Melican v. Parker, 289 Ga. 420 (May 31, 2011)

There are all sorts of reasons for why probate practice is interesting. Consider, for example, that even the simplest one-page will is governed by a complex body of law, developed over centuries, that appears nowhere within the four corners of the document, yet can have dramatic consequences. In Florida, this body of law, known as “rules of construction” (i.e., rules that apply when the will is silent, but which can be varied by the terms of the will), has been largely codified in Part VI of chapter 732 of Florida’s Probate Code

The rule of construction at issue in the linked-to case is Florida’s "nonademption" statute (F.S.732.606).

Ademption is a common law rule of construction used to determine what happens when a specific item of property gifted under a will is no longer in the testator’s estate at the time of his death. In those cases the specific gift is considered "adeemed," and the gift fails. For example, if testator "X" signs a will specifically devising his condominium located in Marco Island to "Y," but later sells the Marco Island condominium and buys a replacement condominium for him and Y to enjoy in the Florida Keys, Y gets nothing: the will said Marco Island condo’, not condo’ in the Keys.

The ademption rule was simple, but often ended up disinheriting people in a way that seemed unfair and contrary to what testators would have wanted. The more modern view, reflected in section 2‑606 of the Uniform Probate Code, reverses the common law rule in certain cases.

For example, does Y get anything if X signed a sales contract to sell the Marco Island condominium before his death, but the sale didn’t close until after he died? That’s what happened in the linked-to Georgia Supreme Court case applying Florida law. Under the common law rule, Y gets nothing. Applying the UPC’s modern view, Florida’s nonademption statute completely changes this outcome: Y may not get the condominium, but when the deal closes, she gets the cash. Here’s why:

Pursuant to Fla. Stat. § 732.606(2)(a) (the “nonademption statute”), “[a] specific devisee has the right to the remaining specifically devised property and … [a]ny balance of the purchase price owing from a purchaser to the testator at death because of sale of the property.” Therefore, where, as here, a balance is owed to a testator from the sale of his or her real property located in Florida, the proceeds from this sale are due to the specific devisee who would have otherwise inherited the real property under the will. Id. See also Ott v. Ott, 418 So.2d 460, 462 (Fla.App.1982) (“The original intent of the [nonademption statute] … was to prevent ademption in all cases involving sale … of specifically devised assets when the testator’s death occurred before the proceeds of the sale … had been paid to the testator”) (citation and punctuation omitted; emphasis supplied). Accordingly, Melican, as the specific devisee of the Florida condominium under Strother’s Will, was entitled to the proceeds from the sale of the condominium after Strother’s death, as these proceeds had not yet been paid to Strother before he died. Fla. Stat. § 732.606(2)(a).