Presumed Intent and Lapse Flashcards
In 1977 while attending the old Daytona Speedway Emma executed a will which gave two personal bank accounts to Fred. In 1978 they married but never discussed marriage before the will. In 1979 Emma had a stroke and was declared to be incapacitated. Fred became her guardian. Before that she had closed one of the bank accounts. Later, as guardian, Fred closed the other account and put it in a guardianship account.
On January 7, 1979, Emma died and Fred had spent all of the funds in the account for her care. Her will left $2,000,000 to the Foundation for the Preservation of the Pier at Daytona Beach. Is Fred a pretermitted spouse?
Fred was deemed a pretermitted spouse and he gets his intestate share.
Spouse has “not been provided for in a will” unless the testator both:
1) Provided for the person named in the Will prior to marriage; and
2) made such provision in contemplation of marriage to that person.
Henry’s will provided: “I devise all of my assets to my wife, Wanda.” Henry and Wanda divorced two years after Henry executed his will. Henry died a year after the divorce, without changing or revoking his will. He was survived by his ex-wife Wanda, by Cathy (Wanda’s daughter from a previous marriage), and by his brother, Bill. Who receives Henry’s assets?
Because Wanda was the only devisee and the divorce voided the devise to her under Fla. Stat. § 732.507(2), Henry’s assets pass through intestacy to his heirs. Wanda is treated as having predeceased Henry. Bill receives Henry’s estate as Henry’s sole heir.
Henry’s will provided: “I devise all my of my assets to my wife, Wanda, but if she does not survive me, then to my step-daughter, Cathy.” Henry and Wanda divorced two years after Henry executed his will. Henry died a year after the divorce, without changing or revoking his will. He was survived by his ex-wife Wanda, by Cathy (Wanda’s daughter from a previous marriage), and by his brother, Bill. Who receives Henry’s assets?
Because, under Fla. Stat. § 732.507(2), the divorce voided the devise to Wanda
and treats her as having predeceased Henry, Henry’s assets are distributed to Cathy. Only the spouse is affected by divorce—not the spouse’s family.
Henry’s will provided: “I devise all of my assets to my wife, Wanda.” Henry and Wanda divorced two years after Henry executed his will. Henry died a year after the divorce, without changing or revoking his will. He was survived by his ex-wife Wanda, by Cathy (Wanda’s daughter from a previous marriage whom he adopted prior to death), and by his brother, Bill. Who receives Henry’s assets?
Because Wanda was the only devisee and the divorce voided the devise to her under Fla. Stat. § 732.507(2), Henry’s assets pass through intestacy to his heirs. Wanda is treated as having predeceased Henry. Cathy receives Henry’s estate as Henry’s sole heir. It does not matter when the adoption occurred. If Cathy were adopted after execution of the will, she would receive the entire estate as her pretermitted share.
“I leave my residuary estate to my sister Mary, but if she fails to survive me then to my friend Tom.” What happens if the Mary predeceases the decedent?
If Mary does not survive me, it goes to the alternative taker Tom, the anti-lapse statute would not apply.
“I leave my residuary estate to my sister Mary, if she survives me.” Does anti-lapse apply?
The survivorship language alone is deemed contrary language sufficient to block FL’s anti-lapse statute.
“I leave $10,000 to my sister, Ruth” What happens if Ruth predeceases me? Does the gift lapse?
First, there is no contrary language in the will for alternate taker. So it would lapse, but for the fact that Ruth is a descendant of my grandparent, and bc she predeceased me, the anti-lapse statute applies. The descendants of the devisee take per stirpes in place of the deceased devisee. However, If the deceased devisee leaves no descendants then the devise would lapse.
“To my Brothers, Randy & Rick.” What happens if he later has more brothers?
Specificity rules generally - not a class gift, bc beneficiaries are named, so it will go to Randy and Rock, unless other language indicates class gift
“To my sisters alive at the time of my death” Does this establish a class?
The time establishes the class
“I leave my estate to my nephews, TJ and Max” Is this a class gift or a gift to my nephews, TJ and Max?
Under Davis v. Arkenberg, these are individual gifts, rather than a class
A testator’s will leaves his residuary estate to his sister, Mary. The will contains a provision stating “I hereby expressly do not leave anything to Mary’s son, John” If Mary predeceases the testator, would anti lapse apply and substitute John for Mary?
