Lacis v. Lacis, 355 S.W.3d 727 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.).



Anti-Lapse Statute        


Testator’s will left property to two of his children who predeceased Testator but who had descendants who survived Testator (Testator’s grandchildren).  Testator’s grandchildren asserted that the lapsed property passed to them because of Probate Code § 68, the anti-lapse statute.  However, Wife claimed that she was entitled to this property as the beneficiary of the residual clause.  The trial court awarded the property to the grandchildren and the appellate court reversed.


The appellate court held that the anti-lapse statute did not apply because Testator’s will specifically provided that lapsed gifts were to pass under the residuary clause.  The key language provided that “the term ‘residuary estate’ means all property in which I may have any interest (including lapsed gifts) which is not disposed of by other than the [residuary clause].”  The court rejected the grandchildren’s argument that the term “lapsed gifts” referred only to gifts not saved by the anti-lapse statute.  The court also recognized that no prior Texas case dealt with whether this type of language in a residuary clause would negate the application of the anti-lapse statute.  Thus, the court examined cases in other states and found that the vast majority of them support Wife’s claim.


Moral:  Language in the residuary clause including within its scope lapsed gifts will prevent the application of the anti-lapse statute.