Changes in Property

Question 0

Ademption Exceptions (3)

Answer 0

Conservator exception
T becomes incompetent after execution of a will
Property sold by a conservator is not adeemed

property of a specific devise is destroyed before death but proceeds paid after death, specific devisee gets proceeds

T enters agreement to convey property subject to specific devise, agreement does not adeem gift. Devisee takes property subject to rights and obligations created by agreement

Question 1

Ademption

Answer 1

specific devise is not part of testators estate
gift extinguished by ademption.
Beneficiary takes nothing.

Does not apply to general or demonstrative gifts.

may be complete or partial - T sells half of blackacre before death.

Question 2

Argument to Avoid Ademption

Answer 2

Specific devise was in fact a general devise.

Will should be read at testators death and may allow subsequently acquired property as substitute for previously owned asset.

Specific devise was not adeemed because it merely changed form, not substance. 2 strand pearl necklace restrung as single strand.

Question 3

Ademption by Satisfaction

Answer 3

lifetime gift

intended to satisfy a specific devise in will.

Question 4

Abatement defined

Answer 4

estate insufficient to cover all gifts

after debts and expenses

Question 5

Statutory Formula for Abating

In order of first to go (6)

Answer 5

Intestate property
residuary legatee
general legatee
demonstrative
specific
surviving spouse elective share

Question 6

How to abate legatees in a class

Answer 6

shares abate pro rata

Question 7

Exoneration

Answer 7

specific devise
subject to mortgage, deed of trust, or other lien
existing at death

devisee takes subject to mortgage
unless T specifically provides otherwise.

Question 8

Distinguish between person who does not survive T and person who is dead at the time of the execution of the wil

Answer 8

person who fails to survive T, the gift lapses and falls to the residuary

person was dead when the will was written, the gift is void

Question 9

Common law rule of lapse

Answer 9

lapses for any reason
gift falls to residue
regardless of type

if no residue, passes via intestacy

Question 10

Death of a residuary legatee before T (or before T executes will)

Answer 10

remaining residuary devisee takes lapsed share

subject to anti lapse statute

no remaining residuary devisee’s and
gift not saved by anti lapse statute,
passes via intestacy

Question 11

Testators Provision of Contingency plans

Answer 11

T may provide for treatment of lapsed, void, or otherwise failed gifts through alternative bequests

Question 12

Gifts to a Class

Answer 12

Traditional rule of lapse does not apply to class gifts

shared by remaining class members 
subject to anti-lapse statute.

Question 13

Factors determining Testators intent to create class gift

Answer 13

1. Was T group minded?

2. number of devisee’s subject to variance?

Question 14

How is group mindedness demonstrated by T

Answer 14

class members are not named individuals
share common characteristic

indicative of group mindedness

where T contemplated the number of persons to take would vary, a class gift will be found

Question 15

absent contrary provision
A class gift to Issue, Children, Descendants, Heirs, and the like
Includes

Answer 15

Adopted Children
Children conceived before but born after death
non-marital children

Question 16

Gift to heirs

Answer 16

decedents distributees under intestate statute

Question 17

A devise of a present interest to a class includes

Answer 17

all persons answering class description at T’s death

Question 18

Instruments executed after 9/1/92

A gift to issue is distributed

Answer 18

per capita if takers are of equal degree

but per capita at each generation if unequal degree

Question 19

Anti Lapse Statute - in general

Answer 19

NY adopted statute designed to alter outcome with
lapsed and voided devises.

only if no contrary intention implied

Question 20

Operation of Anti Lapse Statute

Answer 20

allows substitute taker for predeceased beneficiary if

1. beneficiary is issue, brother or sister of T
2. beneficiary leaves issue

if the answer is yes, the gift belongs to the issue.
Applies only to Issue and Siblings of T, NOT TO THEIR SPOUSE

Question 21

Anti-Lapse Application to Class Gift

Answer 21

Same applicable parties, issue and siblings of T

So long as members were Alive at time of execution (not void)

Question 22

Multiple heirs of Issue or Siblings will take under anti lapse statute

Answer 22

by representation