******III. BENEFICIARY DIES DURING TESTATOR'S LIFETIME LAPSED GIFTS Flashcards
A. THE TEXAS ANTI-LAPSE STATUTE
10. [Every other bar exam!] Tim executed a will that devised Blackacre (his separate property) to his son Sam and $25,000 to his father’s brother, Uncle Joe. The will devised the rest of Tim’s estate to his wife Wanda. Sam predeceased his father leaving a child (Junior) who survived Tim; Sam left a will that devised “all my property” to his wife Sandy. Uncle Joe predeceased Tim leaving a daughter (Judy) who survived Tim. Who takes Blackacre? The $25,000?
When a will beneficiary predeceases the testator, the gift?
anti-lapse only apply when?
-the gift lapses, Unless the gift is saved by the state’s anti-lapse statute
-The Texas anti-lapse statute applies only when the predeceasing beneficiary was: descendant of testator’s parent
[child, grandchild, brother, sister, nephew, niece]
AND left descendants who survive the testator by 120 hours
Therefore [July 1997, Feb. 1998] Blackacre, devised to son Sam, passes to: junior under the anti-lapse statute
anti-lapse doesnt apply, he is brother not descendant of T’s parent but a brother of testator’s parent
- **A. THE TEXAS ANTI-LAPSE STATUTE
10. [Every other bar exam!] Tim executed a will that devised Blackacre (his separate property) to his son Sam and $25,000 to his father’s brother, Uncle Joe. The will devised the rest of Tim’s estate to his wife Wanda. Sam predeceased his father leaving a child (Junior) who survived Tim; Sam left a will that devised “all my property” to his wife Sandy. Uncle Joe predeceased Tim leaving a daughter (Judy) who survived Tim. Who takes Blackacre? The $25,000?
[July 1999] But what about Sam’s will that devised “all my property” to Sandy??? Doesn’t the anti-lapse statute save the gift for the predeceasing beneficiary’s estate???
Therefore [July 1997, Feb. 1998] Blackacre, devised to son Sam, passes to: junior under the anti-lapse statute
anti-lapse doesnt apply, he is brother not descendant of T’s parent but a brother of testator’s parent
no; Sam’s will has nothing to do with this case, the statute named his descendants who survived as receiver
A. THE TEXAS ANTI-LAPSE STATUTE
10. [Every other bar exam!] Tim executed a will that devised Blackacre (his separate property) to his son Sam and $25,000 to his father’s brother, Uncle Joe. The will devised the rest of Tim’s estate to his wife Wanda. Sam predeceased his father leaving a child (Junior) who survived Tim; Sam left a will that devised “all my property” to his wife Sandy. Uncle Joe predeceased Tim leaving a daughter (Judy) who survived Tim. Who takes Blackacre? The $25,000?
[Feb. 1996, July 1997] What if Sam was not survived by any descendants (meaning that the anti-lapse statute doesn’t apply); who would take Blackacre?
[July 2003] What if Blackacre was devised to son Sam “if he survives me.” Would the anti-lapse statute apply in favor of Junior?
falls within to residuary estate; here to Tim’s wife
no; gift fails according to its terms; falls within to residuary estate
condition didnt meet
B. LAPSE IN RESIDUARY ESTATE: “SURVIVING RESIDUARY BENEFICIARIES” RULE
11. [twice] Toby’s will devises “all the rest and residue of my estate in equal shares to my good friend Alan, my brother Bill, and my sister Clara.” Alan predeceases Toby, leaving a child (Andy) who survives Toby by 120 hours. Bill and Clara survive Toby. What happens to the one-third residuary share bequeathed to Alan?
surviving residuary beneficiary’s rule?
1, anti-lapse doesnt apply; he is a friend not family
2, bill and clara 1/2 each; surviving residuary beneficiary’s rule
Where the residuary estate is devised to two or more persons, and the gift to one of them lapses, the remaining residuary beneficiaries take the residuary estate in proportion to their interests (absent contrary provision).
