Void or Lapsed Devises
What To Do With Old Wills
Updating your estate plan every few years, and particularly after a big life event (such as death, divorce, having a child, etc.), is most often an estate planner’s recommendation. That being said, people do not always follow those recommendations. Sometimes wills which are 10 or more years old are brought in by a client seeking to open up a probate. These old wills run the risk of being obsolete or stale because the devises therein are lapsed or, similarly, void. Both lapsed and void wills are treated the same under Florida Law.
A lapsed devise is one when the devisee (the one to receive the bequest under the will) dies before the testator. Florida has an anti-lapse statute to address this situation.
Of course, there are different kinds of devises: specific devises (such as a specific item, like a ring or watch), a general devise (such as a particular sum of money, like $20,000, which comes from the estate), and a residuary devise (meaning what is left over after everything else is paid).
The statute on point is Fla. Stat. 732.603 which provides, in relevant part:
(1) Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator:
(a) Is dead at the time of the execution of the will;
(b) Fails to survive the testator; or
(c) Is required by the will or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.
A void devise is treated the same as a lapsed devise and occurs when the named recipient of a devise in a will is dead before the will is executed. While this may happen less now than previously with the efficiency of communication, including electronic means and social media, this may come into play if a devise is left to someone with whom you do not keep in close contact.
Importantly, and more complex, are lapsed and void devises associated with a trust, which implicate a different statute from the trust code than that discussed herein. Both wills and trusts can be drafted in such a way to permit contingent beneficiaries. That being said, it is wise to revisit your estate plan every so often to be sure it is up to date. Should you have questions regarding particular devises in a will, whether in looking to have your own will drafted or in looking at a deceased loved one’s will, you should consult with your trusted estate lawyer.