Ademption by Extinction: Smiting Lord Thurlow’s Ghost

Compares two theories of interpretation of a testamentary gift. The identity doctrine, articulated by Lord Thurlow in 1786 and still the majority rule, dictates that an identified asset that is not held by the testator at time of death adeems. The intent doctrine, a modern approach promulgated by some in the legal community, would look to the testator’s intent by means of extra-will evidence. This article identifies means of escaping the harsh identity rule, the court’s adherence to Thurlow’s doctrine and willingness to deviate when other means of escape are unavailable, and relevant legislation along with the author’s suggestion on how to construe such extinction problems. The author suggests the identity theory be relaxed from a strict construction to a rebuttable presumption, allowing extra-will indicia of the testator’s intent to prevent ademption by extinction.