THE ANTI-LAPSE STATUTE

First published in the September 2206 issue of the Suffolk County Women’s Bar Association Newsletter

In a case of first impression, the Surrogate’s Court of Bronx County held that the anti-lapse statute, EPTL§3-3.3(a)(10, applies only to the class of heirs specifically named in the statute, i.e.: the issue or siblings of the testator. In Matter of the Estate of Lindeman, 2006 WL 2035727 (N.Y. Sur.), 2006 N.Y. Skip Op. 26296, the testator named his sister as the sole beneficiary under his Will and the executrix of his estate. The testator also named his niece, the daughter of another sister, as the alternate sole beneficiary and executrix. Both the sister and the niece predeceased the testator. A nephew of the testator petitioned for letters of administration, arguing that the Will had no testamentary effect and there was no reason to offer it for probate.

The Court agreed, stating that the legislature would have listed nieces and nephews in the anti-lapse statute if they had intended these heirs to fall within its gambit. Since EPTL§3-3.3(a)(1) was not applicable here, the Court issued Letters of Administration to the nephew. Interestingly, if the niece had been the daughter of the sibling who was named as the sole beneficiary under the Will, rather than the daughter of the testator’s other sister, the legacy would have vested in the niece and her issue, despite the fact that she predeceased the testator. That is because EPTL1-2.10 provides that a legacy vests in the issue of a primary beneficiary that predeceases the testator.

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