A gift is said to have lapsed when it fails for want of a beneficiary. When a gift cannot be given because all of the named beneficiaries, including contingent beneficiaries, have either died or disclaimed the gift, the gift will lapse (unless the anti-lapse statute applies). A lapsed gift is treated as though the testator had not made the gift at all, and the property from the gift is instead distributed with the residue of the estate. If the gift that lapsed is itself a gift of the residue, partial intestacy may result, and the gift may instead pass under the laws of descent and distribution in intestacy.
The anti-lapse statute1 operates to prevent certain gifts from lapsing. If a gift to a beneficiary is not conditioned on the beneficiary surviving, the beneficiary does in fact fail to survive (or disclaims the gift), the beneficiary is a descendant of the testator’s grandparents, and the beneficiary has surviving descendants, then the anti-lapse statute prevents the gift from lapsing. Instead, the beneficiary’s surviving descendants will receive the gift in their parent’s place, taking it by right of representation.
A testator should consider the effects of lapse and the anti-lapse statute when writing gifts in a will and should be especially careful to include enough contingent beneficiaries for gifts of the residue to prevent gifts of the residue from lapsing.