§560:2-603 - Antilapse; deceased devisee; class gifts.

§560:2-603 Antilapse; deceased devisee;
class gifts. (a) Definitions. In this section:

"Alternative devise" means a devise
that is expressly created by the will and, under the terms of the will, can
take effect instead of another devise on the happening of one or more events,
including survival of the testator or failure to survive the testator, whether
an event is expressed in condition-precedent, condition-subsequent, or any
other form. A residuary clause constitutes an alternative devise with respect
to a nonresiduary devise only if the will specifically provides that, upon
lapse or failure, the nonresiduary devise, or nonresiduary devises in general,
pass under the residuary clause.

"Class member" includes an individual
who fails to survive the testator but who would have taken under a devise in
the form of a class gift had he or she survived the testator.

"Devise" includes an alternative
devise, a devise in the form of a class gift, and an exercise of a power of
appointment.

"Devisee" includes:

(1) A class member if the devise is in the form of a
class gift;

(2) An individual or class member who was deceased at
the time the testator executed the testator's will as well as an individual or
class member who was then living but who failed to survive the testator; and

(3) An appointee under a power of appointment
exercised by the testator's will.

"Stepchild" means a child of the
surviving, deceased, or former spouse of the testator or of the donor of a
power of appointment, and not of the testator or donor.

"Surviving devisee" or
"surviving descendant" means a devisee or a descendant who neither
predeceased the testator nor is deemed to have predeceased the testator under
section 560:2-702.

"Testator" includes the donee of a
power of appointment if the power is exercised in the testator's will.

(b) Substitute gift. If a devisee fails to
survive the testator and is a grandparent, a descendant of a grandparent, or a
stepchild of either the testator or the donor of a power of appointment
exercised by the testator's will, the following apply:

(1) Except as provided in paragraph (4), if the
devise is not in the form of a class gift and the deceased devisee leaves
surviving descendants, a substitute gift is created in the devisee's surviving
descendants. They take by representation the property to which the devisee
would have been entitled had the devisee survived the testator;

(2) Except as provided in paragraph (4), if the
devise is in the form of a class gift, other than a devise to
"issue", "descendants", "heirs of the body",
"heirs", "next of kin", "relatives", or
"family", or a class described by language of similar import, a
substitute gift is created in the surviving descendants of any deceased
devisee. The property to which the devisees would have been entitled had all
of them survived the testator passes to the surviving devisees and the
surviving descendants of the deceased devisees. Each surviving devisee takes
the share to which he or she would have been entitled had the deceased devisees
survived the testator. Each deceased devisee's surviving descendants who are
substituted for the deceased devisee take by representation the share to which
the deceased devisee would have been entitled had the deceased devisee survived
the testator. For the purposes of this paragraph, "deceased devisee"
means a class member who failed to survive the testator and left one or more
surviving descendants;

(3) For the purposes of section 560:2-601, words of
survivorship, such as in a devise to an individual "if he survives
me", or in a devise to "my surviving children", are not, in the
absence of additional evidence, a sufficient indication of an intent contrary
to the application of this section;

(4) If the will creates an alternative devise with
respect to a devise for which a substitute gift is created by paragraph (1) or
(2), the substitute gift is superseded by the alternative devise only if an
expressly designated devisee of the alternative devise is entitled to take
under the will;

(5) Unless the language creating a power of
appointment expressly excludes the substitution of the descendants of an
appointee for the appointee, a surviving descendant of a deceased appointee of
a power of appointment can be substituted for the appointee under this section,
whether or not the descendant is an object of the power.

(c) More than one substitute gift; which one
takes. If, under subsection (b), substitute gifts are created and not
superseded with respect to more than one devise and the devises are alternative
devises, one to the other, the determination of which of the substitute gifts
takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the devised
property passes under the primary substitute gift;

(2) If there is a younger-generation devise, the
devised property passes under the younger-generation substitute gift and not
under the primary substitute gift;

(3) In this subsection:

"Primary
devise" means the devise that would have taken effect had all the deceased
devisees of the alternative devises who left surviving descendants survived the
testator.

"Primary
substitute gift" means the substitute gift created with respect to the
primary devise.

"Younger-generation
devise" means a devise that:

(A) Is to a descendant of a devisee of the
primary devise;

(B) Is an alternative devise with respect to
the primary devise;

(D) Would have taken effect had all the
deceased devisees who left surviving descendants survived the testator except
the deceased devisee or devisees of the primary devise.

"Younger-generation
substitute gift" means the substitute gift created with respect to the
younger-generation devise. [L 1996, c 288, pt of §1]