Changes to People After Will Execution

Question 1

Survival rules re: beneficiary

Answer 1

survival of beneficiary must be shown by **clear and convincing evidence **

Question 2

How can lasped gifts be distributed (generall)?

Answer 2

1. under the express terms of the will
2. by an anti-lapse statute
3. via a residuary clause
4. via intestacy

Question 3

Anti-lapse statute in CA

Answer 3

The CA anti-lapse statute substitutes the descendants of the predeceased beneficiary under certain circumstances. the anti-lapse statute operates to save the gift if the predeceasing beneficiary:
1. was kindred (blood relative) of testator or kindred of testator’s surviving spouse
2. left descendants who survived testator

Question 4

Does the anti-lapse statute apply if there is a contrary will provision?

Answer 4

No, it does not apply if a contrary provision appears in the will. Words of survivorship associated with the gift constitute a contrary will provision.

However, a general disinheritance clause does NOT constitute a contrary will provision.

Question 5

Lapse in residuary gift

Answer 5

At common law, if a will devised the residuary estate to two or more beneficiaries and one of them predeceased the testator, the deceased beneficiary’s share passed by intestacy.

CA has replaced this “no residue of a residue” rule with one allowing the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue.

Question 5

Class gifts

Answer 5

If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.

Anti-lapse statute applies to class gifts whether the class member’s death occurred before or after the testator executed the will.

Question 6

What happens if a beneficiary is dead at the time the will is executed?

Answer 6

The gift is void. The rules that apply to lapsed gifts also apply to void gifts.