Legal Memorandum: Ademption upon the Guardian's Sale in CA

Issue: Under California law, how is a court’s analysis of whether a specific bequest has adeemed affected where the disposition of the property was due to the actions of the testator’s or settler’s guardian, conservator or power of attorney?

Area of Law: Estate Planning & Probate, Family Law
Keywords: Ademption; Disposition of estate or trust property; An incompetent/incapacitated testator or settler
Jurisdiction: California
Cited Cases: 232 Cal. App. 2d 847
Cited Statutes: None
Date: 06/01/2011

One class of cases involving ademption concerning those in which the disposition of estate or trust property has been made by a third party acting for an incompetent/incapacitated testator or settler.  Estate of Mason, 62 Cal. 2d 213 (1965) is the leading case in this area of ademption jurisprudence.  There the court stated that “when the guardian of a mentally incompetent testator has sold property subject to a specific gift in his ward’s will, the beneficiary is awarded the proceeds of the sale.”  62 Cal. 2d at 215.  The court explained:

The reasons for refusing to find an ademption upon the guardian’s sale are: (1) The incompetent testator lacks intent to adeem and the opportunity to avoid the effect of an ademption by making a new will. ((2) A contrary rule would allow the guardian, by changing the form of guardianship property, to determine the distribution of the estate.


Id. at 216 (citations omitted).  Accord Brown v. Labow, 157 Cal. App. 4th 795 (trustee disposed of property) (2007); Estate of Packham, 232 Cal. App. 2d 847, 848-49 (1965) (guardian disposed of property); Estate of Ehrenfel, 241 Cal. App. 2d 215, 218-28 (1966) (guardian disposed of property).