MBE Rules · Wills, Trusts & Estates
Ademption of Specific Devises
In re Estate of Newsome (1967) 248 Cal.App.2d 712
The rule
A specific devise is adeemed (extinguished) if the specifically identified property is not owned by the testator at death. Ademption by extinction applies only to specific devises, not general or demonstrative devises. Modern doctrine looks to the testator's probable intent in close cases.
In plain English
Ademption of specific devises occurs when the property that was specifically left to someone in a will is no longer owned by the testator at the time of their death. This rule only applies to specific devises, meaning particular items, and not to general or demonstrative gifts. In ambiguous situations, courts may consider what the testator likely intended.
Worked example
A testator leaves their vintage car to their friend in their will. However, the testator sells the car before passing away. Since the car is no longer owned by the testator at death, the specific devise is adeemed, and the friend receives nothing.
Memory hook
If it's gone, it's gone: specific devises vanish with the property.
The trap
Exams may include scenarios where property is replaced or sold, leading students to mistakenly believe the devise still holds. It's crucial to recognize that only specific devises are affected by ademption.
How examiners test it
Questions often present fact patterns involving the sale or loss of specific property, testing the candidate's understanding of ademption and the distinction between specific and general devises.
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