Tuesday, November 4, 2008
Joshua A. Mullen recently authored a case note entitled Property – Administration of Wills – Common Law Ademption by Extinction and the Applicability of Tennessee Code Annotated Section 32-3-111 (Stewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007)), 75 Tenn. L. Rev. 577 (2008).
Here is an excerpt from the article's conclusion:
The Stewart v. Sewell holding provides a solid foundation for the application of statutes to probate matters in Tennessee. Instead of looking at a sensitive factual scenario and working to avoid harsh results by incorrectly applying a statute retroactively, the Tennessee Supreme Court chose legal consistency over case-by-case confusion. The court's decision also provides a detailed example of why Tennessee Code Annotated Section 32-3-111 is a welcome change to the common law of Tennessee. By prohibiting ademption when the property is sold by a guardian or conservator acting under a durable power of attorney, the statute will protect the intent of future testators and allow parties to better plan for death and incapacity.