A statement in a will expressing a testator’s intent not to provide for a person does not preclude that person from taking under the anti-lapse statute. To block that person’s inheritance, the testator must name an alternate taker or otherwise show intent that the anti-lapse statute does not apply.
Tad died owning Blackacre, Greenacre, Redacre, and $500,000 in cash. His will contained the following provisions:
- Blackacre to my only brother Bill.
- Greenacre to my nephews Jack and Ken.
- Redacre to my friend Clark.
- One-half of the residue of my estate to my grandchildren and the other one-half to my stepchildren.
Who receives each item of property if Tad was survived only by his brother Bill, Bill’s children (Jack and Ken), Clark’s child Cal, two grandchildren (Dora and Ed), and two stepchildren (Pam and Sam)?
- Because Bill survived Tad, Bill will receive the devise of Blackacre.
- Because Jack and Ken survived Tad, they will receive the devise of Greenacre.
- However, because Clark predeceased Tad and because Clark is not Tad’s grandparent or a descendant of Tad’s grandparent, the antilapse statute does not apply. Therefore, the devise to Clark (Redacre) lapses and passes to the residue.
- Because Tad is survived by two grandchildren (none of whom predeceased Tad) and by two stepchildren, the class gift of one-half of the residue to the grandchildren will go to the two grandchildren and the other one-half to the two stepchildren. The two grandchildren will receive $250,000 plus one-half of Redacre and the two stepchildren will also receive $250,000 plus one-half of Redacre.
Tad died owning Blackacre, Greenacre, Redacre, and $500,000 in cash. His will contained the following provisions:
- Blackacre to my only brother Bill.
- Greenacre to my nephews Jack and Ken.
- Redacre to my friend Clark.
- One-half of the residue of my estate to my grandchildren and the other one-half to my stepchildren.
Who receives each item of property if Tad was survived only Bill’s children (Jack and Ken), Clark’s child Cal, two grandchildren (Dora and Ed), and two stepchildren (Pam and Sam)? Bill died before Tad.
Because Bill predeceased Tad, the devise to Bill would be “saved” by the antilapse statute. Bill is Tad’s brother and, thus, is a descendant of Tad’s grandparent. Bill’s surviving descendants, Jack and Ken, would receive the devise to Bill (Blackacre) in his place. The will does not show any contrary intent.
Tad died owning Blackacre, Greenacre, Redacre, and $500,000 in cash. His will contained the following provisions:
- Blackacre to my only brother Bill.
- Greenacre to my nephews Jack and Ken.
- Redacre to my friend Clark.
- One-half of the residue of my estate to my grandchildren and the other one-half to my stepchildren.
Who receives each item of property if Tad was survived only by his brother Bill, Bill’s child (Ken), Clark’s child Cal, two grandchildren (Dora and Ed), and two stepchildren (Pam and Sam)? Jack died before Tad but was survived by two children?
Because Jack predeceased Tad, the devise to Jack would be “saved” by the antilapse statute. Jack is Tad’s nephew and, thus, is a descendant of Tad’s grandparent. Jack’s surviving descendants, his two children, would receive the devise to Jack (1/2 share in Greenacre) in his place. Even if the devise to “my nephews Jack and Ken” were deemed to be a class gift to his nephews, the antilapse statute applies to class gifts. The will does not show any contrary intent.
Tad died owning Blackacre, Greenacre, Redacre, and $500,000 in cash. His will contained the following provisions:
- Blackacre to my only brother Bill.
- Greenacre to my nephews Jack and Ken.
- Redacre to my friend Clark.
- One-half of the residue of my estate to my grandchildren and the other one-half to my stepchildren.
Who receives each item of property if Tad was survived only by his brother Bill, Bill’s child (Jack), Clark’s child Cal, two grandchildren (Dora and Ed), and two stepchildren (Pam and Sam)? Ken died before Tad leaving no descendants.
Because Ken predeceased Tad, the devise to Ken would generally be “saved” by the antilapse statute. Ken is Tad’s nephew and, thus, is a descendant of Tad’s grandparent. However, Ken died without descendants. Therefore, his devise lapses and becomes part of the residue. If the devise to “my nephews Jack and Ken” were deemed to be a class gift to his nephews, then Jack would take as the surviving class member.
