75-2-603 - Definitions -- Antilapse -- Deceased devisee -- Class gifts -- Substitute gifts.
75-2-603. Definitions -- Antilapse -- Deceased devisee -- Class gifts -- Substitutegifts.
(1) As used in this section:
(a) "Alternative devise" means a devise that is expressly created by the will and, underthe terms of the will, can take effect instead of another devise on the happening of one or moreevents, including survival of the testator or failure to survive the testator, whether an event isexpressed in condition-precedent, condition-subsequent, or any other form. A residuary clauseconstitutes an alternative devise with respect to a nonresiduary devise only if the will specificallyprovides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general,pass under the residuary clause.
(b) "Class member" includes an individual who fails to survive the testator but whowould have taken under a devise in the form of a class gift had he survived the testator.
(c) "Devise" includes an alternative devise, a devise in the form of a class gift, and anexercise of a power of appointment.
(d) "Devisee" includes:
(i) a class member if the devise is in the form of a class gift;
(ii) an individual or class member who was deceased at the time the testator executed hiswill as well as an individual or class member who was then living but who failed to survive thetestator; and
(iii) an appointee under a power of appointment exercised by the testator's will.
(e) "Stepchild" means a child of the surviving, deceased, or former spouse of the testatoror of the donor of a power of appointment, and not of the testator or donor.
(f) "Surviving devisee" or "surviving descendant" means a devisee or a descendant whoneither predeceased the testator nor is considered to have predeceased the testator under Section75-2-702.
(g) "Testator" includes the donee of a power of appointment if the power is exercised inthe testator's will.
(2) If a devisee fails to survive the testator and is a grandparent, a descendant of agrandparent, or a stepchild of either the testator or the donor of a power of appointment exercisedby the testator's will, the following apply:
(a) Except as provided in Subsection (2)(d), if the devise is not in the form of a class giftand the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee'ssurviving descendants. They take per capita at each generation the property to which the deviseewould have been entitled had the devisee survived the testator.
(b) Except as provided in Subsection (2)(d), 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 iscreated in the surviving descendant's of any deceased devisee. The property to which thedevisees would have been entitled had all of them survived the testator passes to the survivingdevisees and the surviving descendants of the deceased devisees. Each surviving devisee takesthe share to which he would have been entitled had the deceased devisees survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee takeper capita at each generation the share to which the deceased devisee would have been entitledhad the deceased devisee survived the testator. For the purposes of this Subsection (2)(b),"deceased devisee" means a class member who failed to survive the testator and left one or more
surviving descendants.
(c) For the purposes of Section 75-2-601, words of survivorship, such as in a devise to anindividual "if he survives me," or in a devise to "my surviving children," are, in the absence ofclear and convincing evidence, a sufficient indication of an intent contrary to the application ofthis section.
(d) If the will creates an alternative devise with respect to a devise for which a substitutegift is created by Subsection (2)(a) or (b), the substitute gift is superseded by the alternativedevise only if an expressly designated devisee of the alternative devise is entitled to take underthe will.
(e) Unless the language creating a power of appointment expressly excludes thesubstitution of the descendants of an appointee for the appointee, a surviving descendant of adeceased appointee of a power of appointment can be substituted for the appointee under thissection, whether or not the descendant is an object of the power.
Amended by Chapter 324, 2010 General Session