Saturday, January 19, 2013

Anti-Lapse Statutes

The following question was asked by a reader of the blog:

"Common law follows the doctrine of lapse. Today, many states have implemented anti-lapse statutes. If, on the exam, there is no anti-lapse statute and there are no facts stating the jurisdiction follows the modern trend, we are to apply common law, correct? Thus, a gift made through a will would lapse in the absence of an anti-lapse statute."


Wills questions do appear to be popping up within the subject of Real Property with greater frequency. If the question does not state that an anti-lapse statute should be applied, then the correct analysis is to assume that there is no anti-lapse statute, and, as such, the gift will lapse. Oftentimes the question will not directly state that there is a statute, but, rather, the statute will be set forth within the question, and you'll need to interpret it as an anti-lapse statute. For that reason, it's worth taking some time to study this topic a bit, especially if it's not something you've reviewed for the state portion of the exam.

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