Survival of the Words of Survivorship: Gibney v. Hossack Affirms the Prevailing Understanding of Anti-Lapse Statute

by Stephanie Klinkenberg-Ramirez and Ainsley Tucker

Much of probate law deals with the challenges of discerning the true intentions of someone who has died. Sometimes, those intentions are clear. A well-drafted will or trust can leave all parties confident about the disposition of property described therein. However, estate planners and courts must sometimes supplement the explicitly stated intent in a person’s will to distribute that person’s property. Many probate laws, including the Uniform Probate Code and Massachusetts’ adopted version (the “MUPC”), have evolved largely to clarify exactly when the will’s words are considered clear and when default rules apply.

Anti-lapse statutes function as default rules when a gift made under a will cannot pass to its stated recipient because the recipient dies before the will’s author. Courts and legislatures have long wrestled with when anti-lapse statutes should apply to an incomplete set of instructions in a will and when the words in the will are enough to avoid application of the anti-lapse statute.

Gibney v. Hossack, 494 Mass. 767 (2024), is the latest case to enter this much litigated area of probate law. The case’s central legal issue is whether the so-called “words of survivorship” in a bequest (to my mother, if she survives me) are sufficient to avoid application of Massachusetts’ anti-lapse statute.     

Anti-lapse Statutes

An anti-lapse statute is a default rule that supplies an assumed intention of a testator (the will’s author) when she does not specify how a gift (sometimes called a “bequest” or “devise”) in a will should pass if the intended recipient (the “devisee”) does not survive the testator. In this situation, the gift “lapses”.

If the testator has designated a backup devisee who can take the gift, then her intention about who should receive the lapsed gift is clear. If the testator has not designated a backup devisee, the question becomes who should receive the gift. At common law, a lapsed gift would pass into the residue, or remainder, of the testator’s estate, to be distributed to the residuary beneficiaries. Anti-lapse statutes arose to provide a different default rule, namely, that the lapsed gift passes to the devisee’s descendants. The anti-lapse default assumes that the testator would not have intended to disinherit a line of descent. Restatement (Third) of Property: Wills and Other Donative Transfers § 5.5 comment f, at 383. Most anti-lapse statutes limit the availability of this default rule to the testator’s close relations.

At issue in Gibney v. Hossack was whether the provisions of Massachusetts’ anti-lapse statute should apply if a devise is conditioned upon survival of the devisee by words of survivorship, i.e., “if she survives me”. The vast majority of jurisdictions do not apply an anti-lapse statute if words of survivorship are present. In these jurisdictions, the words of survivorship are considered sufficient demonstration that the testator intended for a lapsed gift to pass to the residuary. In a few minority jurisdictions, notably Connecticut, words of survivorship are not sufficient to avoid the application of its anti-lapse statute. However, this minority interpretation appears at odds with modern practitioners’ understanding of anti-lapse statutes.

Massachusetts Anti-Lapse Statute  

The Commonwealth’s anti-lapse statute is codified in section 2-603 of the MUPC and provides as follows:

If a devisee who is a grandparent or a lineal descendant of a grandparent is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree than those of more remote degree take per capita at each generation. A person who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

Section 2-601 of the MUPC provides that the rules of construction in Part 6 of the MUPC (which contains the anti-lapse statute) only apply “[i]n the absence of a finding of a contrary intention shown by the terms of the will . . . .”  Thus, if the will shows that the testator intended for a devise to lapse if the devisee did not survive the testator, the anti-lapse provisions of section 2-603 would not apply.

The MUPC was enacted in 2009. The anti-lapse statute in the Uniform Probate Code at that time provided, and today still provides, that “words of survivorship, such as in a devise to an individual ‘if he [or she] survives me,’ or in a devise to ‘my surviving children,’ are not, in the absence of additional evidence, a sufficient indication of intent contrary to the application of [the anti-lapse statute].”  Uniform Probate Code § 2-603(b)(3) (Unif. Law Comm’n 2010). Massachusetts rejected this provision, electing instead to adopt the version of the anti-lapse statute from the pre-1990 Uniform Probate Code appearing there in section 2-605. This rejection was in line with what many practitioners understood to be the case, that phrases such as “if she survives me” sufficiently show that the devise was meant to lapse if the devisee did not survive the testator.

