Wills 12 : Anti-Lapse Statute

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Q: In her will, my birth mother gives stock to two of my four children and her cottage to me – along with some cash and half of the residuary estate.  The other half goes to her sister-in-law.  My doctor has just advised that my time is limited.

A: Unless this will is revised, your children’s attorney will need to argue that New York’s anti-lapse statute applies: that you are considered “issue” of your birth mother, and so the gift of cash and a half of the residuary estate does not lapse but vests in your four children.  The point will be that by naming you – the adopted-out child – as a beneficiary under her will, your birth mother altered your status from stranger to “issue” for the purposes of the anti-lapse statute.

Ordinarily, adopted children and their children are strangers to their birth relatives, and thus are excluded from class gifts.  Your point will be that your stranger status ceased when your were named in the will: your birth mother made you a non-stranger, with respect to the anti-lapse statute.

Although the courts of New York agree with this position, your birth mother’s attorney, in drawing up her will, does a far better job for the client in asking her, explicitly, what she wants to happen in case you predecease her.  Such a question is far better addressed in advance than left to the courts.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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