Also known as: lapse statute · lapse statutes · anti-lapse statute · anti-lapse statutes · antilapse statute · antilapse statutes · lapse doctrine · anti-lapse doctrine
Written by attorneys — see sources below.
A statutory rule of construction that prevents certain devises from lapsing by substituting the predeceased devisee's descendants as takers when the devisee is a protected relative who predeceases the testator.
Leonard Lowe executed a will leaving specialized manufacturing equipment to his brother Levi Lowe. Levi died before Leonard, survived by his adult son Lance Lee. The will contained no express alternative disposition directing the equipment elsewhere upon Levi's failure to survive. Lance claims the equipment as Levi's surviving descendant under the antilapse statute.
Lillian Locke left her restaurant recipes to her daughter Lena Lawson if Lena survived her, otherwise directing the gift into the residue. Lena died before Lillian, survived by her son Luna Lang. The will expressly routed any failure of the specific gift into the residue for Lillian's surviving children. Luna asserts a substitute claim under antilapse, but the residuary beneficiaries receive the recipes.
In November 1978, H. Everett Pope, Jr., was admitted to St. John Medical Center, a hospital in Tulsa, Oklahoma. On April 2, 1979, while still at the hospital, he died testate. His wife, appellee JoAnne Pope, initiated probate proceedings in the District Court of Tulsa County. The court entered an order setting a hearing, admitted the will to probate, and named appellee as executrix, issuing letters testamentary to her. Following her appointment, the court ordered appellee to immediately give notice to creditors. Appellee published notice in the Tulsa Daily Legal News for two consecutive weeks beginning July 17, 1979. The notice advised creditors that they must file any claim against the estate within two months of the first publication. Appellant Tulsa Professional Collection Services, Inc., a subsidiary of St. John Medical Center and the assignee of a claim for expenses connected with the decedent's hospital stay, did not file a claim with appellee within the two-month period. In October 1983, appellant filed an Application for Order Compelling Payment of Expenses of Last Illness in the District Court of Tulsa County. The district court denied the application. The Oklahoma Court of Appeals affirmed the district court's judgment. Appellant then sought rehearing, raising a due process challenge to the nonclaim statute's notice provisions for the first time. The Court of Appeals rejected the due process claim on the merits in a supplemental opinion. Appellant sought review in the Supreme Court of Oklahoma, which granted certiorari and affirmed the Court of Appeals' judgment. The United States Supreme Court noted probable jurisdiction and heard the case.
View caseAn antilapse statute creates a substitute gift when a protected relative predeceases the testator and leaves surviving descendants. The statute supplies those descendants as takers by representation unless the will expresses a contrary intent through an alternative devise.
Yes. A will that specifically provides that a nonresiduary devise passes under the residuary clause upon the devisee's failure to survive creates an alternative devise. That express direction controls and prevents the antilapse statute from substituting the devisee's descendants.
Modern antilapse statutes treat a predeceasing person as a class member if that person would have qualified under the class description had the person survived the testator. The statute then creates a substitute gift in that person's surviving descendants when the other statutory conditions are met.
Most antilapse statutes protect devises to grandparents and descendants of grandparents, and some also protect stepchildren. The protection does not extend to a spouse or to more remote relatives outside the statutory class.