731 N.W.2d 19 (Iowa 2007)
In 1972, Hestor Mary Lewis Anton married Herbert Anton, the father of Gretchen Coy.1 Gretchen deeded a piece of real property to her stepmother and father, who built a duplex on the property.2 After Herbert's death in 1976, Mary became the sole owner of the duplex.3
In 1981, Mary executed a will bequeathing half of her interest in the duplex to Gretchen and the remaining half to her biological son, Robert Lewis, with the remainder of her estate left to Robert and her daughter, Nancy Ezarski.4
In 1986, Mary suffered a serious automobile accident and subsequently lived in a series of nursing homes while suffering from Huntington’s Chorea.5 She executed a durable power of attorney authorizing Nancy to manage her financial affairs, effective immediately and remaining in force until Mary's death on December 2, 2003.6 From 1986 onward, Nancy handled Mary's financial affairs with no evidence of impropriety.7
On Memorial Day 1998, Nancy and Mary discussed selling the family residence for support, but nursing home staff advised against further financial discussions, after which Nancy sold assets to pay expenses without Mary's knowledge of the duplex sale.8 By 2003 the duplex was the only remaining asset; Nancy sold it on August 28, 2003, after consulting an attorney and exhausting other funding sources, realizing net proceeds of $133,263 with a balance of $104,317.38 at Mary's death.9
Evidence of Mary's capacity at the time of sale was limited to nurses' notes indicating periods of confusion in April 2003 and advanced dementia by October 2003, along with Nancy's June 2003 statement that Mary slept almost all the time, though Nancy later testified her mother was not incompetent.10 After Mary's death, Gretchen filed a claim in probate court for $72,625 based on the will's specific bequest.11 The district court denied the claim after trial, the court of appeals affirmed, and the Supreme Court of Iowa granted further review.12
Whether the sale of the duplex by an attorney-in-fact prior to the testator's death resulted in ademption of the specific property bequest?13
Under the modified intention theory of ademption, the identity rule is not rigidly applied when specifically devised property is removed from the estate through an act involuntary as to the testator. Ademption occurs only where the testator had knowledge of the transaction, realized its effect on the estate plan, and had an opportunity to revise the will. Iowa Code section 633.705(1) makes the acts of the attorney-in-fact binding on third parties but does not address entitlement to proceeds of a specific bequest.14
No. Applying the modified intention theory to the facts, the sale by the attorney-in-fact did not cause ademption because Mary did not have knowledge of the duplex sale and thus no opportunity to change her will.15 The 1998 discussion concerned only the family residence, and Nancy avoided further discussions on nursing home advice, selling the duplex in 2003 without informing Mary to avoid distress.16 With evidence of Mary's diminishing mental capacity, the sale was involuntary as to her, similar to sales by guardians in Bierstedt.17 The statute does not alter the ademption analysis for specific bequests.18
Therefore, the bequest is not adeemed to the extent of the remaining proceeds.19
The sale of the duplex by the attorney-in-fact did not result in ademption of the specific property bequest.20