BILL NUMBER:S7463A

TITLE OF BILL:
An act
to amend
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
1/9 of the residuary estate (1/3 x 1/3); if the latter, they take 1/6
each; that is, they divide the 1/3 that is set aside for A's
descendants and the 1/3 set aside for B' s descendants equally (1/4 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
("I give $100,000 to my brothers and sisters" or I 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 for all decedents dying on or after
the effective date without regard to when the decedent's will was
executed.

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 particular conflict.

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 land GC 2),
survive the testator. At the surviving G spouse's death B, C, 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 without regard to when the decedent's
will was executed.

2012 LEGISLATIVE HISTORY:
Senate 7463 (Bonacic) (Ref to Judiciary)
Assembly 9478 (M. of A. Lavine) (Reported)