Lapsed Gifts

Question 1

Lapsed Gifts: Situation

Answer 1

If will beneficiary dies before testator (or dies within 120 hours after testator’s death), the gift lapses, UNLESS

Texas anti-lapse statute applies

Question 2

Lapsed Gifts: Texas anti-lapse statute

Answer 2

Texas anti-lapse statute:

If (a) Predeceasing beneficiary was a descendant of testator’s parents; and

(b) predeceasing beneficiary has descendants who survive testator by 120 hours

THEN

beneficiary’s descendant(s) take per capita with representation

If predeceasing beneficiary has no descendants, then it falls into residual estate.

Question 3

Lapsed Gifts: Non-descendant of T’s parents

Answer 3

If pre-deceasing beneficiary is not a descendant of T’s parents, then lapsed gift goes to residuary (surviving beneficiary rule:

Surviving Residuary Beneficiaries Rule : if pre-deceasing residuary beneficiary is not a descendanat of T’s parents, the surviving residuary beneficiaries (if any alive) take his share in proportion to their interests.

Only applies if deceased residuary beneficiary does not meet the TX anti-lapse statute.

e. g. Toby’s will devises “all the rest and residue of my estate in equal shares to my good friend Alan, my brother Bill, and my sister Clara.” Alan predeceases Toby, leaving a child (Andy) who survives Toby by 120 hours. Bill and Clara survive Toby. What happens to the one-third residuary share bequeathed to Alan? Alan’s interest goes 1/2 to Bill and 1/2 to Clara
* this only applies if the anti-lapse statute does not apply. In the example above, since Alan was not a descendant of Testator, he does not fall under the anti-lapse statute and his share of the residuary goes to the other two.

Question 4

Lapsed Gifts: Class Gifts

Answer 4

Gift by will to a class of persons (“children”, “brothers and sisters”, etc.)

Class members who survive the testator take.

Rule of convenience: class closes at the time of testator’s death (subject gestation principle)

Question 5

Lapsed Gifts: Class Gifts (adoption)

Answer 5

Contrary to other language, gifts to “children”, “descendants”, presumptively includes adopted children (but not children adopted as adults).

Question 6

Lapsed Gifts: Void Gifts

Answer 6

If beneficiary named in will was dead at the time the will was executed (making the gift void, not lapsed), the surviving residuary beneficiaries and anti-lapse rule still apply

Exception: if class member was dead when will was executed, anti-lapse statute does not apply