Construction of Wills (Ademption · Lapse · Abatement)
Wills & Succession · Lesson 05
Construction of Wills (Ademption · Lapse · Abatement)
這一課問的是：當贈與失敗、受贈人先死、或資產不足時，如何解釋遺囑？
ActorActObjectStandardConsequence
Visual Scene · the picture in your head
Issue. How should the will be construed when gifts fail, beneficiaries predecease, or assets are insufficient?
這一課問的是：當贈與失敗、受贈人先死、或資產不足時，如何解釋遺囑？
Core Terminology · 7 must-know
Tap a card to flip and reveal the meaning.
specific bequest
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Gift of identifiable item.
特定贈與。
general legacy
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Gift of money or fungible.
一般贈與。
residuary
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Remainder of estate.
剩餘遺產。
ademption
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Specific gift fails because property no longer in estate.
物消失。
lapse
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Beneficiary predeceases testator; gift fails.
失效。
anti-lapse
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Statute redirects lapsed gift to deceased beneficiary's descendants.
反失效。
abatement
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Reduction of gifts when estate insufficient.
減縮。
Issue · what this lesson is really about
How should the will be construed when gifts fail, beneficiaries predecease, or assets are insufficient?
這一課問的是：當贈與失敗、受贈人先死、或資產不足時，如何解釋遺囑？
Trigger words & phrases that should flag this issue:
specific bequestpredeceasedademptionabatementgeneral legacy
Expression Bank · how lawyers actually say it
Six function → sentence patterns. Use these in essay applications.
| Function | English sentence | 中文 |
|---|---|---|
| Apply ademption | Ademption by extinction: specific gift fails if property not in estate at death. | 物消失：死亡時不在 → 贈與失效。 |
| Apply lapse | Lapse: beneficiary's death before testator causes gift to fail unless anti-lapse statute applies. | 失效；除非反失效法適用。 |
| Apply anti-lapse | Anti-lapse statutes redirect to deceased beneficiary's descendants (often only for relatives). | 反失效法重定向至遺族。 |
| Apply abatement | Abatement order: residuary first, then general, then specific. | 減縮順序：剩餘、一般、特定。 |
Rule Sentence · the workhorse
When construing a will, specific gifts fail by ademption if the property is no longer in the estate; gifts to beneficiaries predeceasing the testator lapse unless saved by an anti-lapse statute; when the estate is insufficient, gifts abate in the order residuary, general, then specific.
Sentence Anatomy · 5 roles, 5 colors
Every rule sentence breaks into five visual roles.
Actor 行為人executor遺囑執行人
Act 行為construing will解釋遺囑
Object 對象gifts贈與
Standard 法律標準ademption + lapse + abatement物消失 + 失效 + 減縮
Consequence 後果gifts adjusted贈與調整
Casebook Snapshot · a real American case
Estate of Newman v. (state cases)
Holding. Ademption by extinction is generally applied where a specific bequest cannot be identified in the estate at death; many states have softened the doctrine through tracing rules or intent-based approaches.
Why it matters. Modern ademption applies more flexibly than the strict identity rule — intent often controls.
物消失於現代法以意圖更為彈性適用。
Common Mistakes · what trips students
✗ lapse 適用所有 beneficiaries。
✓ Anti-lapse typically applies only to certain relations.
反失效通常限於特定親屬。
✗ specific bequests 永久 protected。
✓ Ademption by extinction may fail them.
物消失可使其失效。
Mini IRAC · build the Application
Issue. Does T's gift of "my 2010 Honda Civic" to A fail by ademption when T sold the car five years before death and bought a 2020 Toyota?
Rule. Ademption by extinction causes a specific bequest to fail if the identified property is not in the estate at death.
Application (model). T's will specifically bequeathed her 2010 Honda Civic to A, but T sold the car before death and replaced it with a Toyota. Because ademption by extinction causes a specific bequest to fail when the identified property is no longer in the estate at death, the fact that the 2010 Honda Civic is not in T's estate at death means the gift adeems.
Pick the right element for each blank:
g1.
g2.
g3.
Conclusion. Therefore, A's gift fails by ademption; A takes nothing under that bequest (unless the will reflects substitution).
MBE Check · multiple choice
T's will leaves $10,000 to A (predeceased T) and the residue to B. Anti-lapse statute applies to relatives only; A was T's brother, survived by son S. What does S take?
Practice Drill · tap to build the rule
Drop the chips here in correct order:
Tap chips to add → tap chips in the target to remove: