Death of Beneficiary Before Death of Testator Flashcards
Void Devises
A gift is void if the beneficiary is dead when the will is executed; a void gift is treated the same as a lapsed gift for most purposes under the modern trend
Lapse Devises
When a beneficiary is alive when will is executed but predeceases the testator, the gift is said to lapse and it fails.
Lapse analysis (step 1)
Classify the gift as either specific, general, demonstrative, or residuary
Lapse analysis (step 2)
Apply the relevant common law rule (3 rules)
(a) A specific, general, or demonstrative gift that lapsed fell into the residuary
(b) A residuary gift that lapsed fell outside the will and passed by intestate succession
(1) If only a part of the residuary lapses:
a. “No residue of a residue” rule
i. If only a share of the residuary lapses, at common law that share passes by intestacy
(c) Class gifts that lapse are automatically absorbed by the remaining class members who survived the testator
Lapse analysis (step 3)
Ask whether or not an anti-lapse statute exists
(a) If yes, must ask “does it apply”
(1) Test the relationship between the testator and the deceased beneficiary
a. If the statute apples, the gift will not lapse – the gift will go to the beneficiaries of the dead gift recipient, per stirpes
Lapse analysis (step 4)
does the words of the will themselves trump the statute
(a) Does the will specifically say “in the event that X does not survive me, then that gift goes to Y” (“providing an heir and a spare”)
UPC Anti-lapse section
2-605
Anti-lapse rule
Where there is a lapse, and
The predeceased beneficiary meets the statutory degree of relationship to the testator, and
The predeceased beneficiary has issue who survives the testator, the lapsed gift goes to the issue of the predeceased beneficiary
UNLESS the will expresses a contrary intent
Class Gifts
If a class member predeceases the testator, the surviving members of the class divide the total gift, including the deceased member’s share
UNLESS – an anti-lapse statute applies
What is a class gift
A gift to a more than one individual that intrinsically includes a right of survivorship – which means that if the gift fails as to a member of the class, her share does not “fall” out of the class – the shares of the surviving members of the class are recalculated
When does a class gift arise?
A class gift arises if the testator was “group minded” – if he uses a class label in describing the beneficiaries i. EXAMPLE: To A’s children or to my nephews and nieces
Application of anti-lapse statutes to class gifts
i. Anti-lapse = the saved gift goes to the issue of the predeceased beneficiary
ii. Class gift doctrine = the saved gift goes to the other members of the class
A gift to named beneficiaries who form a natural class may be deemed a class gift if:
the court decides that the testator would have wanted the survivors to divide the share of a predeceasing beneficiary rather than for it to lapse
