The decedent and his wife had no children, and were close to the wife’s family. The decedent’s wife had predeceased him, and had left him her entire estate. In his Last Will and Testament, the decedent directed that his wife’s relatives were to receive “the total sum of moneys” that he had received from his wife’s estate “per stirpes, as set forth on the attached Schedule A (Numbers 2 and 3 only).” The decedent left the residue of his estate to his own family, and named his own brother as the Executor. At the time that those two accounts had been transferred to the decedent from his wife’s estate, they were valued at more than $250,000, but at the time of his death, they had been depleted and the accounts had been closed.

After he had executed his Will, the decedent had used the money from those two accounts for his own care needs and for other expenses. His lawyer had advised the decedent’s brother that the decedent could use the money in those accounts during his lifetime, because they were not being held in trust. The lawyer also told the decedent that he could contact her to revise his Will whenever he wished; he did not do so.

After the decedent’s death, the Executor filed an accounting with the court and asserted that, under the Will, the bequest of the two accounts to the predeceased wife’s family had adeemed, and were no longer available for distribution to them. This would mean that the wife’s family would receive nothing.

The predeceased wife’s family disputed this, contending that the bequest to them was “demonstrative,” not “specific,” and that it was therefore not subject to ademption. The trial judge agreed with the Executor, finding that the bequests were specific and had adeemed. The predeceased wife’s family appealed.

On appeal, the Appellate Division discussed the distinction between demonstrative and specific bequests, and the concept of ademption.

As the court noted, there are three types of testamentary bequests: general, specific, and demonstrative. A general bequest is payable from the general assets of the estate, rather than from specific property. A specific bequest is not payable from general assets of the estate; instead, it is paid from specific personal property. A demonstrative bequest is first payable from specific property, but it is “chargeable against other assets of the estate if that property is insufficient.” Unless a testator contemplates and intends for a bequest to be a specific item of property and the subject matter of the bequest is “sufficiently individuated,” the bequest is deemed either general or demonstrative. To make this determination, the intention of the testator controls.

The wife’s family argued that, by using the words “total sum of moneys,” the testator intended a demonstrative bequest that should be paid from the general estate, since those two accounts had been depleted. The court disagreed, finding that, by specifying that the bequest would be from account “Numbers 2 and 3 only,” the decedent intended a specific bequest.

The court explained that specific bequests are “unique because unlike general and demonstrative bequests, they are subject to ademption,” and because the bequest here was specific, it was subject to ademption.

Ademption applies when “the subject [of the bequest] is lost, destroyed, or subsequently disposed of… or so altered in form” by the testator that it indicates a “change of testamentary intent” on the testator’s part. When a testator’s actions raise the issue of whether ademption has occurred, the inquiry must be determined based on the probable intent of the testator.

Here, the court concluded that the decedent had intended to bequeath those two accounts to his wife’s family. He had understood that those funds were not “in trust,” and could be spent by him as he saw fit during his lifetime. He had also understood that he could revise his Will if he so wished, but he chose not to do so. The court held that, to the extent that the decedent liquidated the money in those two accounts during his lifetime, he had intended the bequest of those accounts to adeem. Accordingly, the court affirmed the trial court’s ruling that the bequests to the wife’s family had adeemed.

A copy of In re Estate of Hoffman can be found here:

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