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Specific gift

1. Robertson v Broadbent

Two essentials elements of a specific gift are that the gift;

a) Must be part of the testator’s property (it takes effect only if that gift forms part of the testator’s estate when he dies); and

b) Must be severed or distinguish from the totality of the testator’s estate (thus showing an intention of the testator that the property shall pass to the legatee in specie).

2. Re Slater

A specific gift will be adeemed (fail) if by the time of the testator’s death, the subject matter of the gift given no longer forms part of his estate has been destroyed or converted into something else by the act of the testator or by duly constituted authority.

3. Durrant v Friend

A gift of chattel is adeemed if they are lost at sea with the testator.

General gift

1. Bothamley v Sherson Jessel

General gift is a gift not of any particular thing but of something which is to be provided out of the testator’s general estate. The executor’s obligation is to provide the property given for the legatee and he must raise if necessary by a sale of the testator’s asset.

2. It is irrelevant whether it formed part of the testator assets at his death. A general gift can never be effected by ademption.

Specific gift v General gift

1. The use of words indicating possession such as my normally indicates a specific rather than a general gift. E.g:

A gift of ‘my 1,000 shares in Bursa Saham’ is specific but a gift of ‘1,000 shares in Bursa Saham’ is general.

In the later example, there is no indication from the words used that the testator is referring to shares own by him (he may be intending that they should be bought for the beneficiary).

2. Even if the testator possesses the property in question when he makes the will, the absence of ‘my’ may be crucial.

Re Gage [1934] Ch 536

A gift of ‘the sum of £1,150 Five per Cent War loan stock’ was held to be a general gift even though the testator held that stock when the will was made.

Re O’Connor [1948] Ch 628

The testator bequeathed ‘ten thousand preference shares of one pound each fully paid’ in a hat making business in which he had only 9,000 shares when he made the will and at his death. The gift was held to be general since the testator did not used the word ‘my’ or any possessive word and because he never had 10,000 preference shares either at the date of his will or at the date of his death.

3. Litigation involving the classification of gifts is often concerned with beneficiaries trying to establish that a gift is general. For example, suppose that the testator makes a will bequeathing property which he later sells. If the gift is specific, it will be adeemed by the sale and the legatee will get nothing; but if the gift is general, the beneficiary is entitled to its being paid out of the testator’ general estate. Due to the liability of specific gifts to fail through ademption, the court leans in favour of a general gift in cases of doubt.

4. The testator intention is also important. If he intends a gift to be treated as belongings to a particular category, the court will take that intention into account.

Re Compton [1914] 2 Ch 119

The testator makes a specific gift of stocks, bonds and shares describing it ‘as a general and not as a specific legacy’. The testator intended that these specific gifts should be treated, in respect of their legal consequences, as if they had been general gifts and not specific legacies’. Accordingly the gifts were regarded as general.

5. General gift abate before specific gift; hence in this respect it is advantageous to be specific gift. A demonstrative gift is treated as a specific gift to the extent that it can be paid out of the specified fund; thus it will abate after a general gift.