What is Abatement? | WEL Partners Blog

In “Oosterhoff On Wills”,[1] abatement is described as a legal doctrine that applies when an estate lacks sufficient assets to cover both the debts and the entirety of the gifts specified in the testator’s Last Will and Testament.[2] Professor Oosterhoff elaborates on this concept as follows:

“Abatement is the Pro Rata reduction of the amounts or quantities of testamentary gifts when the estate is insufficient to pay the debts and gifts in full. Absent a contrary direction in the will, the order in which the assets are liable to pay the debts is determined by well defined rules.

The common law order of abatement for testamentary gifts is:

(1) residuary personalty;

(2) residuary real property

(3) general legacies, including pecuniary legacies from residue;

(4) demonstrative legacies;

(5) specific bequests of personalty; and

(6) specific devises of real property.

Thus, the primary fund liable for debts is the residue. By statute in some jurisdictions, residuary real and personal property are liable rateably for the payment of debts.”[3]

It is important to note that “debt” includes estate administration expenses and the deceased’s funeral arrangements.[4]

Moreover, Professor Oosterhoff, citing, Boy’s Home of Hamilton v. Lewis (1883), 4 O.R. 18 (H.C.), asserted that a legacy directed to executors for their compensation has priority over other legacies and therefore does not abate with them.[5] This is despite the fact that a legacy to an executor is still considered a general legacy.

In Hale v. Stewart,[6] 2025 ONSC 2275 the Court, quoting Professor Oosterhoff’s text above, also asserted that when an estate is insufficient to pay all debts and gifts, the gifts may need to abate. The court confirmed that abatement involves a pro rata reduction of testamentary gifts and the common law order of abatement for testamentary gifts as listed above.[7] In Leith v. Eccles, 2024 ONSC 4769, the Court quoted Professor Black and provided that the general principle of abatement “is that the gifts within each category abate rateably”.[8]

—

[1] Oosterhoff, A. H., Freedman, C. D., McInnes, M., & Parachin, A. (2016). Oosterhoff on Wills (Eighth edition.) [“Oosterhoff on Wills”]

[2] Ibid at page 538

[3] Ibid at page 529

[4] Ibid at page 529

[5] Ibid at page 533

[6] Hale v. Stewart, 2025 ONSC 2275 (CanLII)

[7] Ibid at para 61.

[8] Leith v. Eccles, 2024 ONSC 4769 (CanLII) at para 33.

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Gabriella Banhara

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