Legal Memorandum: Effect of an Absence of a Residuary Clause

Issue: Under California law, what is the effect of an absence of a residuary clause in a decedent’s will on determining whether a specific bequest has adeemed?

The California courts have opined that in the absence of a residuary clause it will be presumed that the settler or testator did not intend an ademption to arise from the sale of a specific legacy because that would result in partial intestacy, a result that it is presumed a settler or testator would not have desired.  See, e.g., Estate of Newsome, 248 Cal. App. 2d 712, 714 (1967) (“Where there is no residuary clause therein it may be inferred the testator intended to dispose of all of his estate through the specified devises and bequests and not to cause any thereof to fail by his transmutation of the property devised or bequeathed.”).  While the mere presence of a residuary clause does not compel the court to find a presumed ademption, Estate of Worthy, 205 Cal. App. 3d 760, 766 (1988), it has served to distinguish cases where the court relied on the absence of residuary clause to find nonademption.

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