Substantive_rules_of_wills-2 - SUBSTANTIVE RULES OF WILLS I...

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SUBSTANTIVE RULES OF WILLS I. AFFECT OF DEATH OF BENEFICIARY BEFORE TESTATOR a. LAPSE: i. If a beneficiary under a will dies before T, gift is said to lapse and it fails. 1. Hypo : T leaves gift to A. A dies before T. a. CL: Gift lapses. 2. Hypo : T leaves gift to A for life then to B. A & B both survive T. a. CL: B does not have to survive A. B just has to survive T. ii. If beneficiary is dead at execution, the gift is a nullity, not a lapse. b. ANTI-LAPSE STATUTES: (NY EPTL § 3-3.3) i. 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: 1. Beneficiaries are T’s lineal issue child, grandchild; brother or sisters a. The living issue of the Beneficiaries will step in and take the share 2. (Spouse is not included) a. Jackson v. Schultz : T leaves RE in will “to wife and her heirs and assigns forever.” W dies before T. J has Anti-lapse statute. i. Anti-lapse statute is not applicable b/c it is a gift to wife. ii. 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 a Substitutional Gift to children, children take. 3. 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) a. SO the heirs are not taking by their parents (interim Bs) they are taking from the will it self. b. Thus when GGC dies if there is a gift over, he is cut out and not included in his estate i. Its not a gift if that Interim B can transmit b/c the kids are taking from the original T, c. Side Twist: 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? i. Probably not, court doesn’t dwell on this shows these phrase cause heard aches ii. 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). iii. WHAT IS CONTRA INTENT? 1. COMMON LAW: a. Allan v. Tolly : T left to “living”brothers and sister, A, B, C, D, E to share alike. 3 died before T. There is anti-lapse statute. i. Issue : Does “living” mean, living at T’s death, or living at the time the will is executed? ii. Court: Saying “living” means living at the date she dies , when a will comes to life 1. This is a manifestation that undercuts the statute so the dead bothers’ children don’t take. 2. Survive Language is enough to show contra intent, Anti-lapse statute would not apply 1
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b. Hypo: I give to sisters A, B and C, share and share alike. A dies before T. State has anti-lapse statute. i.
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This note was uploaded on 01/31/2010 for the course LAW TRUSTS & E taught by Professor Schwartz during the Spring '08 term at Yeshiva.

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Substantive_rules_of_wills-2 - SUBSTANTIVE RULES OF WILLS I...

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