Changes to people between execution and Death

Question 1

Survival

Answer 1

beneficiaries must outlive the testator.

a. Typical rule is 120 hrs, some states say an instant is enough. wills usually specify how long someone must survive.
b. If beneficiary survives but not for required amount of time, then beneficiary treated as if beneficiary predeceased the testator

Question 2

Lapse

Answer 2

when beneficiary predeceases testator. or treated as if predeceased because disclaimed or didn’t survive enough time

a. Distribution—generally
i. look to express terms of will
ii. If silent, look to state law to see if gift saved (anti lapse or cy pres doctrine for charity)
iii. Then, Residual clause
iv. Then via intestacy

Question 3

Anti-lapse statutes

Answer 3

i. prevents lapse in some circumstances—substitute descendants of the predeceased beneficiary for the predeceased beneficiary.

ii. Jdxns vary –
1. some states apply only to lineal descendant.
2. some states allow other parents

APPLIES ONLY TO WILLS NOT INTESTACY

So if the state has a statute like this , IT gets rid of the status quo in intestacy and states without a statute, that if beneficiary predeceases testator, the beneficiary’s descendants get nothing (unless theyre grandkids under per stripes)

Question 4

Partial lapse in the residual clause

Answer 4

i. I leave residuary to my friends A, B, C. A dies Jdxns vary
1. Some states—1/3 via intestacy
2. Some states—apply survivorship to residual beneficiaries
a. therefore, B and C split A’s lapsed gift

Question 5

Cy pres for charitable gifs in wills

Answer 5

court finds substitute equitable equivalent. Court finds general charitable intent broader than the charitable purpose which cant be carried out, for ex charity no longer exists or purpose satisfied. But if settlors intent was specific, then cy pres not available.

i. For ex polio no longer a problem, and money lent to cure polio.
ii. Court will try to say that there was general charitable intent, charities will try to prove their work is similar to the testator’s intent.
iii. Heirs will try to say it should go to heirs not any charity at all.
iv. Court will look to all extrinsic evidence. Court can divvy it up