Also known as: anti-lapse statute · antilapse statutes · antilapse statute · anti-lapse laws
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that substitutes the surviving descendants of a predeceased relative beneficiary for that beneficiary in a will devise. The statute operates only when the predeceased beneficiary falls within the protected class of relatives and leaves descendants who survive the testator. The rule yields to an express contrary intention in the will.
Adam Anderson executed a will leaving his vacation cabin to his brother Aaron Adams. Aaron died two years before Adam, survived by his daughter Amelia Amari. At Adam's death Amelia claims the cabin under the antilapse statute. The statute treats Aaron as a protected relative who left a surviving descendant, so Amelia receives the cabin in Aaron's place rather than allowing the gift to pass under the residuary clause.
Alfred Ashford left his farm equipment to the children of his two sisters. One nephew died shortly before Alfred, survived by two children. The surviving niece and the nephew's two children each claim shares. The antilapse statute treats the deceased nephew as a class member who left surviving descendants, so his children take his share by representation while the niece takes her own share directly.
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Most statutes protect devises to grandparents and descendants of grandparents, and some also cover stepchildren. They do not protect devises to a spouse or to persons outside the specified family relationship.
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Modern statutes expressly apply to class gifts. A person who would have taken under the class gift had the person survived the testator is treated as a class member for purposes of creating a substitute gift to that person's surviving descendants.
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The statute yields to a contrary intention shown with reasonable certainty. Language that creates an express alternative devise, such as directing a lapsed gift into the residue upon the beneficiary's failure to survive, displaces the statutory substitute gift.
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The antilapse statute does not apply. The gift lapses and passes under the residuary clause or to the testator's heirs by intestacy.
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…Co. v. Treadwell , 312 Mass. 214, 218 (1942). Meserve v. Haak , 191 Mass. 220, 223 (1906). See G. L. c. 191, § 22 (1986 ed.) (antilapse statute). This last stated principle becomes important in deciding whether Jennifer, the child of the deceased grandson, takes her deceased father’s share in the trust income or whether the…