1997 Minnesota Statutes

     524.2-603 Antilapse; deceased devisee; class gifts. 

    (a)    Definitions.  In this section: 

    (1) "Alternative devise" means a devise that is expressly 
 created by the will and, under the terms of the will, can take 
 effect instead of another devise on the happening of one or more 
 events, including survival of the testator or failure to survive 
 the testator, whether an event is expressed in 
 condition-precedent, condition-subsequent, or any other form.  A 
 residuary clause constitutes an alternative devise with respect 
 to a nonresiduary devise only if the will specifically provides 
 that, upon lapse or failure, the nonresiduary devise, or 
 nonresiduary devises in general, pass under the residuary clause.

    (2) "Class member" includes an individual who fails to 
 survive the testator but who would have taken under a devise in 
 the form of a class gift by surviving the testator. 

    (3) "Devise" includes an alternative devise, a devise in 
 the form of a class gift, and an exercise of a power of 
 appointment. 

    (4) "Devisee" includes (i) a class member if the devise is 
 in the form of a class gift, (ii) an individual or class member 
 who was deceased at the time the testator's will was executed as 
 well as an individual or class member who was then living but 
 who failed to survive the testator, and (iii) an appointee under 
 a power of appointment exercised by the testator's will. 

    (5) "Surviving devisee" or "surviving descendant" means a 
 devisee or a descendant who neither predeceased the testator nor 
 is deemed to have predeceased the testator under section 
 524.2-702. 

    (6) "Testator" includes the donee of a power of appointment 
 if the power is exercised in the testator's will. 

    (b)    Substitute gift.  If a devisee fails to survive 
 the testator and is a grandparent or a descendant of a 
 grandparent of either the testator or the donor of a power of 
 appointment exercised by the testator's will, the following 
 apply: 

    (1) Except as provided in paragraph (4), if the devise is 
 not in the form of a class gift and the deceased devisee leaves 
 surviving descendants, a substitute gift is created in the 
 devisee's surviving descendants.  They take by representation 
 the property to which the devisee would have been entitled had 
 the devisee survived the testator. 

    (2) Except as provided in paragraph (4), if the devise is 
 in the form of a class gift, other than a devise to "issue," 
 "descendants," "heirs of the body," "heirs," "next of kin," 
 "relatives," or "family," or a class described by language of 
 similar import, a substitute gift is created in the surviving 
 descendants of any deceased devisee.  The property to which the 
 devisees would have been entitled had all of them survived the 
 testator passes to the surviving devisees and the surviving 
 descendants of the deceased devisees.  Each surviving devisee 
 takes the share to which each would have been entitled had the 
 deceased devisees survived the testator.  Each deceased 
 devisee's surviving descendants who are substituted for the 
 deceased devisee take by representation the share to which the 
 deceased devisee would have been entitled had the deceased 
 devisee survived the testator.  For the purposes of this 
 paragraph, "deceased devisee" means a class member who failed to 
 survive the testator and left one or more surviving descendants. 

    (3) For the purpose of section 524.2-601, words of 
 survivorship, such as in a devise to an individual "if he 
 survives me," or in a devise to "my children who survive me," 
 are a sufficient indication of an intent contrary to the 
 application of this section. 

    (4) If the will creates an alternative devise with respect 
 to a devise for which a substitute gift is created by clause (1) 
 or (2), the substitute gift is superseded by the alternative 
 devise only if an expressly designated devisee of the 
 alternative devise is entitled to take under the will. 

    (c)    More than one substitute gift; which one takes.  
 If, under paragraph (b), substitute gifts are created and not 
 superseded with respect to more than one devise and the devises 
 are alternative devises, one to the other, the determination of 
 which of the substitute gifts takes effect is resolved as 
 follows: 

    (1) Except as provided in clause (2), the devised property 
 passes under the primary substitute gift. 

    (2) If there is a younger-generation devise, the devised 
 property passes under the younger-generation substitute gift and 
 not under the primary substitute gift. 

    (3) In this paragraph: 

    (i) "Primary devise" means the devise that would have taken 
 effect had all the deceased devisees of the alternative devises 
 who left surviving descendants survived the testator. 

    (ii) "Primary substitute gift" means the substitute gift 
 created with respect to the primary devise. 

    (iii) "Younger-generation devise" means a devise that (A) 
 is to a descendant of a devisee of the primary devise, (B) is an 
 alternative devise with respect to the primary devise, (C) is a 
 devise for which a substitute gift is created, and (D) would 
 have taken effect had all the deceased devisees who left 
 surviving descendants survived the testator except the deceased 
 devisee or devisees of the primary devise. 

    (iv) "Younger-generation substitute gift" means the 
 substitute gift created with respect to the younger-generation 
 devise. 

    HIST: 1975 c 347 s 22; 1986 c 444; 1994 c 472 s 50