Law of Wills, 2016A

M.S.A. § 524.2-603. Antilapse; deceased devisee; class gifts; words of survivorship (Minn.)
Subdivision 1. Deceased devisee. If a devisee who is a grandparent or a lineal descendant of a
grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or
is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the
testator by 120 hours take in place of the deceased devisee. If they are all of the same degree of
kinship to the devisee, they take equally. If they are of unequal degree, those of more remote degree
take by representation. A person who would have been a devisee under a class gift if the person had
survived the testator is treated as a devisee for purposes of this section, whether the death occurred
before or after the execution of the will.
This is a typical antilapse statute. In order for the statute to apply, the case must involve the
issue of the testator. For instance, T executes a will stating, “I leave my house to my son, Solomon.
I leave the remainder of my estate to my friend, Jacob.” Both Solomon and Jacob predecease T.
Solomon is survived by his son Gino, and Jacob is survived by his daughter, Dottie. Since Gino is a
lineal descendant of the T, the antilapse statute would apply to allow Gino to take the gift that was
meant for his deceased father. However, the gift to Jacob would lapse because his daughter, Dottie
is not related to T in the manner specified by the statute.
14.3.1 Devisee Predeceases the Testator
An antilapse statute is only relevant if one or more of the devisees dies prior to the testator.
Nonetheless, a physical death is not necessary. The statute may also come into play in situations
where the court presumes that the devisee predeceased the testator. That presumption may arise
because the devisee disclaims the bequest or is somehow considered unfit to inherit.
Gianoli v. Gabaccia, 412 P.2d 439 (Nev. 1966)
ZENOFF, District Judge.
This is a case of will interpretation in which the sole matter at issue is the pertinence and application
of Nevada’s ‘antilapse statute,’ NRS 133.200. The lower court ruled the statute inapplicable and
ordered testate distribution accordingly. We reverse.
The testator John Data, executed a valid will on December 2, 1946, the material paragraphs of which
follow: ‘SECOND: I give and bequeath to each of my brothers and sisters, the sum of five thousand
dollars ($5,000.00).
‘THIRD: All the rest, residue and remainder of my estate, real, personal or mixed, wheresoever
situate, of which I shall die seized or possessed, or to which I shall be entitled at the time of my
decease, or to which my estate shall thereafter become entitled, I give, devise and bequeath to my
nephews and nieces, share and share alike.’
Data, a bachelor, originally was from a family of seven. At the time of his will’s execution, however,
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