In this post, I discuss the anti-lapse statute, how it affects a bequest to someone who predeceases you, and how it can save an impossible will provision.
At common law, a bequest could lapse. This meant that if your will specified that a portion of your property was to be left to an individual that ultimately predeceased you, that bequest would fail and revert back to your estate. It would then be disposed of according to your will’s instructions for your residuary estate, or, if your will did not include a provision disposing of your residuary estate, that bequeath would pass as it would have had you died without a will.
Arkansas’s anti-lapse statute, however, seeks to save the bequest. The anti-lapse statute, as the name suggests, provides that a bequest in most circumstances cannot lapse. So, if the will does not specify what should happen if the beneficiary of a bequest predeceased the testator, rather than reverting back to the testator’s estate, it will generally pass to the beneficiary’s heirs. This effectively “saves” the bequest.
So, for example, say you stated in your will that your son was to inherit your baseball card collection and your brother was to inherit the residue of your estate. If your son dies and you fail to update your will, under common law, your bequest to your son would lapse, bringing your baseball card collection into your residuary estate. Since your brother is the beneficiary of the residue of your estate, he would inherit the baseball card collection. Under the anti-lapse statute, however, your son’s heirs would inherit the baseball card collection, not your brother.
As an important note, Arkansas’s anti-lapse statute only saves bequests to the testator’s descendant. Gifts to non-descendants, such as brothers, cousins, or friends, will pass to the residuary estate.
The existence of the anti-lapse statute will most likely be a moot point if you plan properly. A carefully drafted will should provide for contingent beneficiaries, giving instructions as to what should happen to any bequests in the event the beneficiary predeceases you. Should you so desire, you can even direct in your will that the anti-lapse statute should not apply.