Canada: What Happens If A Gift Made In A Will Can't Take Effect?

Last Updated: November 11 2015
Article by Lauren Liang

In drafting a will, it is important to consider how future events may impact an estate plan. The concepts of lapse and ademption are two examples that demonstrate why this may be necessary.

When a gift lapses or adeems, the gift will no longer be passed to the named beneficiary because the gift has either failed or it no longer exists. This is usually due to some change in circumstances between the time the will was made and the time of death. In some cases, the result may be that gifts are distributed in a way that the will-maker did not contemplate and may not have wanted. However, with proper planning, it is usually possible to avoid lapsed or adeemed gifts and ensure that a will-maker's intentions can be followed.


A lapsed gift is a gift that cannot take effect, typically, but not exclusively, because the beneficiary has predeceased the will-maker. Section 46 of the Wills, Estates and Succession Act ("WESA")contains an "anti-lapse rule" which establishes a default scheme for determining alternative beneficiaries in the case of a lapsed gift.

Section 46 applies to all types of gifts, whether specific or residual. Under this section, if the will-maker has named an alternative beneficiary for a gift that has failed, the alternative beneficiary has the first priority to take the gift, whether the gift failed for a reason identified in the will or for any other reason. For example, assume a will-maker gifts his Nissan XL 2007 to friend A, and names friend B as an alternative beneficiary for the vehicle if friend A does not survive him. On the will-maker's death, friend A is alive, but friend A was a witness to the will-maker's signature on the will. Under WESA, a gift to a witness of the will is void. As a result, the gift of the vehicle to friend A fails. In the circumstances, friend B has the first priority to take the vehicle even though the gift failed for a reason not identified in the will.

If there was no alternative beneficiary of the gift named in the will, and the named beneficiary was either the brother, sister or a descendent of the will-maker, then the named beneficiary's descendants will be entitled to the failed gift. If the named beneficiary of the failed gift was not the brother, sister or a descendent of the will-maker, then the surviving residuary beneficiaries, if any, named in the will would be entitled to the failed gift in proportion to their interests.

This default scheme is subject to a contrary intention identified by the will-maker in the will.


Will-makers often make specific bequests of property, such as a car, piece of jewelry or money held in a specific bank account. These types of gifts can be problematic where the will was prepared years or even decades before the will-maker passed away and the assets of the will-maker have significantly changed. As a result, it is not uncommon for situations to arise where property gifted in a will is no longer owned by the will-maker at the time of their death. For instance, the property might have been sold, given away, destroyed, lost or simply consumed. In cases such as these, it is said that the gift has adeemed.

The general rule is that if the gift has adeemed, then the beneficiary of the gift is out of luck. However, it is not always easy to determine whether a gift has adeemed, as it may depend on the nature of the gift, description of the gift in the will, whether the property still partially exists in some form, and other factors. The issue of ademption often arises where a will-maker makes a gift of money or other financial assets held with a specified bank, and at the time of the will-maker's death, the gift no longer conforms to the exact description in the will because the assets have been moved or altered.

The issue of ademption was considered by the BC Court of Appeal in Wood Estate v. Arlotti-Wood, 2004 BCCA 556 ("Wood"). In this case, the will-maker directed his executor in his will "to pay any cash or transfer any stocks and bonds held in account no. 861-16199-1-0 located at RBC Dominion Securities, Vancouver, BC" to a group of beneficiaries. The will-maker subsequently moved the funds to another account with another bank where the funds were being held at the time of his death.

The BC Court of Appeal in Wood provided some general guidance on ademption. Firstly, the Court confirmed that in determining whether a gift has adeemed, it is irrelevant whether the will-maker intended for the gift to be adeemed. Secondly, the Court explained that ademption would not apply to a gift that had changed in name or form alone if the item remained substantially the same thing. In Wood, the Court found that the gift was comingled with other monies and "tracing" of the funds was no longer possible. Accordingly, since the gift had changed beyond just mere form or name, it was found that the gift had adeemed.

Ademption is a common law concept and is not outlined in a specific section of WESA. However, section 48 of WESA provides relief to a beneficiary where the subject of a specific bequest is disposed of by a "nominee" of the will-maker. The term "nominee" is defined to include a committee, an attorney under a power of attorney, or a representative under a representation agreement. Section 48 provides that a disposal of property by a nominee entitles the beneficiary to appropriate compensation which can include non-monetary consideration and fair market value of the gift. The relief provided in section 48 is not available if the disposition is made to carry out the will-maker's instructions when the will-maker was legally capable of giving instructions or if a contrary intention appears in the will.

Understanding the concepts of lapse and ademption can assist a will-maker in planning around unexpected changes to the beneficiaries of the will-maker's estate, or to the will-maker's assets. The will-maker may decide that the statutory scheme is acceptable or may wish to put appropriate alternatives or contingencies in their will. Ultimately, knowledge of these concepts helps ensure that the will-maker's estate will be distributed in accordance with his or her intentions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions