Class Gifts

Question 1

What happens when a class member predeceases the testator? Does the anti-lapse statute apply?

Answer 1

Absent a contrary provision in the Will, if a Will makes a gift to a group of persons described as a generic class (e.g., “children”, “siblings”, etc.) AND some members of the class predecease the testator, the class members who survive the testator take in equal shares UNLESS the anti-lapse statute applies.

Question 2

What if the testator names beneficiaries individually, not as a class, and they predecease the testator?

Answer 2

The share lapses [unless anti-lapse statute applies] but this time the gift does not go to the others individually named, instead it will pass over into the residuary.

Question 3

Class Gifts & Adopted Out Children?

Answer 3

• If a child is adopted by a new family, the “adopted out” child does NOT take as a beneficiary of a class gift made in the will of a member of the child’s birth family
• REMEMBER: the adopted out child is entitled to a share in a class gift if she is adopted by a member of the birth family OR by a step-parent

Question 4

Rule of Convenience

Answer 4

Class closes @ the time a distribution to the class must be made. Later-born class members are excluded from taking as members of the class.

EXCEPTION: Later-born class members are NOT excluded from taking as members of the class if the “gestation” principle applies. This is a common law presumption that there are 280 days from conception to birth

Question 5

When does the class close if there is an outright gift by will?

Answer 5

At Ts death

Question 6

When does the class close if there is a life estate or an income interest w/ a remainder to a class of beneficiaries?

Answer 6

Class closes at the death of the life tenant or the income beneficiary