'I'm Not Quite Dead Yet!': Rethinking the Anti-Lapse Redistribution of a Dead Beneficiary's Gift

Abstract

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent. This Article analyzes and identifies the deficiencies encountered in the common law, state statutes, Uniform Probate Code, and Uniform Trust Code, and proposes possible solutions. Finally, it questions the need for anti-lapse statutes and considers application of the doctrine of reformation in their stead.

Keywords: Wills, trusts, anti-lapse, statutes, jurisprudence, class gifts, Uniform Probate Code (UPC), UPC § 2-707, Uniform Trust Code (UTC) § 107, testator, settlor, beneficiary