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Will That Contained Provisions To Exclude Unmentioned Heirs And To Disinherit Will Contestants Did Not Sufficiently Express An Intent To Preclude The Operation Of California's Anti-Lapse Statute

Andrew David Loveland
Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office

April 15, 2010

Previously published on March 31, 2010

In Estate of Nellie G. Tolman, (181 Cal.Rptr.4th 1433, Cal.App. 2 Dist., February 11, 2010), a California Court of Appeal considered whether a will that contained provisions to exclude unmentioned heirs and relatives and to disinherit persons who contest the disposition of property under the will expressed an intent to preclude the operation of California’s anti-lapse law following a legatee’s death. The Court of Appeal held the will did not sufficiently express an intent to preclude operation of the anti-lapse law.

Nellie G. Tolman (“Decedent”) and her husband Lloyd E. Tolman, had two children, Lloyd C. Tolman and Betty Joe Miller (“Miller”). Decedent’s will bequeathed all of her property to Lloyd E. Tolman, unless he predeceased her. Nellie’s husband did in fact predecease her. In such case, the will provided Decedent’s granddaughters, Deborah Tomlinson (“Tomlinson”) and Laurie Onan (“Onan”), who are the surviving children of Lloyd C. Tolman, each would receive $10,000, and the remainder of the Decedent’s estate would go to Miller. Decedent’s bequest to Tomlinson and Onan provided that, if either predeceased Decedent, the gift would lapse. Decedent’s residual bequest to Miller contained no lapse provision or any alternative disposition.

Decedent’s will also provided “Except as otherwise specifically provided for herein, I have intentionally omitted to provide herein for any of my heirs who are living at the time of my demise, and to any person who shall successfully claim to be an heir of mine, other than those specifically named, herein, I hereby bequeath the sum of ONE DOLLAR ($1.00).”

Miller died before Decedent. After Decedent died, Tomlinson filed a petition for probate of the will and for letters of administration. Tomlinson argued that neither Miller’s son, Michael Jennings (“Jennings”), nor Miller’s grandchildren were entitled to inherit under the will because the will does not provide for them.

The probate court disagreed, and determined that Jennings was among those entitled to inherit the residue of Decedent’s estate as the issue of Miller, the predeceased residual beneficiary. The court determined that Decedent’s gift of the residue of her estate to Miller did not provide for a lapse if she did not survive decedent. The court determined the “omission did not ‘express an intention that the issue of [Miller] not succeed to her share.’”

A “lapse” occurs under a will when a bequest is made to a particular recipient and that recipient predeceases the testator (the person who wrote the will). For example, if A, the testator, makes a bequest that leaves property to B, and B predeceases A, then B is not alive to take the bequeathed property, and the gift “lapses.” In that situation, the law steps in to provide a reasonable approximation of what the testator probably would have wanted in the event that B did not live to take the bequeathed property, which is to provide that B’s descendants “step into the shoes” of B and take the property and prevent a “lapse” of the bequest ¿ an “anti-lapse” statute. If the testator really does intend for the bequest to lapse, it is easy enough to use language that prevents the operation of the anti-lapse statute: you use a bequest that says “to A if A survives me, and if A does not survive me, this bequest shall lapse.” With this language, the testator has made clear that the bequest should lapse and that the anti-lapse statute should not apply. Alternatively, if the testator wants to avoid a lapsed bequest and preclude application of the anti-lapse statute, the bequest can provide an alternative: “to A if A survives me, and if A does not survive me, then to B.” In either case, the testator has made clear what should happen if A does not survive the testator to take the bequest.

Probate Code section 21110, subdivision (a), provides that “if a transferee by wills fails to survive the transferor, ‘the issue of the deceased transferee take in the transferee’s place.’” Subdivision (b) states, “The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or substitute disposition.”

Section 21110 is an “anti-lapse” provision of the Probate Code. A case interpreting section 21110’s predecessor statute concluded that “[a]lthough a will may provide against the operation of this statue, the disinheritance clause . . . does not do so.” The clause in that case purported to exclude “only those claiming as heirs at law of the testator, while [plaintiff] relie[d] solely upon her status as the lineal descendant of [her mother] under” the anti-lapse statute. Persons who acquire rights under the anti-lapse statute “acquire such rights as ‘statute-made’ devisees or legatees” and these “rights are acquired regardless of whether such persons are or are not heirs of the testatrix.”

Another California case held that the prior anti-lapse statute must be read into a “will and is operative unless a contrary intention appears in the will itself.” In that case, the court concluded, “Although the testatrix could have provided against the operation of this statute . . . she did not expressly do so, and the language of her will did not indicate such intention.” The language of the will “sought to provide that no claim by an unmentioned relative would displace the specific gifts made to named relatives,” but there “was no expressed intention flatly to exclude the descendants of those legatees, per se.”

The court found that this prior California case law supports “the contention that exclusion of unmentioned heirs or relatives from the will’s dispositions, or an intent to disinherit those who contest those dispositions, does not sufficiently express or manifest an intent to arrest operation of the anti-lapse law following a legatee’s death.” The court stated that the past decisions “provide a guide for measuring the intent of testators whose wills have been drafted with presumptive knowledge of the cases and their interpretations.”

The “anti-lapse statue will not be applied where the testator has expressed, with sufficient clarity, a contrary intention.” The court found that was not the case here.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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