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What Happens To The Devisee’s Gift In A Will If He Or She Predeceases The Testator In Michigan?

by | Feb 7, 2022 | Wills, Trusts And Estates |


A person in Michigan can make a last will and testament and leave his estate to any individuals that he or she chooses.  There is no requirement that his or her estate assets must be left to a relative.  Gifts can be made to stepfamily members, next-door neighbors, friends, acquaintances or even the mailman.  Probate courts and personal representatives have the duty to ensure that the decedent’s wishes in a valid will are carried out to the greatest extent possible.

What happens if a gift is left to someone that dies before the decedent?  Does the gift completely fail, or does it move on to someone else?  Michigan’s Estate and Protected Individuals Code provides a process for “substitute gifts” in the event that certain devisees pass away before the testator.

The anti-lapse statute (MCL 700.2603) provides as follows:

(1) If a devisee fails to survive the testator and is a grandparent, a grandparent’s descendant, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator’s will, the following apply:”

  • (a) Except as provided in subdivision (d), 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. Those surviving descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.”
  • (b) Except as provided in subdivision (d), 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 to a class described by language of similar import, a substitute gift is created in the surviving descendants of a deceased devisee. The property to which the devisee would have been entitled had all class members survived the testator passes to the surviving devisees and the deceased devisees’ surviving descendants. Each surviving devisee takes the share to which he or she 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 subdivision, “deceased devisee” means a class member who fails to survive the testator and leaves 1 or more surviving descendants.”
  • (d) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by subdivision (a) or (b), 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.”

The anti-lapse statute ONLY applies to three groups of devisees:

  • Grandparents of the decedent, both paternal and maternal.
  • Descendants of the decedent’s grandparents, which include the decedent’s parents, siblings, nieces and nephews, uncles and aunts, first cousins, or any of their children. All of the descendants of the decedent (e.g. children, grandchildren or great-grandchildren) would be included.
  • Stepchildren of the decedent. “Stepchild” means “a child of the surviving, deceased or former spouse of the testator or of the donor of a power of appointment, who is not the testator’s or donor’s child.”  MCL 700.2601(e).  It does not matter if the stepchild’s parent who was the spouse of the decedent was divorced or deceased at the time of death.

If a devisee is not from one of these groups and predeceases the testator, then the gift fails completely.

In general, a “class gift” refers to “[a] gift to a group of persons, uncertain in number at the time of the gift but to be ascertained at a future time, who are all to take in definite proportions, the share of each being dependent on the ultimate number in the group.” Black’s Law Dictionary (10th ed.).  If a devisee who died was entitled to a gift and he or she was not part of a class gift, then the anti-lapse provision kicks in and the devisee’s survivors are entitled to get the gift instead.

There may also be gifts made to devisees that appear to be made to a “class” when it really is just a group of individuals.  If the class is defined in very indefinite terms such as “heirs”, “relatives” or “descendants”, then no substitute gift will be made and the class gift will simply be divided among the survivors of the class.  However, a class that is defined in explicit terms where membership is clear could make the devisees within that group eligible for their survivors to inherit.  An eligible class, for example, would include language that specifically mentions all of the decedent’s siblings, all of the decedent’s grandchildren, or all of the children of a particular person (e.g. Uncle Bob’s sons and daughters).  If a member of an eligible class died, then the other devisees would still receive their share but the deceased devisee’s share would move on to his or her survivors.  The exception to this rule, however, is if the last will and testament explicitly provides for an alternate devisee to receive the gift as a substitute if the primary devisee dies.  The plain language of the will trumps the anti-lapse statute.

Whether a gift is intended for a group of individuals or is truly a class gift depends on the intent of the testator.  “The decisive inquiry is whether or not the testator, in making the particular gift in question, did so with ‘group-mindedness,’ whether, in other words, he was looking to the body of persons in question as a whole or unit rather than to the individual members of the group as individuals.”  In re Brown’s Estate, 324 Mich 264, 267; 36 NW2d 912 (1949).

Intent can be difficult to determine if the last will and testament is not clear.  However, there are some factors that the probate court would consider when determining if a gift is for individual beneficiaries rather than a class:

  • The fact that beneficiaries are identified by name—even if they constitute a natural class—is generally seen as indicative of an intent to make a gift to the beneficiaries individually as opposed to creating a class. In re Brown’s Estate, 324 Mich 264, 267; 36 NW2d 912 (1949).
  • Whether or not the will contains survivorship language, requiring a beneficiary to survive to inherit. Generally, the absence of survivorship language supports a finding of individual bequests.  Cattell v Evans, 301 Mich 708, 711; 4 NW2d 67 (1942).
  • The intent for individual gifts rather than class gifts can be inferred from whether the beneficiaries share common attributes, whether the group is defined to eject or to admit others, and whether the will intentionally omits anyone from inheriting. In re Hunter’s Estate, 212 Mich 380, 383; 180 NW 364 (1920).
  • The intent for individual gifts may be supported by language that divides an estate into specific shares for distribution, such as when the testator leaves “equal shares” to named remaindermen. In re Coots’ Estate, 256 Mich 208, 211-212; 234 NW 141 (1931).
  • The intent for a class gift may be supported by language in the will that a devise be divided ‘share and share alike’ indicates the testator’s intent to create an equal division among the members of the class, whose members are usually related to the testator in equal degrees, using a per capita distribution.” In re Estate of Raymond, 276 Mich App 22, 29; 739 NW2d 889 (2007).

In Dietrich v Dietrich (In re Estate of Dietrich) 2017, the decedent Eugenie Dietrich bequeathed her entire estate in her last will and testament as follows:

  • “In the event of the death of Rudi H. Dietrich, my husband, before my death, then and in that case I give, devise and bequeath all the rest and residue of my property, both real and personal, of whatsoever kind and nature it may be, that I may die possessed of, to Peter R. Dietrich and Johann H. Dietrich, my sons, to be divided between them in equal shares, share and share alike.”

Eugenie died in 2014, but was predeceased by her husband Rudi and son Johann which left Peter as the sole surviving child.  Johann had two surviving children.  Peter filed a petition to the probate court asking for an interpretation of the will.  He argued that the bequest was a “class gift” to the “sons”, so as the only surviving member of that class, Peter should inherit the entire estate.  Johann’s children argued that the will did not make a class gift but rather designated Johann and Peter as individual beneficiaries.  The probate court found that there was no class gift and agreed with Johann’s children.  Peter appealed.  The Michigan Court of Appeals found that the anti-lapse statute applied since the will mentions the sons Peter and Johann individually and that no alternative devise was provided if one of the sons died.  “Given her failure to provide for such a contingency, it must be concluded that Eugenie intended for any future eventualities to be taken care of by the law.”  Under this last will and testament, the devisee’s survivors were entitled to inherit since Johann was named individually.

Determining what happens to a deceased devisee’s share is subject to legal interpretation of the will, the intent of the testator and other facts and circumstances.  The application of the anti-lapse statute can be confusing, but a skilled probate lawyer can help you understand your rights and fight for the best possible outcome for you.

If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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