III. Satisfaction of Legacies
IV. Abatement of Legacies
V. Exoneration of Liens
SUBSTANTIVE RULES OF WILLS
AFFECT OF DEATH OF BENEFICIARY BEFORE TESTATOR
If a beneficiary under a will dies before T, gift is said to
and it fails.
T leaves gift to A.
A dies before T.
CL: Gift lapses.
T leaves gift to A for life then to B.
A & B both survive T.
CL: B does not have to survive A.
B just has to survive T.
If beneficiary is dead at execution, gift is a nullity, not lapse.
ANTI-LAPSE STATUTES: (NY EPTL § 303.3)
In absence of contra intent
in the instrument, beneficiary does not have to survive T if:
Beneficiaries are T’s lineal issue child, grandchild; brother or sisters
(Spouse is not included)
Jackson v. Schultz
T leaves RE in will “to wife
her heirs and assigns forever.” W dies
J has Anti-lapse statute.
Anti-lapse statute is not applicable b/c it is a gift to wife.
But, court interprets “and” as “or”, so the “heirs and assigns” are words of limitation
So the gift can go to wife or the children, so children take.
If donee is dead when the gift is executed, the statute can save it as well (unless it it is a class gift, then it
WHAT IS CONTRA INTENT?
Allan v. Tolly
: T left to “living” brothers and sister, A, B, C, D, E to share alike.
3 died before
There is anti-lapse statute.
: Does “living” mean, living at T’s death, or living at the time the will is
Saying “living” means living at the date she dies.
This is a manifestation
that undercuts the statute so the dead bothers’ children don’t take.
I give to sisters A, B and C, share and share alike.
A dies before T.
State has anti-lapse
: This is not enough to negate the operation of the anti-lapse statute.
children of A, B and C take.
: The word “surviving” by itself does not prevent the anti-lapse statute – an alternative
taker has to be presented to negate A’s descendant to take.
Gift to A, B and C. Will says in the event of lapse, the gift will fall into the
Prevents anti-lapse statute b/c it gives an alternative taker.
HOW THE ANTI-LAPSE STATUTE WORKS:
: T says I give $100K to my child.
C dies before T.
C leaves 3 children surviving.
C has 4
children (1,2,3,4), 2 are dead (3,4).
3 has child a, and 4 and children b and c.
Will was executed before Sept 1, 1992:
Distribution among descendants is based on PER STERPES
First look at first row, and see how many children C had: so 1 and 2 take half.
3’s child gets
3’s share 4’s children share 4’s share