LAPSE and ANTI LAPSE

Death of Beneficiary Before Death of Testator- If a devisee does not survive the testator, the devise lapses (that is, it fails)- All gifts made by a will are subject to a requirement that the devisee survive the testator,

UNLESS the testator specifies otherwise- In nearly all states, however, antilapse statutes antilapse statutes have been enacted that, under

specified circumstances, substitute another beneficiary for the predeceased devisee- Common law rules regarding lapsed devises:

o These are the default rules that apply if the will does not indicate what happens when a devisee predeceases the testator and the antilapse statute is not applicable

1. Specific or general devise- if a specific or general devise lapses, the devise falls into the residue

ex: T’s will devises her watch (a specific devise) to A, $10,000 (a general devise) to be and the rest of her estate (a residuary devise) to C. A and B predecease T. Under the common law lapse rule, the watch and $10,000 go to C.

2. Residuary devise- if the residuary devise lapses, the heirs of the testator take by intestacy. If only a share of the residue lapses, such as when one of two residuary devisees predeceases the testator, at common law the lapsed residuary share passes by intestacy to the testator’s heirs rather than to the remaining residuary devisees. This is called the NO-RESIDUE-OF-A-RESIDUE rule.

Ex: After making several specific and general devises to various persons, T devises the residue of her estate one-half to B and one-half to C. B predeceases T. B’s one half goes to T’s heirs by intestacy, NOT to C.

In most states this rule has been overturned by statute or judicial decision 3. Class gift- if a devise is to a class of persons, and one member of the class

predeceases the testator, the surviving member of the class divide the gift Ex: T devises $10,000 to the children of A (a class gift). One child of A,

named B, predeceases T. At T’s death, T is survived by another child of A, named C. Because this is a class gift, C takes B’s share, or the entire $10,000.

4. Where a devisee is already dead at the time the will is executed, or the devisee is a dog or cat or some other ineligible taker, the devise is void. The same default rules govern the disposition of a void devise as govern a lapsed devise.

Estate of Russell- Testatrix left all of her estate to her dog Roxy and to Chester Quinn and a necklace to her niece

Georgia Russell- The plaintiff here is Georgia Russell, the testatrix’s ONLY heir at law- she contends that the

devise to the dog is void and that she is entitled to ½ of the estate as the sole heir (because the void devise has lapsed, and at common law there is the no-residue-of-a-residue law so Chester shouldn’t be able to take all of the estate)

- The trial court found that Chester was to receive the entire estate except what was bequeathed to the plaintiff and that Chester was to care for the dog Roxyo They stated that the language in the will concerning the dog was precatory in nature only,

and merely indicative of the wish, desire and concern of Testatrix that Chester was to care for the dog after the Testatrix’s death. – the language was not meant as an outright gift

- The plaintiff appealed the trial court ruling- Extrinsic evidence of the circumstances under which a will is made may be considered by the

court in ascertaining what the testator meant by the words used in the will- If, however, in light of such extrinsic evidence, the provisions of the will are not reasonably

susceptible to two or more meanings, there is no uncertainty arising upon the face of the will and any proffered evidence attempting to show an intention different from that expressed by the words therein, giving them the only meaning to which they are reasonably susceptible is inadmissible

- The evidence given here was necessary to prove that Roxy was a dog, but, the court here determined that the surrounding circumstances do not show, as Chester Quinn argued, that the outright gift was really only to Chester Quinn and he was to take care of Roxy with some of that money

- Rule- a disposition in equal shares to two beneficiaries cannot be equated with a disposition of the whole to one of them who may use whatever portion thereof as might be necessary on behalf of the other- the extrinsic evidence offered to show such an intention should have been excluded by the trial court

- Therefore, this court concludes that testatrix intended to make a disposition of all of the residue of the estate to Quinn AND to the dog in equal shares; therefore as tenants in common

- As a dog cannot be the beneficiary under a will, the attempted gift to Roxy is void and the residue of the testatrix’ estate should be distributed in equal shares to Chester Quinn and Testatrix’ niece

Notes- A small minority of states still follow the no-residue-of-the-residue rule (they would follow

the holding above)- The vast majority of states that have rejected the rule, the assumption is that the testator would

probably prefer for the other residue beneficiary or beneficiaries to receive the entire residue. Consistent with this assumption, well drafted wills almost invariably reject the rule, reallocating the share of a predeceasing residuary beneficiary to the other residuary takers

- UPC and Restatement 3rd reject the no residue of the residue rule

Antilapse Statutes- These may be misnamed, because they do not prevent lapse; they merely substitute other

beneficiaries (usually descendants) for the dead beneficiary if certain requirements are met- A typical antilapse statute provides that if a devisee is of a specified relationship to the

testator and is survived by descendants who survive the testator, the descendants are substituted for the predeceased devisee

- Presumed Intent: The idea is that, for certain predeceasing devisees, the testator would prefer a substitute gift to the devisee’s descendants rather than for the gift to lapseo Ex: T devises her entire estate “one-half to her son A and one-half to her daughter B”

B predeceases T, leaving a child, C. At T’s death, what happens to B’s share?

