will construction: death of beneficiary, lapsed and void devises Flashcards
what is a lapsed gift
when the intended beneficiary of a gift dies before the testator, the gift is said to have lapsed
what is the common law rule with lapsed gifts
it depends on what kind of devise/bequest it is (ie specific , general, residuary, demonstrative, or class )
what is a specific devise/bequest? under the common law what happens if the beneficiary dies before the testator (ie what is the effect of the lapse)
It is of a particular item, such as ‘my property at 123 Main street or ‘my car to x’
if lapse happens, the gift falls to the residuary estate
what is a general devise/bequest?under the common law what happens if the beneficiary dies before the testator (ie what is the effect of the lapse)
If the testator intends to confer a benefit out of the general property of the estate rather than to give a particular asset – ie a devise of 100k to A
the gift will fall to the residuary as a result of lapse
what is a residuary devise/bequest? under the common law what happens if the beneficiary dies before the testator (ie what is the effect of the lapse)
Conveys that portion of the testator’s estate not otherwise effectively devised by other parts of the will, such as a devise to A of ‘all the rest, residue, and remainder of my property and estate’
if its a complte lapse – gift falls to intestancy
if a partial lapse, depends on whether the no residute of the residue rule applies
what is a demonstrative bequest?under the common law what happens if the beneficiary dies before the testator (ie what is the effect of the lapse)
“$1,000 to x, payable from my account at ABC Bank
gift falls to residuary estate
what is a class gift? under the common law what happens if the beneficiary dies before the testator (ie what is the effect of the lapse)
“blackacre to my nephews”
Gift divided amongst surviving members of the class.
for a residsidary bequest, whats the difference between a partial and complete lapse
Complete lapse – ie all remaining residuary takers are dead
Partial lapse – x dies, y is still alive
if a residuary devise has a partial lapse, and the no residue of the residue rule applies, what happens? how do most jurisdictions apply this rule?
No residue of the residue rule: The part that the dead beneficiary would have gotten goes to intestacy
most jurisdictions: The surviving beneficiaries split it; if only one left, they get it all
estate of Russell (roxxy the dog case)
Decedent died testate leaving a validly executed holographic will written on a small card
“i leave everything I own real and personal to Chester H Quinn and Roxy Russell
‘my ten dollar gold piece and diamond I leave to Georgia Russell
Quinn was a close friend and companion of the decedent and had stood in relation of personal trust and confidence toward her
Roxy was her pet dog which was alive on the date of execution but died before the decedent
P is the decedent’s niece and her only heir at law
why are we studying this case? how does lapse apply?
This is a latent ambiguity
Roxxy is a dog
You cant give anything to a dog just like a dead beneficiary so this is why we are studying this case
Residuary bequest to roxxy and quinn in conjunction; So it’s a partial lapse – the jurisdiction follows the no residue of the residue rule so roxxy’s would fall to intestacy – ie going to her niece as her niece is her heir
in estate of russel, if the jurisdiction followed the common law rule of lapse without the no residue of the residue law, whats the outcome
If the common law rule of lapse in absence of no residue of residue law it would all go to quinn
when do we apply something other than the common lapse rules
If the testor tells us something differently (ie what to do if the beneficiary dies) we listen; those lapse statutes are just rules of construction
if the jurisdiction does not follow the no residue of the residue and their is a partial lapse on a residuary gift, what happens?
it would all go to the surviving beneficiary
what is the majority rule for words of surviviorship and anti lapse stattues
n express requirement of survivorship, such as “if he survives me,” evidences an intention that antilapse not apply and want to apply common law lapse
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
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
Why is it not enough here for this court?
They look at the other courts rulings
The words of survivorship are there but the court thinks they are BOLIERPLATE