Case Facts 

Heather Hossack (“Heather”) died in March 2019. She was unmarried and did not have children. She was predeceased by her parents, but survived by her brother, John Hossack (“John”), and her long-term partner, Donald Etchison (“Etchison”). Heather had signed a will three years prior to her death, in which she named her neighbor and long-time friend, Thomas Gibney (“Gibney”), as her personal representative.

In her will, Heather left the assets held in certain accounts to her mother, the assets held in certain other accounts to her brother, John, her tangible personal property and real property to Etchison, and the residue of her estate to Gibney. Heather’s bequests to her mother and brother included the phrases “if she survives me” and “if he survives me,” respectively, whereas the devises to Etchison and Gibney were “per stirpes.”

After Heather’s death, counsel for her estate informed John that, because their mother had predeceased Heather, the devise to their mother had lapsed, and the assets held in the accounts bequeathed to her mother would pass with the residue of Heather’s estate to Gibney. John believed that the anti-lapse statute required the failed bequest to his mother to pass to him instead and challenged the counsel for the estate’s interpretation of the will.

The Probate and Family Court allowed summary judgment in favor of the estate’s interpretation of the will, specifically that the devise to Heather’s mother failed and passed to the residuary estate. John appealed, and the Massachusetts Supreme Judicial Court took up the case on its own motion.

SJC Opinion 

The Court held that use of the language “if she survives me” by a testator in a devise to an individual indicates the contrary intention contemplated in section 2-601 of the MUPC to avoid the application of the anti-lapse statute. The Court found that Heather’s use of that phrase in her devise to her mother evinced that Heather “had the foresight to consider that the devisee — [] her eighty-five year old mother — might predecease her and, upon such consideration, conditioned the devise upon the devisee’s survival.”  Gibney, 493 Mass. at 772.

To support its conclusion, the Court cited the Massachusetts Legislature’s rejection of section 2-603(b)(3) of the UPC, the provision described above that provides that the phrase “if she survives me” alone is insufficient to avoid application of the anti-lapse statute. The Court found the Legislature’s omission of that provision in the MUPC to be “purposeful.”  Id. at 773. The Court also cited numerous secondary sources demonstrating the prevalent understanding among Massachusetts practitioners to be that language such as “if she survives me” is sufficient to avoid application of the anti-lapse statute.

Importantly, the Court did not focus solely on the phrase “if she survives me” in interpreting the testator’s intent. The Court highlighted Heather’s close relationship with Gibney, whom she had named as her primary health care proxy and the personal representative of her estate, and to whom she left her residuary estate. The Court also focused on the age of Heather’s mother, who was in her eighties, and Heather’s use of different language (“per stirpes”) in her devises to Etchison and Gibney. This context influenced the Court’s finding that Heather intentionally included the phrase “if she survives me” in the devise to her mother and intended for the devised assets to pass to her residuary estate if her mother did not survive her.

Implications 

Happily, for Massachusetts’ estate planners, the Court’s decision formalizes further the general understanding that words of survivorship alone are sufficient to defeat Massachusetts’ anti-lapse statute. As such, Massachusetts remains part of the majority of jurisdictions that take this approach.

Practitioners should still be advised to create a full disposition for every bequest that passes under a will or trust (“to my mother, if she survives me, or if not, to be distributed as part of the residue of my estate”), and should not consider words of survivorship as boilerplate, but rather as dispositive words with real consequences as to the testator’s intended disposition.

Stephanie Klinkenberg-Ramirez is a senior associate at Choate, Hall & Stewart LLP in the Wealth Management Group.

Ainsley Tucker is an associate at Choate, Hall & Stewart LLP in the Wealth Management Group.