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Other Limitations On Will Provisions

The law has made other exceptions to the general rule that a testator has the unqualified right to dispose of his estate in any way that he sees fit.

Charitable Gifts Many state statutes protect a testator's family from disinheritance by limiting the testator's power to make charitable gifts. Such limitations are usually operative only where close relatives, such as children, grandchildren, parents, and spouse, survive.

Charitable gifts are limited in certain ways. For example, the amount of the gift can be limited to a certain proportion of the estate, usually 50 percent. Some states prohibit deathbed gifts to charity by invalidating gifts that a testator makes within a specified period before death.

Ademption and Abatement ADEMPTION is where a person makes a declaration in his will to leave some property to another and then reneges on the declaration, either by changing the property or removing it from the estate. Abatement is the process of determining the order in which property in the estate will be applied to the payment of debts, taxes, and expenses.

The gifts that a person is to receive under a will are usually classified according to their nature for purposes of ademption and abatement. A specific bequest is a gift of a particular identifiable item of personal property, such as an antique violin, whereas a specific devise is an identifiable gift of real property, such as a specifically designated farm.

A demonstrative bequest is a gift of a certain amount of property—$2,000, for example—out of a certain fund or identifiable source of property, such as a savings account at a particular bank.

A general bequest is a gift of property payable from the general assets of the testator's estate, such as a gift of $5,000.

A residuary gift is a gift of the remaining portion of the estate after the satisfaction of other dispositions.

When specific devises and bequests are no longer in the estate or have been substantially changed in character at the time of the testator's death, this is called ademption by extinction, and it occurs irrespective of the testator's intent. If a testator specifically provides in his will that the beneficiary will receive his gold watch, but the watch is stolen prior to his death, the gift adeems and the beneficiary is not entitled to anything, including any insurance payments made to the estate as reimbursement for the loss of the watch.

Ademption by satisfaction occurs when the testator, during his lifetime, gives to his intended beneficiary all or part of a gift that he had intended to give the beneficiary in her will. The intention of the testator is an essential element. Ademption by satisfaction applies to general as well as specific legacies. If the subject matter of a gift made during the lifetime of a testator is the same as that specified in a testamentary provision, it is presumed that the gift is in lieu of the testamentary gift where there is a parent-child or grandparent-parent relationship.

In the abatement process, the intention of the testator, if expressed in the will, governs the order in which property will abate to pay taxes, debts, and expenses. Where the will is silent, the following order is usually applied: residuary gifts, general bequests, demonstrative bequests, and specific bequests and devises.

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