- General gifts – falls to the RC, if no RC then to intestacy
- 1. Gift of pecuniary value satisfied by using any item that fits the description of the gift (ex. $1,000 – bills, check, bonds, any form)
- Residuary gift – if it fails completely, falls to intestacy
- 1. Gift that gives way all of the testator’s property that has not otherwise been given away (ex. rest of my estate)
- Part of residuary – if there are multiple takers in the residuary clause, and the gift fails as to one or more, but not to all of them, the part that fails is distributed among the other beneficiaries in the residuary clause
- 1. UPC §2-604(b): If testator included a residuary clause, intent was for all of the testator’s property to pass via the will and nothing through intestacy, as long as any part of the residuary clause is valid, that part catches whichever part of the residuary clause fails
- 2. Anti Laps Statute (UPC §2-605): The lapsed gift goes to the issue of the predeceased beneficiary
- a. Where there is a lapse;
- Applies the doctrine to any qualifying beneficiary who predeceases the testator regardless of whether the beneficiary dies before or after execution of the will
- Common law applied to lapsed gifts only, not to void gifts
- UPC approach is that anti-lapse does not apply to spouses, only issue
- b. The predeceased beneficiary meets the statutory degree of relationship to the testator;
- Predeceased beneficiary required to be a grand parent or a lineal descendant of a grandparent to qualify for the anti-lapse doctrine
- Amendment expands scope of predeceased beneficiaries to include stepchildren
- c. The predeceased beneficiary has issue who survive the testator; and
- Predeceased beneficiary must have issue who survive not only the predeceased beneficiary, but also the testator
- UPC requires that the issue survive the testator by 120 hours
- d. The will does not express a contrary intent
- If the beneficiary is related closely enough to the testator and is survived by issue, the testator is presumed to have preferred that the gift go to the issue of the predeceased beneficiary rather than fail
- This is a rebuttable presumption, but generally, any contrary intent must be expressed in the will
- 1. Any express words of survival; or
- a. UPC provides that mere worlds of survival (if he survives me, or my surviving issue), w/o more, is not sufficient to constitute an express intent barring application of anti lapse (2-603(b)(3))
- 2. Any express gift-over in the will to another beneficiary in the event of the first beneficiary’s death constitutes a sufficient “express contrary intent” to bar application of the anti-lapse doctrine

### Problems in Will Construction – Changes in Property After Execution of Will

- 1. Common Law Ademption (Identity Approach)
- a. When the testator makes a specific gift in their will, and thereafter the item in question is transferred to someone else, what does the beneficiary take?
- If the will makes a specific gift, the executor goes through the testator’s probate estate to see if they can identify that item in the estate
- If they can, beneficiary takes the item
- If they cannot find the item, gift is adeemed (revoked)