Trusts and Estate Planning: Precatory Language, Ademption, and Abatement
One of the main purposes for making and leaving a will is to guide the administration of the estate of the testator--the person who made the will. A will should be written in language that is clear and indisputable. Alas, the language in a will may be unclear or vague. This article discusses the will interpretation and construction issues of precatory language, ademption, and abatement.
A will may use language that expresses a hope or wish, but which does not state that the testator directs anything in particular, if at all. Such language is known as precatory language. Precatory language is usually interpreted as an advisory message and not as a mandatory message.
Suppose that a will states: "I give my niece $50,000 so she can go to private school." Many courts would rule that the niece does not have to attend private school, or any school, to collect the $50,000. The precatory language will not be deemed to be a condition on the gift.
It often happens that a gift in a will fails because the property that the will claims to give away is not in the testator's estate when the testator dies. This occurrence is known as ademption.
There are two kinds of ademption. Ademption by extinction means the property is not in the testator's estate because it was transferred, substantially changed, or destroyed before the testator's death. In other words, ademption by extinction means that the testator's estate does not have it.
Ademption by satisfaction means that the property is not in the testator's estate because it was already intentionally transferred by the testator to the beneficiary. In other words, ademption by satisfaction means that the beneficiary already has it.
It often happens that a gift in a will fails in whole or in part because there is not sufficient property in the testator's estate to give the beneficiary the full amount. In other words, there is not enough property in the testator's estate to make all the gifts in the will. This occurrence is known as abatement. Traditionally, where abatement is necessary, residuary gifts are first reduced or eliminated, then general legacies are reduced or eliminated, and finally specific bequests. Most states provide an order of abatement indicating which kinds of gifts fail until there is sufficient property in the testator's estate to make the remaining gifts.
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