UC Law Journal


Susan F. French


Antilapse statutes provide for the testamentary passing of property to issue, heirs, or devisees of will beneficiaries who predecease the testator. In fortynine states, legislatures have drafted such statutes to carry out the testator's probable intent regarding gifts that would otherwise lapse and pass to the testator's residuary or to intestate takers. Courts tend to apply antilapse statutes mechanically, and the results do not always reflect what the average testator would intend. Antilapse statutes perpetuate a testators preference for members of one generation into the next generation, even when the testator would have wanted to treat members of the more remote generation equally. Furthermore, antilapse statutes fail to save gifts to unrelated will beneficiaries whom the testator would regard as family. Antilapse statutes should carry out the wishes of the normal testator; ideally, they should prevent the unintended passing of property to nonfamily residuary takers and promote equitable distributions among branches of a testator's family. Following a classificatory survey of state antilapse statutes and a critical examination of their judicial application, this Article proposes a new statute that would carry out a testator's intent under most testamentary circumstances and would eliminate the inequities of the present distribution system.

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