Also known as: anti-lapse statutes · antilapse statutes · anti lapse statute · anti-lapse statute
Written by attorneys — see sources below.
A statutory rule of construction that prevents certain devises from lapsing when a protected relative predeceases the testator. The statute substitutes the surviving descendants of the predeceased devisee as takers in place of the original beneficiary. The rule applies unless the will expresses a contrary intent.
Lydia devised the Greenway duplex to her nephew Mark. Mark died six months before Lydia and left two children who survived her. The jurisdiction's antilapse statute covers gifts to nephews. The children receive the duplex as substitute takers because the statute supplies them in place of Mark.
Percy devised forty percent of his construction firm to his brother Travis. Travis died two years before Percy and left three adult children including Truman. The will contained no survival condition or express direction routing lapsed gifts to the residuary beneficiary. Truman receives the interest because the antilapse statute creates a substitute gift in Travis's surviving descendants.
John N. Swanson executed his will on March 1, 1990. The residuary clause bequeathed one-half of the residue property to Hazel Brennan of Guilford, Connecticut, if she survives me. Brennan was Swanson's stepdaughter. Kathleen Smaldone, Brennan's child, was also named as a residuary legatee in the will. Brennan died on January 2, 2001. Swanson died seventeen days later. The will was admitted to probate on February 9, 2001. On April 26, 2002, the Probate Court concluded that the antilapse statute was not operative and that the bequest to Brennan lapsed, passing to the intestate estate. Fred Ruotolo and Charlene Ruotolo, beneficiaries under the will, filed a motion for appeal to the Superior Court from the Probate Court decision. Smaldone filed a cross appeal. Following a de novo hearing in the Superior Court, the court affirmed the judgment of the Probate Court. Smaldone appealed the Superior Court decision to the Appellate Court of Connecticut.
View caseA residuary clause does not automatically displace an antilapse statute. The statute yields only when the will expressly provides that a nonresiduary gift passes to the residue upon failure or lapse. General residuary language alone is insufficient to create an alternative devise that overrides the statutory substitute gift.
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Most antilapse statutes protect devises to grandparents and their descendants. Some statutes also cover stepchildren. The statute does not protect a testator's spouse or more remote relatives outside the specified class.
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The antilapse statute does not apply. The devise lapses and passes under the residuary clause or by intestacy according to the usual rules governing failed gifts.
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Courts require clear evidence of contrary intent from the will itself or admissible extrinsic evidence. General statements about family plans are usually insufficient to overcome the statutory default favoring the predeceased devisee's descendants.
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…the testator.” 1810 Md. Laws, ch. 34, § 4, quoted in E. Kimbrough, supra, 36 Wm. & Mary L. Rev. 274 n.35. : The antilapse statutes of sixteen states operate unconditionally. See Ala. Code § 43-8-224 (1991); Ga. Code Ann. § 53-4-64 (b) (1997) (“unless there appears a clear intent of the contrary” provision applicable…