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Abatement – The Bequest No Longer Exists At Death

 

abatementAbatement occurs in estate law when the bequest in the will no longer exists at the time of death or such as in the case of monetary legacies, they are not sufficient to pay them in full.

A typical example of abatement may happen when a specific parcel of property is bequeathed in a will , but then sold  prior to death, so that the deceased no longer owns the property at  the time of death, and thus the  gift of the property has abated.

Another blog with respect to the law of Abatement can be  found on this  website blog dated September 6,2013.

Celantano Estate v Ross 2014 BCSC 27  blogged yesterday reviewed three types of legacies ,also dealt with the law of abatement as there was an issue as to whether  the bequest was demonstrative or general , as a demonstrative bequest has priority over a general bequest.

The estate does not have sufficient funds to pay all of the legacies. In such a case, the rule of abatement will apply. Abatement is:

…the pro rata reduction of the amounts of or quantities of testamentary gifts when the estate is insufficient to pay the debts and gifts in full.

(A.H. Oosterhoff in Oosterhoff on Wills and Succession, 6th ed. (Toronto Ont.: Thomson Canada Limited, 2007, p. 525.)

[13]         The common law order of abatement for testamentary gifts is:

1)    residuary personality;

2)    residuary real property;

3)    general legacies, including pecuniary legacies from residue;

4)    demonstrative legacies;

5)    specific bequests of personality;

6)    specific devices of real property.

Smith Estate (Re), para. 15; Thompson (Guardian Ad Litem of) v. Thompson Estate, 2005 BCSC 1814

[14]         Therefore, if the Shriners’ legacies are held to be specific or demonstrative, they will have priority over the general legacies. They would then be paid out in full from the US funds, before the general legacies. The balance of the funds in the estate would be divided on a pro rata basis between the remaining general legacies.

[15]         On the other hand, if the Shriners’ legacies are held to be general legacies, then they would be grouped in with all of the other general legacies and be subject to the same pro rata division.

 The court found the legacies to be demonstrative

 

 

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