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Substantive_rules_of_wills - 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, gift is a nullity, not lapse. b. ANTI-LAPSE STATUTES: (NY EPTL § 303.3) i. In absence of contra intent in the instrument, beneficiary does not have to survive T if: 1. Beneficiaries are T’s lineal issue child, grandchild; brother or sisters 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. So the gift can go to wife or the children, so children take. 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. This is a manifestation that undercuts the statute so the dead bothers’ children don’t take. b. Hypo: I give to sisters A, B and C, share and share alike. A dies before T. State has anti-lapse statute. i. Court : This is not enough to negate the operation of the anti-lapse statute. The children of A, B and C take. 2. UPC §2-603 : 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. a. Columbo Case : Gift to A, B and C. Will says in the event of lapse, the gift will fall into the residue. i. Prevents anti-lapse statute b/c it gives an alternative taker. 1
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iv. HOW THE ANTI-LAPSE STATUTE WORKS: 1. Hypo : 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. C 1 2 3(d) 4(d) a b c 2. Will was executed before Sept 1, 1992: Distribution among descendants is based on PER STERPES basis: a. 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 i. 1: $25K ii. 2: $25K iii. a: $25K iv. b: $12.5K v. c: $12.5K 3. After Sept 1, 1992 : DISTRIBUTION BY REPRESENTATION a. First generation, 1 and 2 take half, and then all three children of 3 and 4 share the other half. i.
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Substantive_rules_of_wills - SUBSTANTIVE RULES OF WILLS I...

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