Code of Virginia § 64.2-415. How certain trust provisions, bequests, and devises to be construed; nonademption in certain cases.

870 words·~4 min read·/va/title-64-2/chapter-4/64-2-415

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A. As used in this section:

"Incapacitated" means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

"Revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701 .

B. Unless a contrary intention appears in the will or trust instrument:

1. A bequest or trust provision requiring distribution by reason of the settlor's death of specific securities, whether or not expressed in number of shares, shall include as much of the securities as is part of the estate or is or becomes part of the trust by reason of the testator's or settlor's death, any additional or other securities of the same entity owned by the testator or trustee by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest or trust provision as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;

2. A bequest, devise, or trust provision requiring distribution by reason of the settlor's death of specific property shall include the amount of any condemnation award for the taking of the property that remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and

3. A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2.

This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.

C. Unless a contrary intention appears in a testator's will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection,

(i)the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2,

(ii)no adjudication of the testator's incapacity before death is necessary, and

(iii)the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply

(a)if the agent's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or

(b)to a power of attorney limited to one or more specific purposes.

D. Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.

E. Unless a contrary intention appears in the trust instrument, a provision requiring distribution of specific property by reason of the death of the settlor shall, in addition to such property that is or becomes part of the trust by reason of the settlor's death, be deemed to be a distribution of a pecuniary amount if, while the settlor was incapacitated,

(i)such specific property was sold by the trustee or

(ii)the proceeds of fire or casualty insurance as to such property were paid to the trustee. For purposes of this subsection, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2. For purposes of this subsection, no adjudication of the settlor's incapacity before death is necessary. This subsection shall not apply if the trustee's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the settlor.

F. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the distribution occurs by reason of the settlor's death and is of property that is or becomes part of the trust by reason of the settlor's death.

Code 1950, § 64-66; 1968, c. 656, § 64.1-66; 1985, c. 429, § 64.1-62.3; 1995, c. 381 ; 2012, cc. 476 , 507 , 614 ; 2018, c. 44 .