1. At common law, B’s share would lapse and, being a residuary devise, would pass by intestacy, one-half to A and one-half to C- As a result, A would take ¾ and C would only take ¼ of the residuary devise

2. If a state as abrogated the no-residue-of-a-residue rule, B’s share would go to A, leaving A with the entire estate and A with nothing

3. By contrast, if an antilapse statute applies, C would take B’s share, leaving A with one-half and C with one-half

- Scope: An antilapse statute applies to a lapsed devise ONLY if the devisee bears the particular relationship to the testator specified in the statuteo The assumption is that the testator would prefer a substitute gift to the devisee’s descendants

instead of lapse only for certain types of deviseeso Some states apply antilapse only to descendants of the testatoro Others are broader, applying to descendants of the testator’s parents or grandparents, or to all

kindred of the testator, and occasionally to kindred of the testator’s spouse as wello UPC applies only to a devise to a grandparent or lineal descendant of a grandparent-

the 1990 UPC adds a devise to a step child- Default Rules- Because the antilapse statutes are designed to implement presumed intent, they

state default rules that yield to a contrary expression of the testator’s actual intento Ex: T devises her entire estate “one-half to her son A and one-half to her daughter B, but if A

or B or both do not survive me, then I give such predeceasing child’s share to my friend F” B predeceases T, leaving a child C At T’s death, T’s estate will pass one-half to A and one-half to F The antilapse statute does not apply to B’s share, because T has provided expressly

for the possibility of B predeceasing T In this case, the testator’s contrary intent is stated expressly and is confined by

the alternative devise to F When the will is not clear, however, the courts struggle with the question

whether it indicates that the testator has a contrary intentiono EX: T devises her entire estate to her “living brothers and sisters, A,B,C,D, and E, to share

and share alike” A,B, and C predecease T and all leave descendents. In Allen v. Talley, the court held that the will required survival of the beneficiaries

stated in the will and that antilapse did not apply- under that approach the only surviving siblings, D and E would take under the will

In Estate of Kuruzovich, the court held that share and share alike (without the term living) did not express a contrary intention and the antilapse statute applied

- Words of Survivorshipo UPC- words of survivorship, such as in a devise to an individual “If he survives me”, or in

a devise to “my surviving children” are not, in the absence of additional evidence, sufficient indication of an intent contrary to the application of this section (thus they are not sufficient to preclude the antilapse statute on their own) – their view is that a lawyer may have put these words here and still the better intent is that the descendants of the original devisee be cared for

o Majority of cases hold that the words above state an intent that the antilapse statute should NOT apply- their view is that they purposely substituted these words

Ruotolo v. TietjenAppellate Court of Connecticut, 2006

- Swanson executed a will leaving ½ of the residue to “Hazel Brennan of Guilford, Connecticut, if she survives me”

- The applicable antilapse statute in that state is as followso When a devisee or legatee, being a child, stepchild, grandchild, brother or sister of the

testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed

- Hazel Brennan’s daughter, Kathleen Smaldone, sought to take her mother’s share

- The lower court held that the testator’s use of the term “if she survives me” provided for the contingency that Brennan might not survive the testator, precluding application of the antilapse statute

- This court diagrees and reverses the judgment holding that the antilapse statute DOES apply and is NOT precluded

- All antilapse statutes provide that when a particular devisee predeceases the testator, the devise does not fall into the residue or pass to the testator’s heirs by intestacy, but rather descends to the issue of the predeceased devisee

- The appellees contend that the inclusion of words of survivorship in a will constitutes a provision for such contingency, thereby rendering the antilapse statute inapplicable

- The critical issue here is whether an intent contrary to the antilapse statute is manifested here- Antilapse statutes will apply unless testator’s intention to exclude its operation is shown with

reasonable certainty- Consequently, these statutes should be given the widest possible sphere of operation and should be defeated only when the trier of fact determines that the testator wanted to disinherit the line of descent headed by the deceased devisee (Restatement)

