Class Gifts & Negative Bequests

Question 1

If a will makes a gift to a group of persons described as a generic class and some members predecease the testator - who takes?

Answer 1

All class members who survive the testator take in equal shares.

Question 2

Does the anti-lapse statute apply to class gifts?

Answer 2

If the class member who would have taken had they not predeceased testator is one of testator’s siblings or issue (and they have living issue) - anti-lapse will apply to save their share.

Question 3

Are class members born after testator dies included in the gift?

Answer 3

No - only those who are alive (or in gestation) at the time of testator’s death will take.

Question 4

If the gift is an outright testamentary gift, when does the class close?

Answer 4

At the testator’s death.

Question 5

If the gift is an income interest with a remainder to a class of beneficiaries, when does the class close?

Answer 5

At the death of the life tenant or income beneficiary.

Remember: the class closes when the first person in the class can take.

Question 6

Under common law, what effect do words of disinheritance have when the will does not make a complete distribution of the estate, resulting in partial intestacy?

Answer 6

Words of disinheritance do not affect anything distributed by intestacy (which is governed by law and not testator’s intent).

Question 7

In NY, what effect do words of disinheritance have when the will does not make a complete distribution of the estate, resulting in partial intestacy?

Answer 7

Words of disinheritance in a will are given full effect even when part of the estate is distributed by intestacy. Treat the disinherited issue as if she predeceased the testator.

But - don’t forget anti-lapse. If the person disinherited is a sibling or issue, and they have living issue: their gift goes to their issue.