Lapse and anti-lapse

The law of wills and trusts
Part of the common law series
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Types of will
Holographic will  · Will contract
Living will
Joint wills and mutual wills
Parts of a will
Codicil  · Attestation clause
Incorporation by reference
Residuary clause
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Contesting a will
Testamentary capacity  · Undue influence
Types of Trusts
Express trust  · Asset-protection trust
Protective trust  · Spendthrift trust
Charitable trust  · Honorary trust
Resulting trust  · Constructive trust
Special Needs trust
Doctrines governing trusts
Pour-over will  · Cy pres doctrine
Other areas of the common law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

Lapse and anti-lapse are complementary concepts under the law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will).

Lapse

Lapse is a common-law rule that if the person to whom property is left (called the beneficiary or devisee) were to die before the testator, then the gift would be ineffective. The property would instead go to the testator's residuary estate. If the deceased beneficiary was intended to inherit part of all of the residuary estate, then that portion of the estate would pass by intestate succession, as though the testator had left no will. This was called the "no residue of a residue" rule, because the portion of the residuary estate that did not itself pass under the will could not be considered part of the residuary estate at all.

Anti-lapse statutes

Most jurisdictions have enacted an anti-lapse statute to address this situation. The anti-lapse statute "saves" the bequest if it has been made to parties specified in the statute, usually members of the testator's immediate family, if those family members had descendants. If this is the case, then the descendants of the deceased beneficiary will inherit whatever was willed to that beneficiary. The testator can prevent the operation of an anti-lapse statute by providing that the gift will only go to the named beneficiary if that beneficiary survives the testator, or by simply stating in the will that the anti-lapse statute is not to apply.

Another modification to the common law of lapse is the elimination of the "no residue of a residue" rule where multiple beneficiaries are named to inherit the residue. The modern view is that where a beneficiary was intended to inherit part of the residuary estate who is not predeceases the testator, and that beneficiary is not covered by the anti-lapse statute, then that beneficiary's inheritance will return to the residuary estate, to be inherited by the other beneficiaries to whom the residue has been willed.