Writing a last Will and testament is considered by many to be an easy job and whilst the process,may seem relatively easy, you may be surprised to find that it’s not as simple as it looks.
While the requisites of making a Will may be simple, the choices that you have to make for this to happen can be a tad bit intricate. For instance, if you wish to leave a gift through your Will, you will have to decide the type of gift you want to give to your beneficiaries. This article will help you understand all you need to know about such gifts.
Types of Gift
Generally, you will be able to leave behind three different types of gifts and these are specific, pecuniary and residuary. These are described in details below:
When you allocate a definite and a specified item or a group of items in your Will that is to be left for someone, it is known as a specific gift. For instance, you can leave an antique piece or your entire collection of antiques to either a relative or a friend. The point to be remembered is that the item or items may or may not be owned by the individual making the Will at the time it is being written.
The gift of a specific item will fail and become invalid in case the testator who owns the said item disposes it when they’re alive. The main reason behind this is being only the particular item was mentioned as a gift in their Will. The term for this is known as ‘ademption’ and the particular gift is referred to as being ‘adeemed’. For instance, the gift in the clause ‘Gift my antique store to my friend Adam’ in the Will of a testator who sold the said shop a few months before their death for £30,000 is regarded as being ‘adeemed’. Unfortunately for Adam, he cannot claim the £30,000.
The gift may not be regarded as being adeemed in case the testator did not own it at the time the Will was being made. Unless the testator made a mere mistake trying to bequeath something that he/she did not own, the item or asset that is the subject matter of the gift has to be provided for, out of the testator’s general estate and property. For instance, if the testator makes a provision for 5,000 shares to be gifted from a quoted company knowing that they did not own any of it, the executors of the estate will be compelled to use the money from the estate to buy such shares or sell other assets from the possessions of the testator to raise the required amount for the said purpose.
The responsibility of proving that the testator had knowledge of the fact that they did not own the asset at the time of making their Will is on the legatee who is the recipient of the planned gift. Because any automatic presumption lacks in case this happens, this is a rather unusual complexity in itself.
However, the gift even though it is not adeemed can fail and considered invalid. For instance taking the above example, the quoted company has been dissolved and shut down by the time of the testator’s death.
Any monetary gift by the testator of the Will for a beneficiary is regarded as a pecuniary gift. It is also known as general gifts and at times can also relate to specific items. Pecuniary gifts are payable out of what is left of the estate and possessions of the estate, and in case it refers to a subject matter, the testator may or may not own it at the time of writing the Will.
As the name suggests, residuary gift is a gift what is left after paying off debts and expenses and distribution of gifts of specific or pecuniary nature as discussed above. If no other provision for gifts is made, all that is left of the estate after paying off debts and other expenses becomes a residuary gift. Generally, as per the provisions all debts, expenses and other gifts are to be sorted and paid for out of the residue before it can be distributed.
It is recommended that you seek legal advice before you make a Will. You can use a free Will kit template to write your final Will and testament.