Also known as: antilapse statutes · anti-lapse statute · anti-lapse statutes · anti lapse statute
Written by attorneys — see sources below.
A statutory rule of construction that creates a substitute gift in favor of the descendants of a predeceasing devisee within a protected class of relatives when the devisee fails to survive the testator.
Austin Abbott's will devised his farm to his brother Ben. Ben died before Austin but left two children who survived Austin. The antilapse statute treats Ben as a protected devisee and creates a substitute gift so the farm passes to Ben's children by representation instead of lapsing.
Alan Ackerman's will left a specific bequest to his sister Anita if she survived him. Anita predeceased Alan and left a child who survived. Because the will conditioned the gift on survival, the antilapse statute does not apply and the bequest lapses.
Bankers Trust Company of Des Moines, as executor of the estate of Alden B. Howland, deceased, brought this action for declaratory judgment construing his will and determining the rights of his widow, Bertha, and numerous heirs in the estate. Decedent, a prominent Des Moines lawyer, died July 24, 1962. His will, made October 3, 1961, was admitted to probate six weeks later. Following trial to the court as in equity, Bertha appealed and the heirs cross-appealed from the decree. Decedent and Bertha were married in 1939 but did not live together until 1943. They had no children. Decedent was devoted to his widowed mother and unmarried sister Mary, with whom he lived until 1943. The sister Mary, named in the will, predeceased testator on February 20, 1962. He acquired under her will her undivided half interest in the Clark Street property. He previously owned the remaining interest therein. Item II of the will gave the residence property, household furniture, and one-half of personal property to Bertha if she survived. Item III gave the remaining one-half of personal property plus the undivided one-half interest in the Clark Street residence to Mary if she survived. Item IV provided that the provision for Bertha was in lieu of all other claims and any widow's allowance. Bertha applied for, the court granted, and she accepted a widow's allowance of $12,000. There were three policies of insurance on testator's life, two payable to him and the other to his executor, and the insurers paid the executor nearly $20,000 as proceeds of the policies. The extrinsic evidence showed that none of decedent's heirs lived in Des Moines during the last 50 years; most of them lived in the East. Decedent's father died when he was ten and his mother, with decedent, Mary and a daughter who died in 1937, moved into the home of the mother's sister and her husband in Des Moines. Defendant Ward S. Allen, Jr. claims half the intestate property as decedent's only heir by reason of descent from decedent's maternal grandparents. Defendants Almy S. Howland et al. claim one fourth as heirs by reason of descent from two of the four paternal great-grandparents. The trial court ruled on the disposition of property, the widow's rights, insurance proceeds, and reserved determination of who the heirs are except for stipulated facts regarding defendants Ward S. Allen and Almy S. Howland et al. The court ordered the executor to pay costs and fees in specific ways and to discontinue further search for heirs.
View caseModern antilapse statutes treat an individual who would have taken under a class gift if the individual had survived the testator as a class member for purposes of creating a substitute gift when the individual is within the protected group and leaves surviving descendants.
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A devise conditioned on the beneficiary surviving the testator manifests an intent that the gift lapse if the beneficiary dies first, so the antilapse statute yields to that expressed condition.
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Most antilapse statutes protect devises to grandparents and descendants of grandparents, and some also protect stepchildren, but they ordinarily exclude the testator's spouse.
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An antilapse statute yields when the will expressly creates an alternative disposition that takes effect upon the devisee's failure to survive, such as a specific direction routing the gift to the residue.
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…Jr., had children bom after the testator’s death makes a violation of the mie an actual fact. : The Massachusetts antilapse statute applies only to testamentary gifts to a child or other relation of a testator who predeceased the testator leaving issue surviving the testator and to class gifts to children or other…