IHTM12094 - The incidence of debts and legacies: payment of legacies

There is some conflict in judicial approach as to whether the post 1925 rules as to the incidence of debts apply also to legacies.

Before the passage of the Administration of Estates Act 1925 pecuniary legacies were payable only out of residuary personalty, in the absence of a contrary intention expressed in the will. If that was not sufficient, the legacies abated proportionately. If there was a gift of residuary realty and personalty together, the personalty would be fully used up before recourse was had to the realty. Only if the testator specifically directed that legacies were to be paid from a mixed fund of realty and personalty would the two be taken proportionately.

The post 1925 position appears to be that legacies are still payable primarily out of personalty unless realty and personalty are given together. General legacies will not abate if there is sufficient residuary estate of either realty or personalty to cover them.