GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
Judiciary II Committee Substitute Adopted 3/24/99
Short Title: New Lapse Statute. (Public)
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AN ACT TO MAKE NORTH CAROLINA'S LAPSE STATUTE LESS RESTRICTIVE.
The General Assembly of North Carolina enacts:
Section 1. G.S. 31-42 reads as rewritten:
"§ 31-42.
Failure of devises and legacies by
lapse or otherwise; renunciation.
(a) Unless a contrary intent is indicated by
the will, where a devise or legacy of any interest in property is given to a
person as an individual or as a member of a class and the person dies survived
by qualified issue before the testator dies, then the qualified issue of such
deceased person that survive the testator shall represent the deceased person,
and the entire interest that the deceased person would have taken had he survived
the testator shall pass by substitution to his qualified issue. The qualified
issue shall take pursuant to the preceding sentence regardless of whether or
not the deceased person dies before or after the making of the will. Where a
devise or legacy of any interest in property is given to a person as a member
of a class and the person predeceases the testator and is not survived by
qualified issue, then, unless a contrary intent is indicated by the will, the
entire interest of such person shall devolve upon the members of the class who
survived the testator and the qualified issue of any members of the class who
predeceased the testator, taking by substitution as herein provided.
(b) The term "qualified issue"as
used in subsection (a) means issue of the deceased person who would have been
an heir of the testator under the provisions of the Intestate Succession Act
had there been no will.
(c) If subsection (a) is not applicable and
if a contrary intent is not indicated by the will:
(1) Where a devise or legacy of any interest
in property is void, is revoked, or lapses or which for any other reason fails
to take effect, such a devise or legacy shall pass:
a. Under the residuary clause of the will
applicable to real property in case of such devise, or applicable to personal
property in case of such legacy, or
b. As if the testator had died intestate
with respect thereto when there is no such applicable residuary clause; and
(2) Where a residuary devise or legacy is
void, revoked, lapsed or for any other reason fails to take effect with respect
to any devisee or legatee named in the residuary clause itself or a member of a
class described therein, then such devise or legacy shall continue as a part of
the residue and shall pass to the other residuary devisees or legatees if any;
or, if none, shall pass as if the testator had died intestate with respect
thereto.
(d) Renunciation of a devise or legacy shall
be as provided for in Chapter 31B of the General Statutes.
(a) Unless the will indicates a contrary intent, if a devisee predeceases the testator, whether before or after the execution of the will, and if the devisee is a grandparent of or a descendant of a grandparent of the testator, then the issue of the predeceased devisee shall take in place of the deceased devisee. The devisee's issue shall take the deceased devisee's share in the same manner that the issue would take as heirs of the deceased devisee under the intestacy provisions in effect at the time of the testator's death. The provisions of this section apply whether the devise is to an individual, to a class, or is a residuary devise. In the case of the class devise, the issue shall take whatever share the deceased devisee would have taken had the devisee survived the testator.
(b) Unless the will indicates a contrary intent, if the provisions of subsection (a) of this section do not apply to a devise to a devisee who predeceases the testator, or if a devise otherwise fails, the property shall pass to the residuary devisee or devisees in proportion to their share of the residue. If the devise is a residuary devise, it shall augment the shares of the other residuary devisees, including the shares of any substitute takers under subsection (a) of this section. If there are no residuary devisees, then the property shall pass by intestacy.
(c) Renunciation of a devise is as provided for in Chapter 31B of the General Statutes.
(d) As used in this section, 'devisee' means any person entitled to take real or personal property under the provisions of a will."
Section 2. This act becomes effective January 1, 2000, and applies to estates of decedents dying on or after that date.