As Professor Osterhoff explains in his text; “Oosterhoff on Wills”, ademption is a common law doctrine wherein a testator provides a gift within a will that is no longer in existence within the testator’s estate upon his death.[1] Ademption is defined in the following quote:
“As we saw, ademption occurs when the property which is the subject matter of a specific gift, although in existence at the date of the will, is not in the testator’s estate at his death. It may have been sold or given away by the testator, or it may have been lost, stolen, or destroyed. In the absence of statutory provisions to the contrary, if a specific gift has adeemed, the beneficiary receives nothing”.[2]
In McKenzie v. Morgan, 2023 ONSC 1457, the Superior Court of Justice relied in the findings of McDougald Estate v. Gooderham[3] where ademption is described as the following:
[75] Where a Will contains a bequest that is not among the testator’s assets when he dies, the gift is said to have adeemed and it fails.[4]
Ademption often occurs either by a testator’s voluntary act, or by an act that is out of the testator’s control. In the later case, ademption occurs when the testator’s property has been stolen or destroyed, whereas the first scenario often occurs when a testator sells or gifts the property.[5]
Ademption does not apply to the incapable’s property that is subject to a testamentary disposition, which is erroneously given away by a guardian or an attorney for property as per Section 36(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”).[6] In the event that a guardian or attorney disposes of property subject to a testamentary gift, they are entitled to the value of the gift from the estate residue.[7]
A gift does not adeem if “generic in nature”, which can constitute a type of gift or devise in a will that is not specific to a particular item but instead describes a category or class of items that can fluctuate.[8]
Despite the above, ademption can be avoided by receiving any property that may replace that specific gift. This clause can be incorporated in a testator’s will and will help avoid the risk of ademption.
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[1] Oosterhoff, A. H., Freedman, C. D., McInnes, M., & Parachin, A. (2016). Oosterhoff on Wills (Eighth edition.) [“Oosterhoff On Wills”] at page 538
[2] Ibid at page 538
[3] McDougald Estate v. Gooderham, 2005 CanLII 21091
[4] McKenzie v. Morgan, 2023 ONSC 1457 at para 75
[5] Oosterhoff On Wills at page 540
[6] S. 35.1 of the Substitute Decisions Act
[7] Oosterhoff On Wills at page 541
[8] Anger & Honsberger Law of Real Property, 3rd Ed. § 26:25
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Written by: Gabriella Banhara
Posted on: July 15, 2025
Categories: Commentary
As Professor Osterhoff explains in his text; “Oosterhoff on Wills”, ademption is a common law doctrine wherein a testator provides a gift within a will that is no longer in existence within the testator’s estate upon his death.[1] Ademption is defined in the following quote:
“As we saw, ademption occurs when the property which is the subject matter of a specific gift, although in existence at the date of the will, is not in the testator’s estate at his death. It may have been sold or given away by the testator, or it may have been lost, stolen, or destroyed. In the absence of statutory provisions to the contrary, if a specific gift has adeemed, the beneficiary receives nothing”.[2]
In McKenzie v. Morgan, 2023 ONSC 1457, the Superior Court of Justice relied in the findings of McDougald Estate v. Gooderham[3] where ademption is described as the following:
[75] Where a Will contains a bequest that is not among the testator’s assets when he dies, the gift is said to have adeemed and it fails.[4]
Ademption often occurs either by a testator’s voluntary act, or by an act that is out of the testator’s control. In the later case, ademption occurs when the testator’s property has been stolen or destroyed, whereas the first scenario often occurs when a testator sells or gifts the property.[5]
Ademption does not apply to the incapable’s property that is subject to a testamentary disposition, which is erroneously given away by a guardian or an attorney for property as per Section 36(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”).[6] In the event that a guardian or attorney disposes of property subject to a testamentary gift, they are entitled to the value of the gift from the estate residue.[7]
A gift does not adeem if “generic in nature”, which can constitute a type of gift or devise in a will that is not specific to a particular item but instead describes a category or class of items that can fluctuate.[8]
Despite the above, ademption can be avoided by receiving any property that may replace that specific gift. This clause can be incorporated in a testator’s will and will help avoid the risk of ademption.
—
[1] Oosterhoff, A. H., Freedman, C. D., McInnes, M., & Parachin, A. (2016). Oosterhoff on Wills (Eighth edition.) [“Oosterhoff On Wills”] at page 538
[2] Ibid at page 538
[3] McDougald Estate v. Gooderham, 2005 CanLII 21091
[4] McKenzie v. Morgan, 2023 ONSC 1457 at para 75
[5] Oosterhoff On Wills at page 540
[6] S. 35.1 of the Substitute Decisions Act
[7] Oosterhoff On Wills at page 541
[8] Anger & Honsberger Law of Real Property, 3rd Ed. § 26:25
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