Wills and Survival

Abstract

This Article examines the rule of lapse in wills law, discusses how efforts to reform the damage it does has led to the doctrine of anti-lapse, and advocates an alternative approach. In contrast to the requirement of survivorship of beneficiaries in wills law, I argue that testators do not have in mind survival when their wills make no such indication. I propose that we allow the provisions of a beneficiary’s probated will to control the disposition of a bequest where the beneficiary has predeceased the testator by one year or less. This rule would carry out the probable intentions of the "wills-minded" testator and is preferable to the predominant anti-lapse approach that typically favors a narrow set of the testator’s heirs.

Keywords: wills, lapse, anti-lapse, survivorship, class gifts, voidness, acts of independent significance, extrinsic evidence, powers of appointment