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SJC Finds Words of Survivorship Sufficient to Avoid Anti-Lapse Statute

Does the phrase “if they survive me” demonstrate a testator’s intent to avoid the Massachusetts Uniform Probate Code (“MUPC”) anti-lapse statute, Massachusetts General Laws Chapter 190B § 2-603? The Massachusetts Supreme Judicial Court (SJC) recently answered that question “yes” in Gibney v. Hossack, 493 Mass. 767 (2024) (“Gibney”). 

In Gibney, the testator (“Heather”) executed a will that devised certain trust accounts to her mother, other trust accounts to her brother, and the residuary estate to her longtime friend, Thomas Gibney.  Heather had no children and was never married, though she did have a long-term partner, Donald Etchison, to whom she left her tangible personal property and real property. Unlike the devises to Heather’s mother and brother, which were expressly conditioned on each beneficiary surviving her, the devises to Gibney and Etchison were “per stirpes,” meaning that the device would pass to their heirs if they predeceased Heather. 

At the time Heather died, so too had her mother. Accordingly, after the will was admitted to probate, counsel for the estate informed her brother, John, that, because their mother predeceased Heather, her devise lapsed and the trust accounts fell instead to the beneficiary of the residuary estate, Gibney.  John disagreed, contending that Massachusetts’ anti-lapse statute entitled him to their mother’s share of the inheritance.  To resolve the dispute, Gibney sought a declaration from the Probate Court that Heather’s use of the phrase “if she survives me” in connection with her devise to her mother evidenced an intent to avoid the anti-lapse statute. 

Following a hearing in the Essex Division of the Probate and Family Court Department, the judge issued a declaration in Gibney’s favor. John appealed and, before the Appeals Court could reach a decision, the SJC transferred the case to its docket on its own motion.

On appeal, the SJC considered whether, pursuant to the MUPC, the inclusion of survivorship language (“if she survives me”) in a testamentary bequest is a sufficient indication of a testator’s intent to avoid the anti-lapse statute. The SJC started by explaining that the anti-lapse statute is a default rule, meaning that it applies because, and only to the extent that, the testator failed to address the issue explicitly in a will. In other words, the anti-lapse statute “fills in the testator's missing intent with a presumption against disinheritance of certain lineal descendants, allowing the devisee's living issue to take in the devisee's stead.” Under the MUPC, this default rule applies unless the will discloses a contrary intention. 

Applying these principles, the SJC determined that, if the anti-lapse statute governed Heather’s will, then the mother’s lapsed bequest would fall to John. If, however, the anti-lapse statute did not apply, then the mother’s gift would fall to the residuary estate devised to Gibney. The answer turned on whether the phrase "if she survives me” demonstrated a "contrary intention shown by the terms of the will." Finding that such language sufficient to show Heather’s intent to avoid the anti-lapse statute, the SJC declined to apply it and, instead, affirmed the Probate Court’s ruling that the assets go to Gibney.

The Takeaway: In order to avoid the question of whether a devise lapses under the Massachusetts anti-lapse statute if the beneficiary predeceases the testator, words of survivorship, like the “if-she-survives-me” language in this case, should be used.


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