As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. The potentially harsh effects of this common law rule are ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator's grandparents, section 732.603 will "save" the lapsed gift by creating a substitute gift in the devisee's descendants. Because section 732.603 is in derogation of the common law, the courts must strictly construe its provisions.
The testator passed away with an estate consisting of a parcel of residential property in Hialeah. In 2009, the Testator's will was admitted to probate. The will provided for a bequest of the entire estate to her brother and brother-in-law in equal shares, and if either of them did not survive the testator, their share would be given to their surviving spouse. The brother and his spouse had predeceased the testator. Appellant brother in law filed a petition for construction of the will, arguing that the bequest to the brother had lapsed and that he, the brother in law, was entitled to an undivided interest in the property. The trial court found that the brother's share of the estate had passed to appellees, his children. The brother in-law appealed.
Did the trial court err in finding that the brother's share of the estate had passed to his children?
The court reversed the trial court's order, holding that the operation of the testator's will prevented any recovery by the niece and nephew. At the moment of the testator's death, her will provided for a bequest of 50 percent of the testator's estate to her brother; however, he predeceased the testator. The will also provided that in the event that the brother predeceased the testator, his share would pass to his wife. Thus, upon the death of the testator, the named devisee was the brother's wife. However, she also predeceased the testator. Pursuant to common law, the bequest lapsed. And because the wife is not a descendant of the testator's grandparents, the niece and nephew cannot invoke the operation of section 732.603(1) to "save" the bequest and provide them with a substitute gift. Thus, the niece and nephew are not entitled to the testator's lapsed bequest.