- Hence, the burden is on those who seek to deny the statutory protection rather than on those who assert it

- So here, the burden is not on Kathleen- In this case, the court has no decided on the issue so they look to what other courts have done

o Some courts have concluded that words of survivorship demonstrate sufficient contrary intent

o Others view that because such terms are boiler plate form-book language, the testator may not understand that such language could disinherit the line of descent headed by the deceased devisee and therefore they should not be sufficient on their own

- If the testator intended the bequest to lapse, the testator could have explicitly so provided- the testator also could have made an alternative devise, which indicates a contrary intent, and hence overrides an antilapse statute

- It is also unlikely that a testator would make a will if they intended their estate to pass through intestacy

- In Detzel v. Nieberding, the court stated that to render the statute inoperative, contrary intent of the testator must be plainly indicated and the only way to negate is to provide an alternative deviseeo The court here says that they do not agree with this, but this is more along their line of

thought than the words if he survives me automatically making the antilapse statute inoperative

o In some the court holds that they agree with the jurisdictions that have held that mere words of survivorship do not defeat antilapse statues- SO Kathleen can receive through the antilapse statute

Notes- Note that the court did NOT decide with the majority here but DID decide following the UPC- The Restatement 3rd rejects the no-residue-of-a-residue rule, and abrogating the rule would

be consistent with the presumption that a testator intends to avoid intestacy (The UPC does this too I believe (look above))

Words of Purchase, Words of Limitation, and the Meaning of “AND” versus “OR”- As a general rule, the phrase “to A” is read as words of purchase, indicating to whom the

property is devised (here, to A)- The phrase “and her heirs and assigns forever” is read as words of limitation, indicating what

interest in the property is devised (here, a fee simple)

- On the other hand, a devise by T to “A or her heirs” can be read to include ONLY words of PURCHASE, indicating that A is the primary devisee and that A’s heirs are the substitute takers if A predeceases T

- In few cases, courts have substituted the word or for and to provide for a substituted gift thereby avoiding lapse

Class Gifts- A class gift is treated differently from a gift to individuals- If a class member predeceases the testator, the surviving members of the class divide the total

gift, including the deceased member’s share- Thus, the crucial question is… what is a class? The test is often said to be whether the testator

was “group-minded”- the testator is thought to have been group minded if he used a label in describing the beneficiaries, such as “to A’s children” or “to my nephews and nieces” A gift to beneficiaries who form a natural class, but are described by their individual names, may be deemed a class gift if the courts decide, after admitting extrinsic evidence, that the testator would want the survivors to divide the property rather than for a predeceasing beneficiary’s share to lapse

- Restatement 3rd- A class gift is a disposition to beneficiaries who are described by a group label and are intended to take as a groupo If the terms of the disposition identify the beneficiaries only by name, without any reference

to a group label, the disposition does not create a class gift, but is to the beneficiaries taking as individuals

o If the terms of the disposition identify the beneficiaries 1. By group label and 2. Either by name or by the number of beneficiaries who then fit the group label, the

disposition is presumed not to create a class gift, but is to the beneficiaries taking as individuals

Notes and Questions on Class Gifts- Rules-based approach to discerning whether the testator was group-minded- under this

approach, a group label and dynamic shares indicate a class gift- naming individuals and specifying their shares, as in Dawson, indicates that the testator was NOT group-minded

- In Sullivan v. Sullivan- the testator devised her property to my nephews (and then named them) and to my niece (and then named her)- But she omitted the mention of 2 nieces from whom she was estranged

- One mentioned nephew predeceased the testator without descendants- to avoid lapse, the court held that the devise was to a class and that the property was to be divided equally between the survivors.

- Restatement 3rd- establishes a presumption that if the testator identifies the beneficiaries by group label and by name, the testator was NOT group-minded, but the presumption may be rebutted if the circumstances indicate that the transferor intended the beneficiaries to take as a group

Application of Antilapse Statutes to Class Gifts- Almost all states apply their antilapse statutes to class gifts to a single generation class, such as

“children” or “siblings”, and most statutes so provide- In states where the statute is unclear, courts reason that the antilapse statutes are designed to

carry out the average testator’s intent and that the average testator would prefer for the

deceased beneficiary’s share to go to the beneficiary’s descendents rather than to the surviving members of the class

- However, in some states, antilapse statutes do not apply to dispositions to class members who die before execution of the will- In theses states it is assumed that the testator did not have the dead class member in mind and did not want him to takeo Ex: T, a widow, dies leaving a will that devises Blackacre “to my sisters” and devising her

residuary estate to her stepson S. When T executed her will, T had two sisters living, A and B. One sister, C, died before the will was executed, leaving children who survived T. A died during T’s lifetime leaving two children. T is survived by B, A’s children, C’s children, and S. Who takes Blackacre?

