Wills: ademption

Question 1

Ademption by extinction: common law

Answer 1

If the subject matter of a specific gift is:

(1) missing,
(2) destroyed, or
(3) there is a substantial change in the form of the gift—i.e., as opposed to a minor change, where the court can trace the gift,

the beneficiary takes nothing.

This does not apply to general or demonstrative gifts, which can be satisfied from the general assets of the estate.

Question 2

Ademption by extinction: Uniform Probate Code

Answer 2

The testator’s intent at the time he disposed of the subject matter of the devise or bequest is examined:

(1) If there is evidence that the testator intended for the beneficiary to receive the gift, despite ademption, the UPC permits a beneficiary of a specific extinct gift to inherit:
(a) the property acquired by the testator as replacement property;
(b) or, if the testator is owed money relating to the extinction, the outstanding balance.
(2) If neither the replacement property nor the outstanding balance doctrine applies, then the UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition of the gift if ademption is inconsistent with the testator’s intent or plan of distribution.

Question 3

Ademption by satisfaction

Answer 3

Ademption by satisfaction applies when a testator satisfies a specific or demonstrative gift—whether in part or in whole—by an inter vivos transfer.

For ademption by satisfaction to apply, the testator must:

(1) Intend for the gift to adeem; and
(2) Express intent to adeem in a writing.