Brief Fact Summary. Frieda Drapkin created a will that disposed the residuary of her estate to her revocable intervivos trust. She devised a specific item of real property but sold it before her death. The Probate Court denied a request by the beneficiary to receive the proceeds from the sale of the building.
Synopsis of Rule of Law. If a will and trust are executed as a part of one testamentary plan, the law of wills applies to the trust. If a specific devise in a will is not in existence and owned by the testator at the time of the testator’s death, the devise is adeemed.
Whether the doctrine of ademption should be discontinued because it ignores the testator’s intent, is overly formalistic, produces harsh and inequitable results and fosters litigation that the rule was intended to preclude, and thereby should be discontinued.
Whether the doctrine of ademption should be applied to a trust that was created along with a will in one testamentary estate plan.
Whether the Court must consider the intent of the testator in order to determine the validity of a trust in making a specific devise, if the devise is not in existence a the time of the testator’s death
No. The doctrine of ademption gives effect to the probable intent of the testator that he intended to extinguish a certain gift of property that he disposed of prior to his death. The doctrine is easily understood and applied by testator, draftsmen, and fiduciaries. Harsh results may be prevented by careful draftsmanship. Many people have already and are currently drafting documents in reliance on thee doctrine. Courts have not moved away from making such classifications. Therefore the Court will continue applying the doctrine of ademption.
Yes. When a will and trust are created together as a part of one testamentary plan, the trust should be analyzed using the traditional rules of wills. Here the will and trust were executed as a part of one testamentary plan because the testator disposed of a majority of her estate to her trustee who then was to dispose of the property according to the terms of the trust.
No. A specific legacy or devise is not effective if the item is not in existence and owned by the testator at the time of his death. When a testator disposes during his lifetime, a legacy or dives in hi will, the legacy or devise is adeemed, despite the intent or motive of the testator.
In order to make a specific legacy effective, the property bequeathed must be in existence and owned by the testator at the time of his death.View Full Point of Law