Validity of Wills-- Death of Beneficiary During Testator's Lifetime

Question 1

Rule of thumb:

Answer 1

a testator cannot make a gift to a deceased person

Question 2

B. Anti-lapse statute

Answer 2

1. General rule: if a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses (fails) UNLESS the gift is saved by the state’s anti-lapse statute. (or does not fail)
2. NY ANTI-LAPSE: the gift does not lapse but vests in the deceased beneficiary’s issue IF BOTH of the following conditions are satisfied:
   a. The pre-deceased beneficiary was T’s issue, brother or sister AND
   b. The pre-deceased beneficiary leaves issue who survive the testator

Question 3

3. DISCLAIMER REVISTED

Answer 3

under intestate rules, A disclaimant is considered to have predeceased the decedent. Similarly under testate rules, a disclaimant is considered to have pre-deceased the testator.

Question 4

4. DEATH OF ADOPTED OUT CHILD

Answer 4

an anti-lapse statute can save the testator’s devise if the adopted out child is specifically named in the will

Question 5

C. LAPSE IN RESIDUARY GIFT

Answer 5

C. LAPSE IN RESIDUARY GIFT

1. Absent contrary provision in the Will, the testator’s residuary estate is:
   a. Devised to two or more persons; AND
   b. the gift to one of them fails or lapses for any reason; AND
   c. the anti-lapse statute does not apply—
   d. THEN: the other residuary beneficiaries take the entire residuary estate in proportion to their interests
2. RULE OF THUMB: anti-lapse trumps the surviving residuary beneficiary’s rule

Question 6

IV. CLASS GIFTS

Answer 6

A.	RULE: if a Will makes a gift to a group of persons described as a generic class (e.g. children, siblings) and some members of the class predecease the testator, the class members who survive the testator take in equal shares.
B.	RATIONALE: this is a rule of construction based on presumed intent. Since the testator was “group minded” in making he gift, he wanted the class of persons (and no one else) to take in equal shares.
C.	Members of a class are those who are alive at T’s death
D.	When T names beneficiaries individually, not as a class—the gift will lapse and go to the residuary, instead of going to the others because they are individually named
E.	Class gifts including “adopted out” children—these children do not take as a beneficiary of a class gift made in the Will of a member of the child’s birth family, UNLESS the child is “adopted out by a member of the birth family”

Question 7

The Rule of Convenience

Answer 7

1. Later-born class members—members born after the testator dies
2. RULE: the class closes at the time a distribution to the class must be made. Later born class members are excluded from taking as members of the class
3. Exception—later born members are not excluded if gestation rule applies

G. When the class closes:

1. outright gift by will, class closes on testator’s death
2. a life estate or an income interest with a remainder to a “class of beneficiaries”
   a. the class closes at the death of a life tenant, or of an income beneficiary