5.37 1. Anti-Lapse Provisions

• Jurisdiction: New York

1. Anti-lapse Provisions

At common law, when an intended gift otherwise valid could not vest or be given effect because of failure of a condition or contingency or the death of the specified beneficiary, unless there was a contrary expression of intent by the testator, the gift or devise lapsed or failed. In order to avoid the harsh consequences of the common-law lapse rule, which, in some instances, was considered as defeating the presumed intention of the testator, the legislature enacted an anti-lapse statute.

Initially, the anti-lapse rule applied with respect to devises to descendants of the testator who predeceased him, leaving descendants. The saving provisions were subsequently extended to the testator’s brothers or sisters.⁷⁰⁸

For wills executed prior to September 1, 1992, where dispositions are made to the issue of the testator or to brothers or sisters of the testator and such designated beneficiaries predecease the testator, leaving issue surviving the testator, such dispositions do not lapse but vest in the surviving issue per stirpes.⁷⁰⁹ For wills executed on or after September 1, 1992, the surviving issue take by representation.⁷¹⁰ As used in the statute, the term issue includes adopted and illegitimate or nonmarital children.

These anti-lapse provisions also apply to class dispositions. They do not apply to any beneficiaries not specifically designated in the statute and also do not apply if the disposition lapses for any reason other than the beneficiaries’ deaths, such as a failure of a specified condition or violation of the rule against perpetuities, or if the testator provides otherwise in his will.⁷¹¹

Similarly, EPTL 3-3.4 prevents the failure of a disposition to two or more residuary beneficiaries that is ineffective in part if such a disposition is not saved by the provisions of EPTL 3-3.3 and the testator has not made an alternate disposition in his will. In this situation, the property that is the subject of the ineffective part passes and vests ratably in the remaining residuary beneficiaries. This section became effective September 1, 1967, and abolished the common-law rule to the effect that there is no “residue on a residue.”⁷¹²

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Notes:

^[708] . Former DEL § 29 (effective April 15, 1912).

^[709] . EPTL 3-3.3.

^[710] . Id. See discussion supra at § See 4. Death on or after September 1, 1992.

^[711] . EPTL 3-3.3; In re Wells, 113 N.Y. 396 (1889); Downing v. Marshall, 23 N.Y. 366 (1861); In re Anonymous’ Estate, 204 Misc. 1045...