New York Multistate Bar (MBE) Practice Exam

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Under anti-lapse, if the beneficiary has issue, the gift is saved and passes to the beneficiary's issue by representation. Which statement is true about this doctrine?

It goes to the beneficiary's issue It lapses It goes to the testator's heirs by intestacy It is void

Correct Answer:

It goes to the beneficiary's issue

Explanation:

Anti-lapse prevents a gift from failing when the named beneficiary dies before the testator but leaves issue who survive the testator. In that situation, the gift is saved and passes to the beneficiary’s issue by representation (per stirpes). So the statement that the gift goes to the beneficiary’s issue is true because the anti-lapse statute substitutes the beneficiary’s descendants for the deceased beneficiary. This keeps the gift from going to the testator’s heirs by intestacy or from being void; it instead reallocates to the beneficiary’s issue. The gift would only fail to be saved if there were no such issue.

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