Wills, Trusts, and Estates
If members of the class die before the testator, that portion of the devise is divided among the remaining members.
At common law, a devise is implied to be conditional upon the devisee's surviving the testator unless specified otherwise.
Know the chart on page 373, which details the process to go through when a gift lapses to find who to distribute it to:
- A gift lapses.
- Does the antilapse statute apply?
- If so, distribute it to the devisee's descendants instead.
- Else, is the gift a class gift?
- If so, reallocate it among the other class members.
- Else, is the gift specific or general? (i.e., not residual)
If a devisee is already dead at the time the will is executed or if the devisee is an ineligible taker (often because he is a cat or dog), the devise is void. This is much more uncommon in the digital age.
Nearly all states have antilapse statutes that substitute other beneficiaries for predeceased devisees under certain circumstances. This is because it is presumed that testators would prefer a substitute gift to the devisee's descendants rather than for it to pass by intestacy.
Antilapse statutes only apply if the devisee has a close enough relationship to the testator, as specified by state statute. The UPC's version applies to grandparents and descendants thereof. UPC § 2-605.
Antilapse statutes can be avoided by specifying in the will what happens if the devisee does not survive the testator. If the will implies contrary intent (e.g., "to my living brothers, share and share alike"), the antilapse statute will also be avoided.
- However, generic "words of survivorship" are not enough of an indication of contrary intent to prevent application of antilapse statutes. UPC § 2-603.
Words of survivorship are generic, boilerplate phrases that claim to condition gifts upon people surviving the testator, such as "if he survives me" or "my surviving children."
Dean Todd recommends reading all 7,000 words of UPC § 2-603.
Under the newer intent theory of ademption, if a specifically devised is not in the testator's estate, the beneficiary is still entitled to a replacement or cash value of the item if he can show that this is what the testator would have wanted.
I.e., if one wills $50,000 to his son, then gives his son $30,000 before dying, his son will only get $20,000 from the will.