Provides that the disposition of a future estate not subject to a condition precedent vests per stirpes

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)