Law of Wills, 2016A

(c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the
devise, as appropriate, in applying §§ 29A-2-603 and 29A-2-604, unless the testator's writing
provides otherwise.
Problems
(Answer the follow questions, by first applying the common law and then applying the above
statute.)
1. In 2010, Della executed a will stating, “I leave $65,000 to my sister, Peggy and the rest of my
estate to my son, Clinton.” In 2014, Della lent Peggy $23,000 to pay her medical bills. In 2016, Della
died. What, if anything, will Peggy take from Della’s estate?
2. In 2009, Shelia executed a will stating, “I leave $150,000 to the Local Animal Humane Society,
and the rest of my estate to Local University.” In 2011, the main building of the Local Animal
Humane Society was destroyed by fire. Shelia sent the Local Animal Humane Society a check for
$50,000. In the memo section of the check, Shelia wrote, “Make the best of this cause you’re not
getting anything else from me.” In 2015, Shelia died. What, if anything, will the Local Animal
Humane Society take from Shelia’s estate?
3. In 2007, Jennifer executed a will stating, “I leave $200,000 to my son, Jeff, and the rest of my
estate to my daughter, Eliza.” In 2009, Jeff wrote Jennifer asking her to give him $85,000, so that he
could complete his graduate program. In response, Jennifer mailed Jeff a check for $100,000. She
included a note with the check stating, “This is half of what I planned to give you. You can spend it
how you wish.” In 2015, Jennifer died. What, if anything, will Jeff take from Jennifer’s estate?
15.5 Other Doctrines Relevant to Will Property
15.5.1 Exoneration of Liens
Testators often divide the devises in their wills into real and tangible personal property. For
instance, the house may go to A and the car may go to B. When a testator devises a piece of
property that is encumbered by a mortgage, things may get complicated. Consider the following
example. T executes a will leaving his house to A and the rest of the estate to B. At the time of T’s
death, the house has a mortgage of $40,000. The question is whether A takes the house subject to
the mortgage or whether B must pay the mortgage out of the residuary estate. Under the common
law doctrine of exoneration of liens, if a will makes a specific disposition of real or personal property
that is subject to a mortgage to secure a note on which the testator is personally liable, it is presumed
that the testator wanted the debt to be paid out of the residuary of the estate. Thus, in the above
example, A would get the house and B would get the $40,000 debt. Is this fair? What if the residuary
estate only contains $40,000? Some jurisdictions have enacted statutes reversing the common law
rule. Which approach do you think is best?
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