The Stale Will Problem

• Author: Browne C. Lewis
• Pages: 617-587

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Chapter Fifteen: The Stale Will Problem

15.1 Introduction

After executing a will, a testator continues to live his or her life. A will does not become final

until the testator dies. During the time between the execution of the will and the death of the

testator, a will can become stale or outdated. A stale will problem exists when there are changes in

the status of the beneficiaries and/or the property named in the will. This chapter is divided into

two parts. Part one examines the legal consequences of a beneficiary of a will predeceasing the

testator. It also deals with void will situations involving bequests to persons who are dead when the

will is executed or gifts to animals. Part two includes a discussion of legal doctrines applicable to

cases that arise when the property mentioned in a will does not exist when the testator dies.

15.2 Common law/Default Lapse Rules

Under the common law, the default rule is that a devisee must survive the testator to take

under the testator’s will. In essence, the law places a condition of survivorship on testamentary gifts.

If the person who is named in the will does not survive the testator, the devise to that person lapses

or fails. The two exceptions to this rule are the following: (1) the testator specifies what is to happen

to the devise in the event that the beneficiary predeceases the testator and (2) the jurisdiction has an

antilapse statute that substitutes another beneficiary for the deceased devisee. There are rules for

specific or general gifts and for the residue of the estate. For clarity, consider the following basic

example. Ramon, a widower, had two children, Madeline and Stanley. Stanley had two children,

Brooke and Reginald. In 2000, Ramon executed a will stating, “I leave half of my estate to Madeline

and half to Stanley. In 2012, Stanley died survived by his two children, Brooke and Reginald. Ramon

dies in 2015. Under common law, the gift to Stanley would lapse, so Stanley’s children would not

inherit through him. What happens to the half of the estate that was left to Stanley? The answer to

that question depends on several variables.

15.2.1 Specific and General Devises

A specific devise is one that is precisely described in the will. For example, the testator leaves

a specific devise by stating, “I leave my car to Sam.” A general devise is a gift of money. It occurs

when the testator’s will states, “I leave $100,000 to Gilbert.” If a specific or general devise lapses, the

devise falls into the residue.

Example:

In 1998, Claudia executed a will stating, “I leave my farm (specific devise) to ″rank and $50,000

(general devise) to Clifford. The remainder of my estate (residuary devise) is to go Leonard.” In

2012, Clifford died survived by one child, Bryan. In 2014, Frank died survived by three children,

Lisa, Marie and Elvis. In 2015, Claudia died.

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Explanation:

The farm and the $50,000 fall into the residue instead of going to the heirs of Frank and Clifford.

Thus, Leonard takes the entire estate.

15.2.2 Residuary Devises

The residuary clause in a will is the catch-all provision. All property that is left over after the

testator grants items to specific beneficiaries falls into the residue of the estate and goes to the

person or persons who are the named takers. If the residuary devise lapses, the heirs of the testator

take by intestacy even if they have not been listed in the will. If the testator leaves the residuary to

two or more people and the gift of one of those beneficiaries lapses, that portion of the residuary

passes by intestacy to the testator’s heirs instead of going to the remaining residuary takers. Let’s

look at some examples.

Example 1:

In 2011, Ronald left a will stating, “I leave my house to Hillary and the rest of my estate to Bonita.”

In 2012, Bonita died survived by her son, Keith. In 2014, Ronald died. His sole intestate heir was his

son Gibson.

Explanation 1:

Bonita’s bequest falls out of the probate estate and Ronald dies intestate with regards to the residue

of her estate. Thus, Hillary gets the house and Gibson gets the rest of the estate. It does not matter

that Ronald chose not to include Gibson in his will.

Example 2:

In 1999, Sherrie left a will stating, “I leave my condo to Pamela. I leave the residue of my estate

equally to Nancy and Gleason.” In 2005, Nancy died survived by two children, Michael and Dale. In

2014, Sherrie died survived by her sole intestate heir, her son, Jenkins.

Explanation 2:

In the majority of jurisdictions, Nancy’s portion of the residue would fall into the residue and go to

Gleason. Thus, Pamela would get the condo and Gleason would take the rest of the estate.

15.2.3 No Residue-of-a Residue Rule

A few states continue to apply the “no residue-of-a residue rule. Under that rule, if one of

the residue beneficiaries predeceases the testator, his or her portion cannot lapse into the residue.

Instead, the dead beneficiary’s share of the residue falls out of the probate estate into the intestacy

estate.

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Example 3:

In 2013, ″reda left a will stating, “I leave my art collection to Vince. I leave the residue of my estate

equally to Molly and ′ddie.” In 2011, Eddie died survived by one child, Cedrick. In 2015, Freda

died survived by her sole intestate heirs, her sisters, Thomasina and Lucille.

Explanation 3:

Under the “no residue-of-a residue” rule, ′ddie’s portion of the residuary would fall out of the

probate estate into the intestacy estate. Thus, Vince would get the art collection. The residue would

be split between Molly, Thomasina and Lucille.

15.2.3 Class Devises

If the devise is to a class of persons and one member of the class predeceases the testator,

the surviving members of the class divide the gift.

Example:

In 2009, Tony executed a will stating, “I leave $100,000 to my nephews and the rest of my estate to

Monique.” At the time the will was executed, Tony had four nephews, Jessie, Peter, Larry and

Benjamin. Larry and Peter predeceased Tony. In 2014, Tony died survived by his nephews, Jessie

and Benjamin. Tony was also survived by his sole intestate heir, his daughter Jenny.

Explanation:

Since this is a class gift, the portion of the estate meant to go to Larry and Peter remains in the class

and goes to Jessie and Benjamin. Thus, Jessie gets $50,000; Benjamin gets $50,000; and the rest of

the estate goes to Monique. Jenny does not receive any of the estate.

The main legal issue that arises when a testator leaves a devise to a group of people is

whether or not that group constitutes a class. The test that is usually applied is if the testator was

group minded. The testator is considered to be group minded if he or she uses a class label in

describing the beneficiaries such as children, nieces and nieces. However, if the testator mentions

the members of the group by name, the court may conclude that a class gift was not intended. In

those cases, the courts reasons that the group classification is used for description and not

designation.

Matter of Seaman, 196 Misc. 202 (N.Y. Sur. Ct. 1949)

FRANKENTHALER, S.

In this proceeding to settle the final account of an administratrix c.t.a., a construction of the will is

requested. Under paragraph sixth thereof the residuary estate was given ‘to my step-mother, Alice B.