Chapter 12.8 Ademption, Advancement, and Exoneration

• Jurisdiction: Washington

§12.8 ADEMPTION, ADVANCEMENT, AND EXONERATION

Testamentary gifts may not be transferred to the intended beneficiary under certain circumstances. Transfers may be ineffective if the gift property no longer exists (is "adeemed by extinction") or if the gift was transferred to the recipient during the testator's lifetime (is "adeemed by satisfaction"). In re Estate of Frank, 146 Wn.App. 309, 319, 189 P.3d 834 (2008). In Washington, the ademption doctrine does not apply to dispositions of property effectuated prior to the execution of the will. Id. at 321.

(1) Ademption

The common-law doctrine of ademption provides that a bequest of specific property in a will is revoked (the gift is "adeemed by extinction") if the testator no longer owns the property at the time of death.

In In re Doepke's Estates, 182 Wash. 556, 563, 47 P.2d 1009 (1935), the will left "the sum of $3,000, being the amount of life insurance left by my husband," and the life insurance proceeds had been exhausted by the time the wife died. The court held that it must attempt to determine the intention of the testator at the time the will was drafted (rather than when the money was spent), and that in doubtful cases bequests are deemed to be general rather than specific. In this case

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the bequest was held to be a general one not adeemed or extinguished by the exhaustion of the specific fund referred to in the will.

RCW 11.12.060 is a limited exception to the doctrine of ademption, providing that when a testator devises property by will and subsequently contracts to sell the property the devisee acquires the property on the decedent's death, but acquires it subject to the rights of the purchaser. Thus when real estate specifically devised in a will was the subject of a contract to sell, and the deed and proceeds were in escrow at the time of death, the beneficiary of the specific bequest was entitled to the proceeds. Wash. Escrow Co. v. McKinnon, 40 Wn.2d 432, 243 P.2d 1044 (1952). Had the testator died immediately after completion of the closing rather than before, the result would have been the opposite. See also Estate of Frank, 146 Wn.App. at 325.

Less clear is what happens when a decedent sells specific property and provides purchase money financing by way of a real estate contract. Although that situation would seem to come within the provisions of RCW 11.12.060, because the specific language in RCW 11.12.060 refers to "a bond, covenant or agreement made for...