TITLE OF BILL:
the estates, powers and trusts law, in relation to the disposition to
issue or brothers or sisters of testator not to lapse and the
application to class dispositions
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.
This measure would resolve a conflict between EPTL 3-3.3, the
anti-lapse statute, and EPTL 2-1.2, which requires that a disposition
to "issue" is to be distributed to them by "representation" as that
term is defined in EPTL 1-2.16.
The conflict involves a gift to the testator's "issue": viz., "I give
the residue of my estate to my issue." Under EPTL 2-1.2 the issue
must take "by representation", which is defined in EPTL 1-2.16 to be
what is usually called "per capita in each generation": viz., the
initial division of the property is made at the eldest generation in
which someone is living and every person entitled to take in each
subsequent generation takes an equal share. Assume that at the time
the will is executed the testator has living issue: two children,
Band C; each of whom have two children (GC 2,3,4 and 5) and a child
of child A who is dead (GC 1). The first problem arises because of
the language in EPTL 3-3.3 which excludes from the operation of the
statute surviving issue of an ancestor who died before execution of
the will. It could be argued, albeit unfairly, that GC 1 should
receive nothing if he or she survives the testator because A was dead
at the time the will was executed. The second problem arises when B
has another child (GC 6), B dies before the testator and B's three
children (GC 4, 5 and 6) survive the testator. Do these three
children of B divide among themselves B's share of the residuary estate
by operation of EPTL 3-3.3 or do they take in their Own right as
issue of the testator? If the former (and assuming that C survives the
testator, as does GC 1 who is entitled to take), they each take I19
of the residuary estate (1/3 x 1/3); if the latter, they take I16
each; that is, they divide the I13 that is set aside for A's
descendants and the I13 set aside for B's descendants equally (I14 x
2/3 = 2/12=1/6).
These questions arise because EPTL 3-3.3(a)(3) makes the anti-lapse
statute applicable to a gift to the testator's issue "as a class."
This application makes sense if the class is a single generation
class ("1 give $100,000 to my brothers and sisters" or 1 devise
Blackacre to my children") but not if the class is a
multi-generational class to which distribution is made by
representation under EPTL 2-1.2. This measure addresses the problem
by eliminating from the operation of the anti-lapse statute any gift
to a multi-generational class, which of course carries with it the
implied condition that a class member must survive to the time of
distribution of the property involved. In fact, there is an argument
that the implied requirement of survival should be sufficient to
override the anti-lapse statute as an indication that the will
"provides otherwise," and the proposal insures that result by statute.
We note that the Uniform Probate Code anti-lapse statute, which
requires 'an express gift over in case of the death of the "devisee"
to override the anti-lapse statute, excludes from its operation any
class gift to "issue," "descendants," "heirs of the
body," "heirs," "next of kin," "relatives," or "family" "or a class
described by language of similar import" thus preserving for such
class gift the survival to time of distribution condition. (UPC
§2-603(b)(2)). A similar exclusion from EPTL 3-3.3 would eliminate this
The second issue addressed by the proposal deals with the lapse of a
disposition of a future estate. Assume that the testator's residuary
clause creates a testamentary trust, income to the surviving spouse
for life, remainder "to my children." At the time the testator
executes the will there are three living children, A, B and C, and no
predeceased children. At the time of the testator's death one of the
children is dead and that child's two children (GC 1 and GC 2),
survive the testator. At the surviving G spouse's death B, e, GC 1
and C 2 are all alive. Do the grandchildren take 1/3 of the trust
property or do B and C take 1/2 each under EPTL 2-1.15? This measure
makes clear that the grandchildren take what their parent would have
had, that is, the anti-lapse statute does indeed apply.
The measure does not apply to a future estate subject to a condition
precedent of surviving the testator just as with a gift of a present
estate, nor, under the provisions previously discussed, apply to a
remainder given to a multi-generational class.
This act shall take effect immediately; provided, however, that it
shall apply only to the estates of decedents who shall have died on
or after such effective date.
None. New proposal.