Law of Wills, 2016A

the testator’s lifetime, that gift may be considered to be adeemed by extinction. If the testator gives
his or her child property of a similar nature to that devised to the child in the will, the law presumes
that the gift was in satisfaction of the gift devised in the will. This presumption is rebuttable.
Consider the following example. T leaves a will stating, “I leave $100,000 to my son, Steve, and the
rest of my estate to my daughter, Bernice. Afterwards, T gives Steve a gift of $80,000. Then, T dies.
Since there is a presumption that the later gift was in partial satisfaction of the will devise, Steve only
takes $20,000 of T’s estate.
In re Estate of Condon, 715 N.W.2d 770 (Iowa Ct. App. 2006)
BEEGHLY, S.J.
I. Background Facts & Proceedings
Marguerite Condon executed a will in 1989 which made specific bequests to five charities. She also
made a bequest of $10,000, to be divided by the five children of her deceased brother, Gregory
Mowry. In addition, the will stated:
I give and bequeath the sum of $10,000 to my niece and nephew, who are the
children of my deceased sister, MARY ANN PARSONS, namely CHARLES
PARSONS and VIRGINIA MALONEY, share and share alike; and in the event
either of my niece or nephew predecease me, then the share of the one so dying
shall go to the survivor.
Marguerite’s son, Robert Condon, was made the residual beneficiary of the will.
Charles died in 1992. During the months of June and July 1996, Marguerite wrote checks to the
specific beneficiaries under the will, except for Charles, for the amount specified in the will. In the
memo portion of the checks, she wrote “will payment.” One of the checks was written to Mary
Virginia Maloney for $5,000. Robert testified Marguerite made these payments because “she wanted
to have the satisfaction of knowing that she gave the money to the people she wanted to receive it.”
Marguerite died on January 22, 2003. Robert was appointed as the executor of her estate. As the
executor, Robert took the position that the specific beneficiaries had already been paid in 1996 the
amount they would have received under the will, except that Mary was owed $5,000, which
represented Charles’s share. The charitable beneficiaries and Mary Caldron, one of the children of
Gregory, signed receipts and waivers, agreeing they were owed no additional sums. The other
children of Gregory neither signed the waivers nor objected. The executor filed a final probate
report which provided, “it appears that the devisees and beneficiaries shown in the Last Will &
Testament have received their share of the bequest that was provided in the Last Will & Testament
when the decedent made an advance payment in 1996....”
Mary objected to the final report. She claimed that Marguerite’s will did not provide for
advancements, and that the 1996 payments should not be considered as the payments that were due
under the will because the 1996 payments were in fact gifts. A hearing on the final report was held.
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