Pg 18

Question 1

If a will has multiple individual gifts, such as, “$1000 each to A, B, and C, my brothers.“ How do you treat that?

Answer 1

These are not class gifts, they are three divisible gifts of $1000 to each brother.

Question 2

If on an essay you are unsure for lapse whether it involves an individual or a class gift, what do you do?

Answer 2

Analyze under both. If one outcome is more likely, say that and spend more time on it, but still cover the other

Question 3

What is the California lapse statute?

Answer 3

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).

Question 4

If the testator transfers “all of my estate”, what kind of gift is that?

Answer 4

Residuary gift

Question 5

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?

Answer 5

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].

Question 6

How is the California lapse statute different from the common law rule with regard to lapse?

Answer 6

California reverses the common law “no residue of a residue“

Question 7

How are class gifts treated under lapse?

Answer 7

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.

Question 8

If a will says “$10,000 to be shared by my brothers“ and one of the two brothers dies before the testator, what happens?

Answer 8

Under the lapse rules with regard to class gifts, the other brother takes the entire gift.

Question 9

What is the essential feature of a class gift with regard to lapse?

Answer 9

All members share a common characteristic

Question 10

Under common law, if a will says what to do if one of the beneficiaries dies before the testator, what happens?

Answer 10

That is followed.

Question 11

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?

Answer 11

If one of the three brothers dies first, his share goes to D

Question 12

What is the difference between how the common law and the California lapse statute treat residuary class gifts?

Answer 12

– 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.

Question 13

What are anti-lapse statutes?

Answer 13

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.

Question 14

How many states have anti-lapse statutes?

Answer 14

Nearly all

Question 15

If a will says “car to my brother A, $100 to B, and residue to C“ and A dies first, what happens?

Answer 15

• 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

Question 16

What are the elements of anti-lapse statutes?

Answer 16

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

Question 17

What is the rationale behind anti-lapse?

Answer 17

Presumed intent. Sometimes the testator would rather that a substitute gift be given to the devisee’s descendants instead of passing under lapse rules.

Question 18

If a will says “$10,000 to my brothers“ and the testator had three brothers, but one dies before the testator, what happens?

Answer 18

– 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

Question 19

How does anti-lapse change if the jurisdiction follows the UPC?

Answer 19

• 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

Question 20

How do California anti-lapse statutes work?

Answer 20

The devisee must be a protected transferee

Question 21

What does it mean under California antilapse to be a “protected transferee“?

Answer 21

• 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

Question 22

Can spouses claim under antilapse?

Answer 22

No

Question 23

What is the major difference between California’s anti-lapse and the UPC anti-lapse?

Answer 23

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.

Question 24

Under the California anti-lapse statute, who is not included as surviving issue to take in your place?

Answer 24

Spouses, friends, parents, grandparents, etc.

Question 25

If all of the elements of California anti-lapse statute are met, what happens?

Answer 25

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.

Question 26

What do you have to do under the California anti-lapse statute if there are surviving issue of unequal degree?

Answer 26

Apply the modern per stirpes distribution

Question 27

If a will says, “$1000 to A [brother], residue to B.” If A dies before the testator, what happens?

Answer 27

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.

Question 28

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?

Answer 28

That dead person is not a protected transferee so anti-lapse does not apply

Question 29

If under California anti-lapse statutes the instrument provides that anti-lapse will not apply, what happens?

Answer 29

It does not apply.

Question 30

Under California anti-lapse, if an instrument makes a substitute disposition, what happens?

Answer 30

That is followed

Question 31

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?

Answer 31

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