- Ademption is the term used when a specific item named in a will is no longer part of the estate at death, and what follows depends on the will and the facts.
- Whether you receive anything instead depends on the will's wording and the facts, so read the exact clause before assuming either way.
- Capital property the person still owned at death is treated as disposed of at fair market value for income tax, which sets the beneficiary's tax cost.
- A vehicle that passes through the estate to a beneficiary can be transferred exempt from retail sales tax if the right documents are supplied.
A will says your aunt leaves you her car, her cottage or a particular set of shares. When the estate trustee starts work, you learn the item was sold, given away or scrapped years ago. It is natural to ask whether you are simply out of luck or whether you get its value in money.
This article explains what lawyers mean by ademption, the facts that usually matter, and the practical steps to take. It does not give a firm answer for any one case, because the answer turns on the wording of the will and what happened to the item. A lawyer can confirm how Ontario law applies to your facts.
What ademption means in plain words
A specific gift is a gift of a particular, identifiable thing, such as one named vehicle, one property at a stated address, or a particular account. It is different from a gift of a sum of money or a share of everything left over.
Ademption is the label for what can happen to a specific gift when that thing is no longer owned by the person at death. Whether that affects your gift depends on the will and the facts. That is the starting concern, not the end of the analysis.
Many disappointed beneficiaries assume a failed gift means the estate owes them cash. Others assume it never matters. Neither assumption is safe. The result depends on how the will describes the gift, what became of the item, and why.
Questions that usually decide the outcome
Lawyers tend to start with a handful of factual questions. Your answers help a lawyer tell you whether a claim is worth pursuing.
- How exactly does the will describe the gift? A named car is different from a gift of whatever vehicle the person owns at death.
- What happened to the item: sold, gifted, destroyed, traded in, or transferred into someone else's name?
- Who made the decision? The person themselves, or someone acting under a power of attorney because the person lacked capacity?
- When did it happen relative to the date of the will?
- Is there a replacement item, insurance money or sale money still sitting in an account?
- Does the will say what happens if a gift cannot be given, or name a back-up beneficiary?
Who made the decision to sell or give away the item is worth establishing early. How a sale by an attorney affects the gift depends on the facts, so it is worth confirming with a lawyer rather than guessing.
Specific gift versus other kinds of gifts
| Type of gift | Example | Effect if the item is gone |
|---|---|---|
| Specific | My sedan to my nephew | May fail; outcome depends on the will and facts |
| General | A set sum of money to my niece | Depends on the will and the facts; worth confirming with a lawyer |
| Residuary | The rest of my estate to my children | Depends on the will and the facts; worth confirming with a lawyer |
How a missing item affects other beneficiaries depends on the will and the facts, so it is worth confirming with a lawyer. Disputes sometimes arise between a disappointed beneficiary and the other beneficiaries.
What does still pass, and how it is handled
If the item was still owned at death, the paperwork depends on the asset. For income tax, the deceased is treated as having disposed of each capital property at fair market value just before death, and the person who acquires it because of the death is treated as acquiring it at that same value. That value becomes the beneficiary's tax cost, including for inherited shares.
For a vehicle passing through an estate, a transfer to a beneficiary can be exempt from retail sales tax. With a will, the beneficiary supplies the original or certified will naming the estate trustee, and a letter from the estate trustee with the VIN, year, make and model if the beneficiary is not clearly identified.
For land, the paperwork depends on how title was held and whether a certificate of appointment was issued. Land registration practice can change, so a lawyer should confirm the current steps for your property.
What to do next
- Get a copy of the will and find the exact clause describing the gift.
- Ask the estate trustee in writing what happened to the item, and for any sale records, bills of sale or bank records.
- Look for proceeds: a deposit that matches the sale, insurance money or a replacement item.
- Find out whether a power of attorney was in use when the item was dealt with, and request the attorney's records.
- Note any dates for objecting or responding on documents you receive, and do not sign a release until you understand it.
- Speak to an Ontario estates lawyer before agreeing to a settlement.
Estate trustees can help you by being open about what they have found. If you are the trustee, keep records of how each specific gift was dealt with, and avoid distributing disputed value until the position is clear.
Frequently asked questions
If the car named in the will was sold, do I get the sale money?
Not automatically. It depends on the wording of the will, what happened to the car, and who made the sale. A lawyer can read the will and tell you whether a claim to proceeds is realistic.
Does it matter that someone sold the item under a power of attorney?
It can matter, but how it matters depends on the facts and the wording of the will. It is worth confirming with a lawyer.
Is tax owing on an inherited item I do receive?
For capital property owned at death, the deceased is treated as having disposed of it at fair market value just before death, and you are treated as acquiring it at that value. Property passing to a spouse or qualifying spousal trust can be rolled over at the deceased's adjusted cost base if it vests within 36 months after death.
Can I transfer an inherited vehicle without paying retail sales tax?
A vehicle passed through an estate may be transferred to an estate beneficiary exempt from retail sales tax, if you supply the required documents. Other situations, such as buying from the estate, are different and worth confirming.
Sources
- Income Tax Act s.70 (Justice Laws) — Justice Laws (federal)
- Ontario – Retail Sales Tax: Specified Vehicles — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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