Death of a Beneficiary During the Testator's Lifetime

Question 1

Lapse

Answer 1

A testator cannot make a gift to a deceased person- gift lapses

Unless NY anti-lapse statute applies

Question 2

Anti-Lapse Statute

Answer 2

Gift does not lapse, but VESTS in the deceased beneficiary’s estate if both the following conditions are met:

(1) predeceased beneficiary is T’s issue, brother or sister; AND
(2) predeceased beneficiary leaves issue who survive T

Question 3

Condition to bequest v. anti-lapse

Answer 3

Condition to bequest trumps anti-lapse

ex- “if he survives me”

Question 4

Death of “adopted out” child

Answer 4

if specifically named, the anti-lapse statute saved the testator’s devise to the adopted out son’s issue

Question 5

Lapse in residuary gift

Answer 5

Absent a provision in the will, if T’s residuary estate is:

(1) devised to two or more persons;
(2) the gift to one of them fails or lapses for any reason; AND
(3) the anti-lapse statute does not apply,

THEN, the other residuary beneficiaries take the entire residuary estate in proportion to their interests

Question 6

Class gifts in general

Answer 6

If class gift that does not include your issue or brother and sister, don’t apply anti-lapse

Question 7

Adopted out child in class gifts

Answer 7

removes him from the class

Question 8

“Rule of Convenience”

Answer 8

Class closed at the time a distribution to the class must be made, including those in gestation (presumption that they were in gestation if born 280 days or less from the death)
-Later-born members are excluded from taking as members of the class.