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Surrogate’s Court determined that property transferred out of an estate and then recovered had not adeemed. In re Fitzsimmons, 43 Misc. 3d 483 (N.Y. Sur. Ct. 2014)


Ademption occurs when property bequeathed under a will is no longer in the testator’s estate at the time of the testator’s death. In the case of In re Fitzsimmons, the court had to considered whether property that was wrongfully transferred from an estate prior to a testator’s death, but subsequently recovered after the death of the testator should be considered to have adeemed.

In 1979, Lillian Hill, the decedent, and her husband William purchased the real estate that is the subject of this proceeding as tenants by the entirety. On February 3, 2003, after William’s death, the decedent executed a last will and testament. In it, she left the real property to her two daughters, Brenda and Marcia, in equal shares subject to a life estate given to Brenda. The residuary clause of the will provided that Brenda and Marcia each would share 50% of the net estate.

Later, Brenda became her mother’s attorney-in-fact. As such, she executed a deed transferring the property to herself three months before the decedent’s death in 2008. After the decedent’s death, but prior to the decedent’s will being admitted to probate, Brenda mortgaged the property for $101,750. Letters testamentary issued to Brenda and Marcia in May of 2009 and Brenda subsequently obtained a second mortgage on the premises for $215,000. However, due to the efforts of Marcia, the court found that the aforementioned deed was to be “declared null and void. As a result the property was part of the testator’s estate after testator’s death.

Marica, the petitioner, sought a determination that the specific devise of the real property had adeemed. She argued that since the real property was deeded to Brenda before decedent’s death, and that since the deed was not set aside until after her death, decedent was not seized of the subject real property at the time of her death. Consequently, Marcia theorizes that the specific devise of the property had adeemed at the time of the decedent’s death.  Now that it is back in the estate, the property became part of the residuary estate and not a specific bequest.  Marcia further argued that because Marcia and Brenda each shared 50% of the residuary estate, the effect of any such ademption would solely be the extinguishment of the life estate granted to Brenda.

In this complicated matter, the Surrogate’s Court first noted that although the decedent did not have record title to the premises at the time the instrument was admitted to probate, the estate recovered title and the property was available to be disposed of pursuant to the terms of the will. The question now is whether the specific devise of the real property be found to have adeemed when, although not owned by the decedent at the time of her death, it is later recovered by the fiduciary of her estate and is available for disposition?

Although the decedent did not have record title to the subject real property at the time of her death due to its transfer by power of attorney to Brenda, Brenda’s deed was voidable at the time of the decedent’s death. Consequently, the decedent’s estate still had an equitable interest in the real property. In other words, the estate recovered the property from Brenda. It is now unchanged in substance, existing in its original character and available for distribution pursuant to the will.

While applauding Marcia’s successful effort to regain property on behalf of the estate that rightfully belonged to the estate, Marcia cannot now seek to essentially change the terms of the will.  Thus, the court denied Marcia’s motion for summary judgment on the branch of her petition seeking a determination that the specific devise of real property under the decedent’s last will and testament adeemed.



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