28. Conveyance by Will (ALS)

Question 1

What is conveyance by will?

Answer 1

Owner prepares + executes will during his lifetime

- Can NOT modify/revoke during T’s lifetime

Question 2

When does ademption occur?

Answer 2

‘Specific’ bequest of property

• Testator NO longer owns property at time of T’s death => Adeemed
• Money NOT satisfactory as replacement

‘Part’ of property sold/given away

• Sold/Given part => Adeemed
• Remainder => Devisee

Question 3

When does ademption not occur?

Answer 3

Land sale contracts after will + before T’s death

• T’s land sale proceeds becomes personal property => Devisee (UPC + many states) (majority view)
• T’s land is adeemed => Devisee is entitled to nothing (Equitable Conversion doctrine) (minority view)

Land sale contracts entered by incompetent Testator’s representative
- T’s land sale proceeds become personal property => Devisee

Land condemned by government/land is destroyed or damaged before T’s death + condemnation award/casualty insurance proceeds are given after T’s death
- Award/Proceeds => Devisee

Question 4

When may an existing encumbrance on Testator’s land be exonerated (removed/satisfied) after his death?

Answer 4

Common law + Some states
- Use Testator’s residuary estate to pay off encumbrances

Most states

• Will must ‘expressly’ provide for payoff of encumbrance
• Otherwise Devisee takes land subject to encumbrance (abolished exoneration doctrine)

Question 5

What happens to lapsed gifts (Beneficiary predeceases Testator)?

Answer 5

Anti-Lapse Statute

• Gift passes to predeceased Ben’s ‘living’ descendants (related to Testator) (some states)
• Gift passes to predeceased Ben’s living descendants (related to Testator’s grandparents) (some states)
• Gift passes to remaining class members OR predeceased class member’s issues (related to Testator) (some states)

Common law/Will provision contrary to Anti-Lapse Statute
- Gift is VOID