Beware the Anti-Lapse Statute

For generations, law students and practitioners alike have scratched their heads over “lapsed legacies” in will cases.  A recent Tennessee Court of Appeals case serves as a refresher on the subject.  Estate planners, take note…

At common law, when a person who would take under a will predeceases the testator, the legacy lapsed. The “anti-lapse” statute, Tenn. Code Ann. § 32-3-105, changes the common law rule, however, and provides that when a devisee or legatee predeceases the testator leaving issue surviving the testator, the issue will take, per stirpes, in absence of a contrary provision in the will.  If there are no issue of the devisee surviving the testator, the common law rule applies, i.e., the legacy lapses.

In In Re Estate of Wanda Joyce Watkins (Tenn. Ct. App. July 25, 2017), the Court of Appeals faced application of the statute.  At issue in Watkins was a provision in a wife’s will that her residuary estate passed to the husband, but the provision did not dictate to whom the residuary estate would pass if the husband her.  The provision in the will read, “All the rest, residue and remainder of my estate, I give, devise and bequeath to my husband, John M. Vance.”  But, in this case the husband predeceased the wife, raising the question as to where the wife’s residuary estate would vest.

Ms. Watkins (the wife) and her husband had no children together, although they each had children from other realtionships.  As executor of her mother’s estate, Ms. Watkins’s daughter filed a petition to construe the will, arguing that it was her mother’s intent that her residuary estate would pass to  Ms. Watkins’s heirs.  In other words, Ms. Watkins’s daughter argued that she should inherit her mother’s residuary estate. The trial court agreed with the daughter and held that the residuary estate would pass to Ms. Watkins’s heirs by intestate succession.

The Court of Appeals reversed, however, applying the anti-lapse statue and providing that the residuary estate would pass to the husband’s children.  While we can only speculate as to what Ms. Watkins would have really wanted, this case results in the unusual situation of a woman’s stepchildren inheriting instead of biological children. This provides a reminder of the consequences of inartful drafting of wills.

Post by: Jillian Mastroianni

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