A specific bequest is a gift of a particular thing which is specified and distinguished from all of the testator’s other property. An example of a specific bequest is a particular watch or a work of art.
A general bequest is a set monetary gift that is payable out of the general assets of a testator’s estate. An example of a general bequest is a gift of a specified amount of money.
A demonstrative bequest is a monetary gift with a direction that it be paid out of a particular fund. An example of a demonstrative bequest is a gift of whatever funds are held in a particular bank account at the time of the testator’s death.
A disposition of real property in a Will is known as a “devise”.
The type of bequest that is made becomes important in the event that a specific asset cannot be located or if there are insufficient funds in the estate to satisfy all of the bequests. If a specific bequest cannot be located, perhaps because it was destroyed or disposed of during the testator’s lifetime, the doctrine of “ademption” applies. Generally, the result of ademption is that the gift fails and no gift is made to the beneficiary in its place. There is an exception to this principle that relates to guardians for property and is provided by the Substitute Decisions Act, 1992, S.O. 1996, c. 30. Where a guardian for property disposes of property that is, at the time of such disposal, subject to a specific testamentary bequest then the beneficiary will be entitled to receive an amount equal to the proceeds of the disposition. There is an exception to this exception, however, and that is where a provision is included in the Will that states that a contrary intention is to be applied.
The doctrine of “abatement” occurs when a reduction of the bequests set out in a Will is required because there are insufficient assets in the residue of the deceased’s estate to satisfy all of the gifts once the debts and liabilities of the estate have been paid. In an abatement scenario, the types of bequests at issue determine the order of abatement. In general terms, general bequests reduce first and they do so rateably. The next to abate are demonstrative bequests followed by specific bequests, again with each reducing rateably. The term “rateably” simply means that the reduction is allocated among all beneficiaries in the same class in proportion to their interests. Specific bequests are reduced before a reduction is applied to a devise of real property.
A last concept that should be touched upon in a discussion of bequests is the doctrine of “lapse”. It is very important that a testator considers the possibility that a beneficiary will predecease the testator. In general terms, if a beneficiary does predecease a testator then the gift is said to lapse, or to fail. If the gift is a bequest then such gift will fall into the residue of the estate and be dealt with accordingly. If, however, such predeceased beneficiary was entitled to a share of the residue then the result will be an an intestacy with respect to that portion of the estate.
The doctrine of lapse does not apply in all situations. There is an anti-lapse provision in the Succession Law Reform Act, R.S.O. 1990, c.26, that states that if the predeceased beneficiary is a child, grandchild, brother, or sister of the testator, and the predeceased beneficiary leaves a spouse or issue who survives the testator, then the gift does not lapse. Instead, the gift is to be distributed as if it had been the property of the deceased beneficiary and the deceased beneficiary had died intestate (except that the preferential share of a surviving spouse is excluded). In other words, the gift would be divided with one equal share going to a surviving spouse and one equal share going to each surviving child. If a testator does not want the potential for gifts to lapse, or the anti-lapse provision to apply, then he or she can express a contrary intention in the Will by either making gifts conditional on the beneficiary surviving the testator or stipulating a gift over to another beneficiary in the event that the original beneficiary predeceases the testator.
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