Titles - Ademption

Learning Outcomes

After reading this article, you will be able to explain the doctrine of ademption and its application to specific and general devises in wills. You will understand the difference between ademption by extinction and by satisfaction, recognize key exceptions, and apply these principles to MBE-style questions involving changes in property ownership before death.

MBE Syllabus

For MBE, you are required to understand how ademption affects the transfer of property under wills and the consequences for beneficiaries. This article covers:

  • The definition and operation of ademption in the context of wills and titles.
  • The distinction between specific and general (or demonstrative) devises.
  • The effect of ademption on beneficiaries when property is no longer in the estate.
  • Exceptions to ademption, including insurance proceeds and sales by agents.
  • The concept of ademption by satisfaction.
  • Practical application to MBE-style scenarios.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. A testator leaves "my car to my niece." Before death, the testator sells the car and does not own one at death. What is the likely result?
    1. The niece receives the sale proceeds.
    2. The niece receives a different car.
    3. The gift fails by ademption.
    4. The niece receives nothing unless the will says otherwise.
  2. Which of the following is most likely to be subject to ademption?
    1. A general legacy of 10,000.b)Adeviseof"myhouseat123MainStreet."c)Ademonstrativelegacyof10,000.
    2. A residuary gift.
  3. If a testator's agent sells specifically devised property while the testator is incapacitated, what is the usual effect under modern law?
    1. The devisee takes nothing.
    2. The devisee may claim the sale proceeds.
    3. The devisee receives a substitute asset.
    4. The devisee must sue the agent.

Introduction

Ademption is a doctrine that determines what happens when property specifically mentioned in a will is not part of the testator's estate at death. This issue is central to the law of titles and succession, as it affects whether a beneficiary receives the intended gift. Understanding ademption is essential for the MBE, especially in questions involving changes to a testator’s assets between the execution of the will and death.

Key Term: Ademption The failure of a testamentary gift because the specifically described property is not in the testator's estate at death.

Types of Testamentary Gifts

Wills can make several types of gifts, but ademption primarily concerns specific devises.

Key Term: Specific Devise
A gift in a will of a particular, identified item of property (e.g., "my gold watch to my son").

Key Term: General Legacy
A gift of money or property not limited to any particular asset (e.g., "$10,000 to my daughter").

Key Term: Demonstrative Legacy
A gift of a certain amount of money or property to be paid from a specific source (e.g., "$5,000 from my Apple stock to my nephew").

The Doctrine of Ademption

Ademption occurs when specifically devised property is not part of the estate at the testator’s death. The most common form is ademption by extinction.

Key Term: Ademption by Extinction The failure of a specific gift because the property is no longer owned by the testator at death.

How Ademption by Extinction Works

If a will leaves "my car to my niece," but the testator sells the car before death and does not own one at death, the gift is adeemed. The niece receives nothing unless an exception applies.

  • Ademption applies only to specific devises.
  • General and demonstrative legacies are not adeemed—the beneficiary receives the value from other estate assets.

Exceptions to Ademption

Modern statutes and courts recognize several exceptions where the beneficiary may still recover:

  • Sale by Agent or Guardian: If a guardian or agent sells the property while the testator is incapacitated, the beneficiary may be entitled to the sale proceeds or substitute property.
  • Insurance Proceeds: If the property is destroyed and insurance proceeds are paid after death, the beneficiary may claim the proceeds.
  • Condemnation Awards: If the property is taken by eminent domain and compensation is paid after death, the beneficiary may claim the award.

Key Term: Ademption by Satisfaction The reduction or elimination of a gift because the testator gave the beneficiary the same property (or its value) during life, intending it to replace the testamentary gift.

Worked Example 1.1

A testator's will states: "I leave my painting by Monet to my friend, Sam." Before death, the testator sells the painting and does not own any Monet paintings at death. What does Sam receive?

Answer: Sam receives nothing. The gift is a specific devise, and since the Monet painting is not in the estate at death, the gift is adeemed by extinction.

Worked Example 1.2

A testator's will says: "I leave $10,000 to my daughter, to be paid from my savings account at First Bank." The testator closes the account before death, but has sufficient funds elsewhere. What does the daughter receive?

Answer: The daughter receives $10,000 from other estate assets. This is a demonstrative legacy, not a specific devise, so ademption does not apply.

Worked Example 1.3

A testator leaves "my house at 456 Oak Street to my brother." While the testator is incapacitated, a court-appointed guardian sells the house. The testator dies before regaining capacity. What is the likely result?

Answer: Under modern statutes, the brother may be entitled to the sale proceeds or substitute property, since the sale was by a guardian and not by the testator personally.

Exam Warning

Ademption does not apply to general or demonstrative legacies. If the will gives a sum of money or a gift from a specified fund, and that fund is insufficient or missing, the beneficiary usually receives the value from other estate assets.

Revision Tip

Always identify whether the gift is specific, general, or demonstrative before applying the ademption doctrine. Only specific devises are subject to ademption by extinction.

Key Point Checklist

This article has covered the following key knowledge points:

  • Ademption is the failure of a specific gift because the property is not in the estate at death.
  • Only specific devises are subject to ademption by extinction.
  • General and demonstrative legacies are not adeemed; beneficiaries receive value from other assets.
  • Modern exceptions allow recovery of sale proceeds or insurance in some cases (e.g., sale by guardian).
  • Ademption by satisfaction occurs when the testator gives the gift during life with intent to satisfy the will.
  • Correctly classifying the type of gift is essential for MBE questions.

Key Terms and Concepts

  • Ademption
  • Specific Devise
  • General Legacy
  • Demonstrative Legacy
  • Ademption by Extinction
  • Ademption by Satisfaction
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