Implied condition of law that beneficiary is living at time of execution of will.
If beneficiary is dead at time of execution, he cannot recover – null and void
If devisee does not survive T, devise lapses (i.e. failed)
All gifts made by will are subject to requirement that devisee survive T, unless otherwise provided
Specific or general devise
: If either lapse, devise falls into residue
EXAMPLE: T’s will bequeaths watch to A (specific bequest) and 1K to B (general bequest).
Residuary devise is C.
A and B predecease T.
Watch and 1 K to C.
: If devise of residue lapses, predeceases T, then heirs of T take by intestacy.
of residue lapses, this share passed by intestacy, does not go to other residuary devisees.
of a Residue Rule)
EXAMPLE: T devises residue of estate ½ to B and ½ to C.
B predeceases T.
B’s ½ share goes to
T’s heirs, not to C.
Problem of Lapse
Implied condition by operation of law that B survive T.
EXAMPLE: T says, “I give all my real estate to X.” X dies before T.
Gift to X lapsed.
EXAMPLE: “I give half my residue to X and balance to Y.”
Since gift to X, if it fails, that passes by intestacy
More modern approach (Statutory Approach) – Can have a residue w/in residue so total
residue passes to Y
Anti-lapse statutes operate on condition of manifest intent and saves gifts that would otherwise lapse
Misnomer: Do not prevent lapse; merely
substitute other beneficiaries
(usually issue) for dead
beneficiary if certain requirements met
If devisee is not of a specified relationship to T and is survived by issue, who survive T, issue are
substituted for predeceased devisee.
An anti lapse statute applies to lapsed devise ONLY if devisee bears particular relationship to T
specified in statute
Default rule – applies unless T says otherwise.
If T says statute does not apply, and does not include
alternative gift, then common law default rules apply
If devise is to a class of persons, and one member predeceases T, surviving members of class divide
What is a class?
T is group-minded – uses class label to describe beneficiaries (i.e. to A’s children or to my nieces)
Label is not necessary – Bs described by individual names, but form natural class, can be deemed class
if T’s intention
Must determine whether class was intended – Did T intend legal effects of class gift
Can have a member of group that does not have common ancestor (i.e. I give property to A and
children of B)
Brothers and Sisters.
B1 dies before T, but leaves issue surviving.
Will B’s share be
passed over to his issue?
Yes, in absence of contrary intent, it will pass to B’s issue.