Pg 18 Flashcards
If a will has multiple individual gifts, such as, “$1000 each to A, B, and C, my brothers.“ How do you treat that?
These are not class gifts, they are three divisible gifts of $1000 to each brother.
If on an essay you are unsure for lapse whether it involves an individual or a class gift, what do you do?
Analyze under both. If one outcome is more likely, say that and spend more time on it, but still cover the other
What is the California lapse statute?
If a transferee fails to survive the transferor of an at death transfer, or until a future time stipulated in the instrument, he doesn’t take under the instrument. If it cannot be determined by clear and convincing evidence that the transferee survived until the time required in the instrument, he is deemed not to survive. If a transfer fails, the property is transferred like this:
- if the instrument provides for an alternative disposition on failure of a transfer, that is followed. If not…
– if the instrument provides a residue, the property becomes part of the residue. If not…
– if a transfer is itself a residuary gift, or the first two do not apply, the property is transferred to the decedent’s estate and distributed under intestate succession.
– Residuary Class Gift: if there is a residual gift to two or more people and the transferee’s share fails, and no alternative disposition is made, it is treated like a class gift (that share passes to the other residuary beneficiaries).
If the testator transfers “all of my estate”, what kind of gift is that?
Residuary gift
If a will says “$1000 to A, residuary to B, C, and D.“ If B dies, and the estate has $4000, what happens under the California lapse statute?
Because this is a residuary class gift, under the California lapse statute B’s 1/3 of the residuary goes back to the other members of his class [to C and D].
How is the California lapse statute different from the common law rule with regard to lapse?
California reverses the common law “no residue of a residue“
How are class gifts treated under lapse?
If a gift is made to a group, and one member of the group dies before the testator, his share is split amongst the other members.
If a will says “$10,000 to be shared by my brothers“ and one of the two brothers dies before the testator, what happens?
Under the lapse rules with regard to class gifts, the other brother takes the entire gift.
What is the essential feature of a class gift with regard to lapse?
All members share a common characteristic
Under common law, if a will says what to do if one of the beneficiaries dies before the testator, what happens?
That is followed.
If a will says “$10,000 to be shared by my brothers if they survive me, and if not, their share goes to D“ what happens?
If one of the three brothers dies first, his share goes to D
What is the difference between how the common law and the California lapse statute treat residuary class gifts?
– Common law “no residue of a residue“: if a residuary class gift fails, that portion goes intestate, and not back to the other residuary class members – California residuary class gift: if there is a residuary gift to two or more people, and a transferee's share fails, and no alternative disposition is made, it is treated like a class gift. That share passes to the other residuary beneficiaries.
What are anti-lapse statutes?
These avoid the default lapse rules, and they save the gifts for surviving heirs instead of putting it in the residuary or through intestate succession.
How many states have anti-lapse statutes?
Nearly all
If a will says “car to my brother A, $100 to B, and residue to C“ and A dies first, what happens?
- default: the car would fall to the residuary beneficiary C.
– anti-lapse: if A is survived by a child, and he lives, the child gets the car
What are the elements of anti-lapse statutes?
If a devisee predeceases the testator:
– and he is RELATED to the testator
– and SURVIVED by a descendant that also survives the testator
– the descendant is substituted for the pre-deceased devisee
What is the rationale behind anti-lapse?
Presumed intent. Sometimes the testator would rather that a substitute gift be given to the devisee’s descendants instead of passing under lapse rules.
If a will says “$10,000 to my brothers“ and the testator had three brothers, but one dies before the testator, what happens?
– default lapse rules: the deceased brother’s share would revert to the other two brothers
– anti-lapse: if that brother had a child, his child would take his portion
How does anti-lapse change if the jurisdiction follows the UPC?
- Anti-lapse applies to a devisee’s grandparents or the lineal descendants of grandparents or to the stepkids of the testator
– If there is a condition of survivorship like someone only takes “if he survives me,“ that is not enough to take away the gift if that person doesn’t survive the testator, so anti-lapse still gives the gift to that person’s lineal descendent
– does not protect a spouse’s blood as a protected transferee
How do California anti-lapse statutes work?
The devisee must be a protected transferee
What does it mean under California antilapse to be a “protected transferee“?
- someone that is the kindred of the testator. This means blood relatives such as: kids, parents, siblings, cousins, aunts, uncles, or
– kindred of the transferee’s surviving spouse, dead spouse, or former spouse: this means blood relatives of the spouse. - must have surviving issue to take in your place. This means direct lineal descendants
Can spouses claim under antilapse?
No
What is the major difference between California’s anti-lapse and the UPC anti-lapse?
The UPC does not allow for kindred of the transferor’s surviving spouse to be protected (but California does), and the UPC does allow grandparents and their descendants to take, while California does not.
Under the California anti-lapse statute, who is not included as surviving issue to take in your place?
Spouses, friends, parents, grandparents, etc.
If all of the elements of California anti-lapse statute are met, what happens?
If the devisee is a protected transferee and has issue to step into his shoes, the devise is saved for those issue and it doesn’t go to the residue or to intestacy.
What do you have to do under the California anti-lapse statute if there are surviving issue of unequal degree?
Apply the modern per stirpes distribution
If a will says, “$1000 to A [brother], residue to B.” If A dies before the testator, what happens?
Since he is kindred of the testator, under California anti-lapse, he is a protected transferee, so if he has a child, his child can take his share. But if he only has a wife, she is a protective transferee but not issue, so anti-lapse would not apply. Instead default were rules would apply and this gift would go to the residuary.
Under California anti-lapse statute, if the testator knew at the time that he made his will that someone he was devising property to in the will had already died, what happens?
That dead person is not a protected transferee so anti-lapse does not apply
If under California anti-lapse statutes the instrument provides that anti-lapse will not apply, what happens?
It does not apply.
Under California anti-lapse, if an instrument makes a substitute disposition, what happens?
That is followed
If a will says, “$10,000 to my surviving brothers“ what does that mean under California anti-lapse statutes if one brother dies before the testator?
There was expressed intent for anti-lapse not to apply. So instead the default rules for class gifts would apply and the other brothers would take his share.
***UPC: just using the words “if he survives me“ is not enough, so anti-lapse would still apply
