PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Ademption? Just Follow The Bread Crumbs

When property that has been specifically devised is no longer part of the testator’s estate at the time of his death, the devise fails or is “adeemed.” However, extrinsic evidence can prevent the ademption of a specific bequest if the bequeathed property can be traced to existing assets and if the evidence reflects that the testator did not intend by his disposal of the property to alter the testamentary scheme contained in his will.

In Estate of Jones, 472 So. 2d 1299 (Fla. 2d DCA 1985), testator’s will bequested his home to his neice. The testator subsequently sold his home and received a note and deed of trust to secure payment. The deed of trust note was prepaid in full to the testator. The testator subsequently died without having changed his will. An amended inventory revealed that his estate included a money market certificate in the amount of the deed to trust in the decedent’s regular account. At trial, the niece attempted to introduce testimony that the testator knew that she needed money because of her debilitating health; however, the trial court refused to entertain evidence concerning the intent of the testator because he found that there was no ambiguity in the will which would require clarification by parol evidence. The trial court held that the specific bequest to the niece failed because it was no longer in existence. The appellate court reversed and remanded. The court reasoned that the issue was not whether the will was ambiguous, but whether Mr. Jones intended that the prepayment of his promissory note would have the effect of disinheriting his niece. The fact that he lived for five more months without changing his will may indicate that she was no longer the object of his bounty. That he segregated the proceeds of the prepayment in a form that was easily traceable may suggest a contrary intent. In any event, in order to properly determine whether ademption occurred, the court should entertain all relevant evidence pertaining to the decedent’s intent.

In Budny v. Mikell (in Re Estate of Budny), 815 So. 2d 781 (Fla. 2nd DCA 2002), Mr. Budny left a will that he had executed jointly with his wife whom he survived. The will devised specific properties to both Vincent, Jr. and Mikell. By the time Mr. Budny died, many of the devised properties had been sold. After the will was admitted to probate, Mikell filed a petition for determination of beneficiaries and shares and sought to share equally in the estate with Vincent, Jr. The probate court found that it was Mr. Budny’s intent in his will and upon his death to provide for both Vincent, Jr. and Mikell equally. The appellate court, in reversing the lower court, reasoned:

When property that has been specifically devised is no longer part of the testator’s estate at the time of his death, the devise fails or is “adeemed.” [citation omitted] Florida recognizes an exception to this rule: Extrinsic evidence can prevent the ademption of a specific bequest if the bequeathed property can be traced to existing assets and if the evidence reflects that the testator did not intend by his disposal of the property to alter the testamentary scheme contained in his will. [citation omitted] But that exception is inapplicable here. One of the lots devised to Mikell was sold shortly after Mr. and Mrs. Budny executed the will in 1972. Mikell testified that Mr. Budny sold the other lot that had been meant for her two years before his death. She posited that the proceeds remained in a bank account listed in the estate inventory, but neither the inventory nor any bank account records were introduced into evidence. In any event, Mikell’s assertion that the proceeds remained in the account was contradicted by her own testimony that her stepfather had sold the lot to meet living expenses. This fact also disproved the notion that when selling the lot Mr. Budny nevertheless intended to maintain the testamentary scheme set forth in his will. [citation omitted] Finally, even if the evidence had supported excepting the bequests from ademption, this would have applied only to assets associated with those specific bequests; it would not have entitled Mikell to share equally in the assets of the estate.

Ademption Statutes:

  • 732.605 Change in securities; accessions; nonademption
  • 732.606 Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance
  • 732.609 Ademption by satisfaction