## Facts

- Hester Mary Lewis Anton executed a will specifically devising one-half of her interest in a duplex to her stepdaughter, Gretchen Coy, and the other half to her son; the residue passed to her children.
- After a serious accident, the testator lived in nursing facilities for years and executed a durable power of attorney authorizing her daughter, Nancy Ezarski, to manage finances despite disability.
- To pay nursing-home expenses when income became insufficient, Ezarski (as attorney-in-fact) listed and sold the duplex without informing the testator, who had been advised by staff not to discuss finances due to her condition.
- The duplex sold for about $133,263, and approximately $104,317.38 in sale proceeds remained in the estate at the testator’s death.
- Coy claimed entitlement to the remaining proceeds attributable to her one-half specific devise; the estate argued the devise was adeemed because the duplex was not owned at death.
- The district court and court of appeals found ademption; the state supreme court granted further review.

## Issues

1. Whether a specific devise is adeemed when the specifically devised property is sold before death by an attorney-in-fact acting under a durable power of attorney for an incapacitated testator.
2. Whether, when substantial sale proceeds remain and are traceable, the specific devisee may take the corresponding remaining proceeds instead of the devised property.

## Decision

- Reversed.
- The sale by the attorney-in-fact did not adeem the specific devise of the duplex.
- The specific devisee was entitled to a proportional share of the remaining, traceable sale proceeds corresponding to the devised interest.

## Legal Principles

- Ademption generally refers to the failure of a specific devise when the specifically devised item is not part of the estate at the testator’s death.
- In determining ademption, courts consider whether the disposition reflects the testator’s voluntary, competent change of testamentary intent, as opposed to a disposition effectively involuntary from the testator’s standpoint.
- When specifically devised property is sold by a fiduciary for an incapacitated testator, and the proceeds are identifiable and unexpended at death, an exception to strict identity-based ademption permits the devisee to receive the remaining traceable proceeds.
- Policy protections for devisees when a conservator sells specifically devised property support similar treatment when an attorney-in-fact sells such property under a durable power of attorney for an incapacitated principal.

## Conclusion

A fiduciary’s pre-death sale of specifically devised property to pay necessary care expenses, undertaken for an incapacitated testator and leaving substantial traceable proceeds in the estate, does not extinguish the specific devise; the devisee takes the corresponding remaining proceeds.


In re Estate of Anton, 731 N.W.2d 19 (Iowa 2007)