* Death of Beneficiary During the Testator's Lifetime *

Question 1

Rule of Thumb

Answer 1

testator cannot make a gift to a deceased person

Remember- someone who disclaims is treated as predeceasing the testator

Question 2

Anti-Lapse Statute

Answer 2

• aka “does not fail” statute
• If a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses (fails) UNLESS (1) the predeceased beneficiary was testator’s issue or sibling, AND (2) this predeceased beneficiary leaves issue who survive the testator. In such an instance, the gift does not lapse but instead vests in the deceased beneficiary’s issue.

Question 3

Does anti-lapse apply to conditional bequests such as “if he survives me”??

Answer 3

NO- a condition to a bequest trumps anti-lapse

Question 4

Anti-lapse & “Adopted Out” Children

Answer 4

• generally, an adopted out child has NO inheritance rights from the birth parents or other members of the birth family
• NY Court of Appeals Case: if testator specifically names the adopted out child, and the adopted out child has predeceased testator, the anti-lapse statute saves the devise to the adopted out child’s issue

Question 5

Lapse in Residuary Gift

Answer 5

Absent contrary provision in the will, if the testator’s residuary estate is:
1- devised to two or more people; AND
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.