will construction: anti lapse statutes

Question 1

what are anti lapse statues

Answer 1

They do not prevent a lapse; they substitute other beneficiaries, usually the dead beneficiary’s descendants

A typical anti lapse statute provides that if a predeceased devisee is related to the testator in a prescribed way and is survived by one or more descendants who also survive the testator, those descendants are substituted for the predeceased devisee

Question 2

what is the theory behind anti lapse statutes

Answer 2

The theory behind the anti lapse statutes is one of presumed intent

The testator would prefer a substitute gift to the devisee’s descendants rather than for the gift to pass in accordance with the common law of lapse

Question 3

what is the scope of anti lapse statutes (ie what does it cover)

Answer 3

An anti lapse statute applies to a lapsed devise ONLY if the devisee bears the particular relationship to the testator specified in the statute

Question 4

anti lapse statutes are default rules – what does this mean

Answer 4

Because the anti lapse statutes are made to implement presumed intent, they prescribe default rules that YIELD to an expression of the testator’s actual intent that is contrary to the statute

Question 5

many cases say that words of survviorship (If he survives me) precludes the antilapse statues from applying – what is the upc stance on this

Answer 5

the words of survivorship, such as in a devise to an individual ‘if he survives me’ are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section

they reason that its merley boilerplate lang, and absence other evidence, it doesnt meant that they didnt want antilaspse to apply

Question 6

what kind of relationhsip will always fall under antilapse statutes? which ones dont

Answer 6

direct lineal relationships always apply

spouses are not the type of relationship that will trigger this stattue

Question 7

when figuring out how to distribute the gifts in laspse, which rep theory do you use

Answer 7

per captia at each gen

Question 8

ruotolo
The testator executed a will leave half of the residue of his estate to hazel “if she survives me”
Hazel died 17 days before the testator

The trial court held that the testator’s use of the term ‘if she survives me’ provide for the contingency that hazel might not survive the testator, precluding the application of the anti lapse statue

Answer 8

The words of survivorship alone do not constitute a provision in the will for the contingency of the death of a beneficiary

This court says the lang is not sufficient
Even though they did not adopt the UPC rule a court might still come to the conclusion on its own that its insufficient

Question 9

do the flow chart on page 382 for lapsed devises