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20th May 2021

Testator’s mental incapacity does not overrule the ademption of a specific gift

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Elizabeth Rokkan lived in Norway during her married life but returned to Wales in 1987. She made her last Will in December 2012, under the law of England and Wales. In the Will, she left a specific gift to her son of the balance of her bank accounts in Norway. 

However, two years after making her Will, she transferred the balance of the monies contained within her Norwegian bank accounts to a bank in England. At the time of arranging these transfers, Mrs Rokkan lacked mental capacity. 

Ademption occurs where the subject matter of a specific gift no longer forms part of the testator’s estate on their death and therefore the gift fails (adeems). As Mrs Rokkan’s Norwegian bank accounts did not form part of her estate at the time of her death, her gift to her son ordinarily fails. 

Mrs Rokkan’s son therefore brought a claim to the High Court in which he argued that the gift to him should take effect as at the time his mother transferred the balance of her Norwegian accounts to Lloyds, she lacked mental capacity. The High Court however held that on reviewing the legal authorities, a testator’s mental incapacity does not overrule the ademption of a specific gift. The gift therefore failed.

For more information on this article, including advice on how to ensure that your assets pass to the correct people, please contact Elizabeth Herbert by clicking here or Alexandra Svennevik by clicking here.