Master Sings Ademption Song; Holds That Specifically Devised Property Sold During the Decedent’s Lifetime Reflects the Intention to Revoke that Devise

Delaware Fiduciary Litigation Blog

Posted August 17, 2016

IMO Edward J. Burke Estate C.A. No. 10768-MA (August 10, 2016)

This is case involves a stepson who sued his stepmother, the attorney-in-fact of her late husband and the executrix of his estate, for breaches of fiduciary duties owed to her dead husband. The stepson alleged that the stepmom improperly took the proceeds from the sale of a property that was specifically gifted to him and his siblings in his father’s will and that she took money from a joint bank account that was created while she was his attorney-in-fact. The stepmom moved for summary judgment, arguing that, while the property was a specific gift to his children, her husband sold that property during his lifetime and, thus, that gift had lapsed. She further argued that adding her name to her husband’s accounts had no effect on the stepson because even if she had not added her name to the accounts, she would have inherited that money under the residuary clause in the will.

Master Ayvasian ruled in favor of the stepmother on all counts. She concluded that the specific devise of the property had failed because it was sold during the husband’s lifetime and that ademption had occurred (i.e. when a specific gift of real or personal property in a will is no longer available for delivery to a named beneficiary or beneficiaries because the testator lost or conveyed it prior to his death).  Even if the proceeds from the sale of the property could be traced to a specific bank account, the Master held that cash is not considered a substitute for real property. She held that, under Delaware law, the father knew that the will contained a specific devise of the property and that when he sold that property, that sale reflected the father’s intent to revoke the devise.  With regards to the stepmom adding her name to the bank accounts, the Master held that it made no difference because the stepson was not entitled to any of the assets from the accounts.


Phillip Giordano, GF&M Law
Gordon, Fournaris & Mammarella, P.A.