Assuming that the antilapse statute applies to devises to sisters, in MOST states B takes a 1/3 share, A’s children take a 1/3 share, and C’s children take a 1/3 share

In a MINORITY of states, C’s children do NOT share because C was dead when the will was executed, and Blackacre goes ½ to B and ½ to A’s children

If the antilapse statute did not apply to class gifts, B, as the sole surviving member of the class, would take Blackacre

CLASS NOTES

What happens when you draft a will and it is executed, but one of your devisees dies before you?- Common law rule- absent an antilapse statute, the person doesn’t get it and their children do not get it

o If it was a specific bequest (“my” fossil watch) This goes to the residuary beneficiary

o General bequest (99 percent of the time is just cash- $10,000- could also be 100 shares of IBM stock)

This also goes to the residuary beneficiaryo Residuary bequest- everything else

Falls to intestacy No residue of a residue rule

Say everything is split between A and B from C and A predeceases C- A’s stuff still passes through intestacy under the no residue of a residue rule (this is only a minority of states today)

Estate of Russell- She left her residue to Chester Quinn and to Roxy (a dog)- this was a residuary clause- The other bequest was specific- a watch to - Under the common law- void devise is a devisee is already dead at the time or is some other ineligible

takero The dog is a void devisee and an ineligible taker

- The two options for where Roxy’s share will goo Either to Chester- the residuaryo Or through intestacy to the niece

- Since there was no ambiguity on its face, it is a latent ambiguity- therefore they are allowed to have extrinsic evidence- for a patent ambiguity you cannot use extrinsic evidence

- The lower court gave Roxy’s share to Chester- This court reversed and gave to the niece through intestacy

o At this time California did have the nor residue of the residue rule, but it was not argued in this case- this was probably a lapse in the argument of the lawyer

o The UPC does not have a no residue of the residue rule o The restatement does not either

Antilapse Statutes- these do not only apply to the residuary estate- these apply to anything- First issue with this is that it does not prevent lapsing, all it does is redirect to other descendents- Second it is premised on presumed intent- what we as a society presume the testator would have wanted

if something lapsed- Step one for an antilapse statute to apply- Scope- you have to have a certain relationship in order for the

antilapse statute to apply o Some say the predeceased (or the person who was going to get something) must be a descendant

of grandparent of the testator (UPC says this)o Some say the predeceased must be a descendant of the testator

- Step number 2 in the antilapse statute is that whoever the person is that is going to take, they need to have a descendent (child) of some type- if they don’t have a descendent, then the anti lapse statute will not apply (again, why do we limit this only to lineal descendents?)

o Only some statutes include stepchildren- not all do- UPC and Restatement- mere words of if he survives me are not enough to get out of the antilapse statute- Under the majority rule, if you have these words then it does negate the antilapse statute

Ruotolo v. Tietjen- Will- devises ½ to stepchild Hazel and ½ to 4 others- Stepchild Hazel dies before testator John of the will- Stepchild’s daughter Kathleen wants to collect under the antilapse statute- Connecticut is one of those states that still follows the no residue of a residue rule

o The first question is scope- Are John and Hazel related enough- Under Connecticut law they are related enough (even though this is the minority rule that the stepchild counts as a relationship for application of the antilapse rule)

o Does Hazel have descendents? Yes, Kathleen- Big question: does the language “if she survives me” warrant a lapse therefore making the bequest go to

intestacy, or is it not enough to preclude the antilapse statute therefore giving the bequest to the daughter of Hazel

- The UPC would allow the application of the antilapse rule saying that the application of that phrase is not enough to override the antilapse statute- so Daughter of Hazel takes

- The majority of states would allow this language to overcome the antilapse statute, therefore invoking the bequest to go to intestacy

The answer to all of this is to draft properly- A good lawyer does not depend on the presumption- they draft to avoid this problem

There is an implied survivorship feature in a class gift- There are two ways you can go about describing a class

o To my children (this one is more likely to be regarded as a class gift

o To A, B, C (naming people individually- this is more than likely not going to be considered a class)

- The UPC rule applies to antilapse rule before gift