The Rev. Raymond C. O’Brien, Professor Emeritus of Law, recently published an article in Volume 48, Number 3, of The American College of Trust and Estate Counsel (ACTEC) Law Journal. The goal of Fr. O’Brien’s article, entitled “Proposing a Model Antilapse Clause,” is not to propose a model statute but is instead to equip estate planners with three different clauses to offer clients options, with an avoidance of perplexing alternatives.

The ACTEC Law Journal is a unique, high-level academic journal that not only explores tax, trust, and estate topics in depth, but deals with the practical consequences and applications of the rapidly changing rules in these areas of law.

Below is the first paragraph of the abstract. Click here to view the article.

Abstract

The complexity of state antilapse statutes exacerbates the task of many estate planners seeking to give prudent expression to the postmortem wishes of a client. These statutes vary as to which predeceasing beneficiaries they should apply, who should be the substitute takers to benefit instead of these lapsed beneficiaries, and how to treat beneficiaries who are treated as predeceasing because of renunciation agreements, final decrees of divorce, or, when the beneficiary kills, exploits, or abuses the one from whom the beneficiary would take. Within the modern statutory framework, there exists an abundant array of testamentary devices by which a transferor may transfer property to a transferee, both at death and during lifetime. Wills are traditionally relied upon, but an arsenal of nonprobate contractual transfers, increasingly including revocable intervivos trusts, has developed over the last fifty years. Should antilapse apply to all of these transfer methods?