

ADVERTISEMENTS:

Restrictions and modifications in application of foregoing sections

1. Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any person of any right of maintenance of which, but for the application of these sections, he could not deprive them by will.

2. Nothing therein contained shall authorise any Hindu, Muhammadan, Buddhist, Sikh or Jain, to create in property any interest which he could not have created before the first day of September, 1870.

3. Nothing therein contained shall affect any law of adoption or intestate succession.

4. In applying Section 70, the words “than by marriage or” shall be omitted.

5. In applying any of the following sections, namely, sections seventy five, seventy six, one hundred and five, and hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and thirteen, one hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to such wills and codicils the words “son”, “sons”, “child”, and “children” shall be deemed to include an adopted child; and the word “grand children” shall be deemed to include the children, whether adopted or natural born, of a child whether adopted or natural born; and the expression “daughter in law” shall be deemed to include the wife to an adopted son.