Skip to main contentSkip to navigation
Law Office of Catherine R. Mack
Law Office of Catherine R. Mack

Contact Us for a Consultation

Fill out our online form

Menu
  • Home
  • About Us
    • Catherine R. Mack
    • Lisa Chernikoff
  • Services
    • Estate Planning
    • Estate & Gift Taxation
    • Retirement Planning
    • Elder Law
    • Probate Law
    • Probate Disputes
  • Testimonials
  • Forms
  • Articles
  • FAQ
  • Contact Us

For More Information

  • By submitting this form I understand that contacting the firm through the website does not start an attorney/client relationship

Home » Lapse and Mistake

Lapse and Mistake

Posted By
Catherine R. Mack
Tweet

One of the main purposes for making and leaving a will is to guide the administration of the estate of the testator--the person who made the will. A will should be written in language that is clear and indisputable. Alas, the language in a will may be unclear or vague. This article discusses the will interpretation and construction issues of lapse and mistake.

Lapse

If a beneficiary named in a will is dead when the will is made, the gift to the beneficiary is ignored as being of no effect. The property in the gift becomes part of the residuary estate. The residuary estate is disposed of according to the will's residuary clause, if any. If there is no residuary clause, the residuary estate is disposed of as if there were no will.

As a general rule, if a beneficiary named in a will is alive when the will is made but dies before the testator, the gift to the beneficiary fails. This occurrence is known as lapse. If the lapse is not prevented by a state anti-lapse statute, and if the will does not provide another disposition of the property in the lapsed gift, the property in the lapsed gift is disposed of according to the will's residuary clause, if any. If there is no residuary clause, the residuary estate is disposed of as if there were no will.

If a beneficiary disclaims or renounces a gift, the disclaimer or renunciation is treated as a lapse.

Mistake

A major reason for interpretation or construction of a will is dealing with an apparent mistake or what is arguably a mistake. The mistake may be made either by the testator, by the testator's attorney, or by the attorney's assistants.

Suppose it is claimed that a provision was omitted from the will by mistake. As a general rule, the probate court will set aside the claim. There is a presumption that a will executed with the appropriate formalities contains all the provisions the testator intended. On the other hand, if it is claimed that a provision was included in the will by mistake, the probate court may hear evidence regarding the intent of the testator and ignore the provision if it is proven to be a mistake.

If the intent of the testator is clear and there appears to be a clerical mistake, most courts will either ignore the mistake or reform the will, as appropriate. Otherwise, most courts are reluctant to correct alleged errors. Even if a testator has made a "mistake" in his or her will, the will is still by definition the testator's declaration of the testator's testamentary intent.

Categories: Wills

For More Information

  • By submitting this form I understand that contacting the firm through the website does not start an attorney/client relationship

About Cathy Mack

Catherine R. Mack's Profile Image
Catherine R. Mack
I am an estate planning and estate litigation attorney who has been practicing law for many years. Based in Bethesda, Maryland, I work with clients in Montgomery County and throughout Maryland, the District of Columbia, and Virginia. My practice focus is 1) estate planning (wills, trusts and ancillary documents), 2) probate (the publication and effectuation of a Will through the local court) and 3… Read More

Read More About Cathy

Recent Articles

What not to do when leaving a home to an heir - The Washington Post , Feb. 22, 2020
By Ilyce Glink and Samuel J. Tamkin Feb. 19, 2020 at 6:00 a.m. EST Q: I just read your column giving suggestions to an elderly mother who wanted to make sure her daughter received her home at death without probate. I’m a retired attorney, and I don’t know how many times I was asked the same question by clients over the years. There’s one thing that you didn’… Read More

Read More Articles

Contact Us

Google Map of Law Office of Catherine R. Mack’s Location
Law Office of Catherine R. Mack
Bethesda Crossing
7315 Wisconsin Avenue
Suite 800 West
Bethesda, Maryland 20814
Phone: (301) 961-8590
Fax: (301) 961-6599
Email:

Our offices are located in the former Air Rights Center, now called Bethesda Crossing

© 2025 Law Office of Catherine R. Mack
View Our Disclaimer | Privacy Policy
Law Firm Website Design by The Modern Firm

Copyright © 2025 Law Office of Catherine R. Mack
We are available...but working remotely

My law office in Bethesda is physically closed right now and so I am not taking new clients at this time. For my existing clients, I am working remotely from Virginia. If you need to reach me or my assistant Lisa, please use my email at cmack@cathymacklaw.com or Lisa’s email at admin@cathymacklaw.com. Or leave a phone message at 301.961.8590. Stay safe and secluded in these difficult times.