Changes in Property Flashcards
Ademption Exceptions (3)
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
Ademption
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.
Argument to Avoid Ademption
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.
Ademption by Satisfaction
lifetime gift
intended to satisfy a specific devise in will.
Abatement defined
estate insufficient to cover all gifts
after debts and expenses
Statutory Formula for Abating
In order of first to go (6)
Intestate property residuary legatee general legatee demonstrative specific surviving spouse elective share
How to abate legatees in a class
shares abate pro rata
Exoneration
specific devise
subject to mortgage, deed of trust, or other lien
existing at death
devisee takes subject to mortgage
unless T specifically provides otherwise.
Distinguish between person who does not survive T and person who is dead at the time of the execution of the wil
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
Common law rule of lapse
lapses for any reason
gift falls to residue
regardless of type
if no residue, passes via intestacy
Death of a residuary legatee before T (or before T executes will)
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
Testators Provision of Contingency plans
T may provide for treatment of lapsed, void, or otherwise failed gifts through alternative bequests
Gifts to a Class
Traditional rule of lapse does not apply to class gifts
shared by remaining class members subject to anti-lapse statute.
Factors determining Testators intent to create class gift
- Was T group minded?
2. number of devisee’s subject to variance?
How is group mindedness demonstrated by T
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
absent contrary provision
A class gift to Issue, Children, Descendants, Heirs, and the like
Includes
Adopted Children
Children conceived before but born after death
non-marital children
Gift to heirs
decedents distributees under intestate statute
A devise of a present interest to a class includes
all persons answering class description at T’s death
Instruments executed after 9/1/92
A gift to issue is distributed
per capita if takers are of equal degree
but per capita at each generation if unequal degree
Anti Lapse Statute - in general
NY adopted statute designed to alter outcome with
lapsed and voided devises.
only if no contrary intention implied
Operation of Anti Lapse Statute
allows substitute taker for predeceased beneficiary if
- beneficiary is issue, brother or sister of T
- 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
Anti-Lapse Application to Class Gift
Same applicable parties, issue and siblings of T
So long as members were Alive at time of execution (not void)
Multiple heirs of Issue or Siblings will take under anti lapse statute
by representation