Toby’s will devises “all the rest and residue of my estate in equal shares to my good friend Alan, my brother Bill, and my sister Clara.” Alan predeceases Toby, leaving a child (Andy) who survives Toby by 120 hours. Bill and Clara survive Toby.
12. except that its Toby’s sis Clara who predeceased Toby, leaving child (Carl) who survives Toby by 120 hours. Alan and Bill also survive Toby. Who takes Clara’s one- third share of the residuary estate?
Anti-lapse statute applies in favor of Carl, overrides “surviving residuary beneficiaries” rule.
C. CLASS GIFTS
13. [Feb. 1997] Ted’s will devises Blackacre “to the children of my good friend, Joe Barnes,” and his residuary estate to his wife Rose. At the time the will is executed, Joe has two children: Al and Bill. After the will is executed but before Ted’s death, another child (Carl) is born to Joe; and Al dies survived by a son, Al Jr. Then Ted dies and his will is admitted to probate. Eighteen months later Joe has another child, Donna. Who owns Blackacre?
What do we say about Al?
who takes
[July 2000, July 2003, July 2008] If the gift were “to the children of my brother, Joe Barnes,”?
Class gifts rule of construction
anti-lapse doesnt apply, not related to T’s parents
bill and carl take 1/2 each as suviving class members
Class gifts rule of construction: In a gift by will to a class of persons (“children,” “brothers and sisters,” etc.) if a member of the class predeceases the testator, the CLASS MEMBERS WHO SURVIVE THE TESTATOR TAKE (absent a contrary will provision).
Subject to: possible application of the anti-lapse statute. [July 2000, July 2003, July 2008] If the gift were “to the children of my brother, Joe Barnes,” since the beneficiary who predeceased the testator was within the degree of relationship covered by the anti-lapse statute, and left a child who survived the testator (by 120 hours), Al Jr. would take under the lapse statute. The class gift rule gives way to the anti-lapse statute when the predeceasing class member is within the scope of the anti-lapse statute.
- [Feb. 1997] Ted’s will devises Blackacre “to the children of my good friend, Joe Barnes,” and his residuary estate to his wife Rose. At the time the will is executed, Joe has two children: Al and Bill. After the will is executed but before Ted’s death, another child (Carl) is born to Joe; and Al dies survived by a son, Al Jr. Then Ted dies and his will is admitted to probate. Eighteen months later Joe has another child, Donna. Who owns Blackacre?
Why is Donna excluded from sharing in the gift, when he’s a child of Joe Barnes????
nothing for Donna, because we won’t know further ones certain until JB dies
Rule of convenience: The “class closing” rule of construction used to define the takers of a class gift. The class is closed, meaning that later-born class members do not share in the gift, when some class member is entitled to a distribution. This is done to determine minimum share of each class member, so a distribution can be made without the necessity of rebate. Called “Rule of Convenience” because any other result would be inconvenient.
– Outright gift by will: the class closes at testator’s death.*
* [Feb. 1997]
Subject to gestation principle. [Family Code “presumption”: 300 days from conception to birth]
- Grant created trust: income to Son for life, remainder to his descendants. Divorced Son remarried, and—36 years after trust created—Son adopted wife’s children (age 39, 37 and 36). On Son’s death, the adopted children included in remainder?
the adopted children were not included in remainder gift; on these facts, adult adoption against Grant’s probable intent.
D. VOID GIFTS
Tim’s will devises Blackacre “to my brothers and sisters.” Tim had three brothers and three sisters, but a sister (Alice) was deceased when Tim he wrote the will.
D. VOID GIFTS – SAME RULES APPLY. Suppose that a beneficiary named in the will was dead at the time the will was executed. (This is called a void gift.) All of the above rules (anti-lapse statute [Feb. 2006]; surviving residuary beneficiaries rule) apply to void gifts.
[July 2003] Exception: if class member was dead when the will was executed, the anti-lapse statute does not apply in favor of that class member’s descendants.
Rationale: As Alice was dead when Tim wrote his will, Tim would not intend to include her or her descendants in the devise of Blackacre.
