Lapse and Mistake

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