SUBSTANTIVE RULES OF WILLS
I. 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, the gift is a nullity, not a lapse.
ANTI-LAPSE STATUTES: (NY EPTL § 3-3.3)
In absence of
contra manifestation of intent or a provision
in the instrument, beneficiary does not
have to survive T (gift does not lapse) if:
Beneficiaries are T’s lineal issue child, grandchild; brother or sisters
The living issue of the Beneficiaries will step in and take the share
(Spouse is not included)
Jackson v. Schultz
T leaves RE in will “to wife
her heirs and assigns forever.”
W dies before T.
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 not purchase, thus we can take as a.
So the gift can go to wife or as
to children, children take.
If a interim B is dead and a gift over provision like Schultz construe AND as an OR then the
interim B doesn’t have an right, and the gift would go to the heirs and a legal representative
(administrator of the estate)
SO the heirs are not taking by their parents (interim Bs) they are taking from the will
Thus when GGC dies if there is a gift over, he is cut out and not included in his estate
Its not a gift if that Interim B can transmit b/c the kids are taking from the
If the gift over says her “assigns forever” Does this mean that the
children’s mother could have given her interest in the will away while she was alive
or could she have disposed of it all by will?
Probably not, court doesn’t dwell on this shows these phrase cause heard
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 doesn’t).
WHAT IS CONTRA INTENT?
Allan v. Tolly
: T left to “living”brothers and sister, A, B, C, D, E to share alike.
died before T.
There is anti-lapse statute.
: Does “living” mean, living at T’s death, or living at the time the will is
“living” means living at the date she dies
, when a will
comes to life
This is a manifestation that undercuts the statute so the dead bothers’
children don’t take.
Survive Language is enough to show contra intent,
statute would not apply