Section 2-606
(a)
A specific devisee has a right to the specifically devised property in the testator’s estate at death and:
- (1) any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property;
- (2) any amount of a condemnation award for the taking of the property unpaid at death;
- (3) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property; and
- (4) property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation.
(b)
If specifically devised property is sold or mortgaged by a guardian of the estate conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
(c)
The right of a specific devisee under subsection (b) is reduced by any right the devisee has under subsection (a).
(d)
For the purposes of the references in subsection (b) to a conservator, subsection (b) shall not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator’s incapacity ceased and the testator survived the adjudication by 1 year.
(e)
For the purposes of the references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) “incapacitated principal” means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.
Comment
Purpose and scope
Under the “identity” theory followed by most courts, the common-law doctrine of ademption by extinction is that a specific devise is adeemed – rendered ineffective – if the specifically devised property is not owned by the testator at death. In applying the “identity” theory, courts do not inquire into the testator's intent to determine whether the testator's objective in disposing of the specifically devised property was to revoke the devise. The only thing that matters is that the property is no longer owned at death. The application of the “identity” theory of ademption has resulted in harsh results in a number of cases, where it was reasonably clear that the testator did not intend to revoke the devise. Notable examples include McGee v. McGee, 122 R.I. 837, 413 A.2d 72 (1980); Estate of Dungan, 31 Del.Ch. 551, 73 A.2d 776 (1950).
Recently, some courts have begun to break away from the “identity” theory and adopt instead the so-called “intent” theory. E.g., Estate of Austin, 113 Cal. App. 3d 167, 169 Cal. Rptr. 648 (1980).
Massachusetts comment
Massachusetts has followed the “identity” rule rather than the “intent” rule so far as ademption is concerned. See G. Newhall, supra, § 350. Most recently in BayBank Harvard Trust Co. v. Grant, 23 Mass. App. 653 (1987) the Court held that a specific bequest of a bank account had been adeemed since the testatrix had transferred the funds to another account (which meant they were readily traceable). The facts and circumstances approach of the UPC version of subsections (a)(5) and (a)(6) might tempt those whose bequests were adeemed to press the personal representative for a replacement or for its value. On balance, the Committee felt that the expense and delay inherent in such proceedings outweighed the possibility for correcting an occasional injustice, thus (a)(5) and (a)(6) were not adopted.