Anti-Lapse Statutes

In the most recent post I outlined the concept of ademption, an area in the subject of Wills that is also seen on the MBE.  Another area that creeps its way onto the test is anti-lapse statutes. The concept is straightforward, but you should know it well:

As a review, ademption occurs when a testator leaves property to a beneficiary in a will but at the time that the testator dies that property is no longer in the estate. Situations will also arise when a testator leaves property to a beneficiary in the will and at the time that the testator dies the beneficiary is no longer alive.  How should this be addressed?

The general rule is that the gift lapses. But nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator. States vary but often the beneficiary will need to be a descendant of the testator, a grandparent of the testator, or a descendant of the testator's grandparents. In addition, it'll be necessary that the beneficiary leaves descendants who survive the testator.

For example, assume that the testator leaves property in his will to his grandfather. His grandfather is not alive when the testator dies and as per the general rule the gift left by the testator to his grandfather would lapse. But because the grandfather is in a degree of relationship often contemplated by anti-lapse statutes, instead of the gift lapsing the next step is to determine whether the grandfather has any living descendants. If so, then rather than the gift lapsing, the gift will pass to the grandfather's descendant(s).

Anti-lapse statutes apply unless there is a contrary provision in the will. In other words, if a testator states in a will that the gift should go to "x" only if "x" survives the testator, then any anti-lapse statute should be ignored. That gift will lapse if "x" is not alive when the testator dies.