Changes in Beneficiaries and Property after Will's Execution: Lapsed Gifts and Anti-Lapse Statute

Question 1

When does a gift lapse?

Answer 1

Normally, a gift lapses if the beneficiary pre-deceases testator

Question 2

How does the CA anti-lapse statute work?

Answer 2

If gift was to:

1. kindred of T or of T’s spouse or DP; AND
2. leaves a descendent

NOTE –> kindred means blood relative, adopted person, stepchild, foster child, or their issue.

NOTE –> anti-lapse statute does NOT apply to spouse or DP

EFFECT –> their descendant takes by substitution. it does NOT go to pre-deceased beneficiary’s estate

Question 3

What is the rule w regards to “anti-lapse statute” and contrary will provisions?

Answer 3

The anti-lapse statute will not apply if there is a contrary provision in the will

EXAMPLE –> if there is language relating to survivorship

NOTE –> a general disinheritance clause, or clause limiting beneficiary to nominal amount does NOT count as a contrary provision

Question 4

What happens if there is a lapse of a residuary gift?

Answer 4

At common law –> if one beneficiary pre-deceased T, their share would go to beneficiary’s estate

California rule –> surviving beneficiaries divide the share of pre-deceased beneficiary in proportion to their shares
HOWEVER –> if anti-lapse statute applies, it will save the gift, and the anti-lapse rules will apply

Question 5

What happens if there is a lapse of a class gift?

Answer 5

If will makes gift to class:

General rule –> only members of the class that survive T take

EXCEPTIONS:

1. if will provides otherwise; OR
2. if anti-lapse requirements are met

Question 6

What happens if a beneficiary is dead at the time the will is executed?

Answer 6

• gift is void

- the rules that apply to lapse gifts also apply to void gifts