Heirs And Omissions – Part II


Legatees are persons or entities who take under a will. That status seems relatively straightforward, except when the person or entity does not survive the testator.

Individuals. The Illinois Anti-Lapse Statute is contained in §4-11 of the Probate Act. It does not contain the term “anti-lapse,” but that is its more common nickname. The section provides that if a legatee dies before the testator and if the legatee is a descendant of the testator, the bequest passes down the line of descent per stirpes (although that term is not used). Gifts to children, for example, will descend to grandchildren, great-grandchildren, and so on. Gifts to anyone else do not descend. For example, a gift to a brother will “lapse” and will pass instead to others.

Note the difference between “heirs” and “legatees.” For descendants, the rules are the same. For non-descendants, however, in determining legatees, you do not keep going down the line of descent, but you stop with any person who is deceased.

Other entities. The best examples of “other entities” are charities. What happens if the charity has changed its name, merged with a different organization, etc., and no longer matches the description in the will? The doctrine of cy pres allows a Court to substitute a different charity where the testator states a “general charitable intent,” but the Court may not apply the doctrine where the testator did not express such general intent, and the bequest lapses instead.

The Illinois Attorney General (Charitable Gifts Division) is charged with enforcement of the Illinois Charitable Trusts Act and has exclusive jurisdiction to enforce and construe charitable trusts. The purpose of that Act is to assist the Attorney General in carrying out his common law powers and duties to enforce charitable trusts and to see to application of their funds for their intended charitable uses. In effect, the Attorney General represents the public and is a necessary party to certain proceedings.

Practical Suggestion

As usual, the best way to avoid these problems is at the drafting stage. For every gift, spell out if the bequest descends or not. If the bequest is to descend, specify that the gift is per stirpes or state clearly how the gift is to descend. If the gift is not to descend, say so and provide alternate legatees. Any property left without a taker will either pass under the residuary clause of the will or by intestacy. I have seen wills without residuary clauses, where partial intestacy resulted.

For charities, provide what will happen to the bequest if the charity no longer exists at the time of the testator’s demise. Will it pass to the charity’s successors? Will it pass instead to some other charity or charities? In order to invoke cy pres, you may want to make a statement of the testator’s general charitable intent. You may want to give the executor discretion to select substitute charities, either with one or more stated purposes or solely within the discretion of the Executor.

Make the sure the question is addressed and answered for every bequest. If litigation ensues over these issues, that litigation may be very costly, and fingers may be pointed at the attorney who drafted the will. Don’t let that attorney be you.

© 2000 by Cary A. Lind, all rights reserved